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Trains, Planes, and Pipeline Lanes: Municipalities and the Federal Government

Presented By: Kathleen Higgins and Olga Rivkin

June 17, 2015

Pipeline Lanes!

• Why does this topic matter?

Transportation Issues

• Railways• Lac-Mégantic Tragedy

> Train derailment spilling approximately 6 million litres of petroleum crude oil. 42 casualties.

• Vancouver vs. CP Railway> Railway pressures City to purchase railway along

the Arbutus Corridor


• Pipelines• Kinder Morgan Trans Mountain Expansion• Enbridge


• Potential for Spills• Increased tanker traffic means increased risk

of marine spills• Pipeline ruptures


• Dangerous Goods • Information sharing issues• Local emergency preparedness• Potential for serious harm

• Goals and overview for today’s presentation

Goals for Today

• Set out the relevant Federal players and the legal playing field• Federal government’s authority over

transportation issues• Relevant transportation legislation and

regulatory bodies• Who governs what and how?

Goals for Today

• Local Government Options for Influence• Bylaws• Participation in Federal Regulatory Proceedings• Challenges to Federal Legislation • Challenges to Decisions of Federal Bodies• Non-Legal Options

> Lobbying/Policy Influence> Cooperation with Federal Governmental Authorities> Public Pressure and the Media

• Part 1: Jurisdiction and Authority

Federal and provincial undertakings

• The Constitution Act, 1867 recognizes the federal and the provincial governments, and lists matters – undertakings – within their authority

• Federal (ex.): navigation and shipping, criminal matters, interprovincial transportation

• Provincial (ex.): property and civil rights, municipal institutions, local matters

Sources of local government authority

• Local governments are statutory entities created by the province

• The main sources of authority for local governments in British Columbia are the Community Charter and the Local Government Act

• Other statutes include the Environmental Management Act, the Freedom of Information and Protection of Privacy Act, the Island Trust Act, the Interpretation Act and more

Limits on local government authority

• Municipalities can do only what provincial statutes enable them to do (for proper municipal purpose)

• Municipalities cannot impair a federal undertaking

• Municipalities cannot make it impossible to comply with a federal or a provincial enactment (some statutes set out a different relationship)

How does the analysis work?

• Is the bylaw valid (is it within the authority of a local government?)

• Does the bylaw apply to an undertaking (or is the undertaking immune?)

• Does the bylaw apply to the actor (or is the actor immune?)

• Is there a superseding (paramount) law?

Is the bylaw valid?

• Quebec (Attorney General) v. Lacombe(SCC) - 2010 • Municipal zoning bylaw prohibits “water

aerodromes” or “aeronautics” uses on lake• Bylaw invalid because, on the specific facts

of Lacombe, the bylaw did not “further the general function” of land use legislation, but rather was a “stand-alone prohibition”

Is the bylaw applicable to the undertaking?

• Quebec (Attorney General) v. Canadian Owners and Pilots Association (SCC) -2010• Provincial land use regulation prohibiting all

non-agricultural uses in agricultural areas• Regulation is valid but inapplicable to the

extent that it regulates the location of aerodromes

Is the bylaw applicable to the actor?

• Section 17 of the federal Interpretation Act exempts the federal government from all enactments, except as specifically stated

• Section 14 of the BC Interpretation Act states that all enactments apply, except those that bind the government in the use of land, planning, services…

Is there a superseding law?

• Attorney General (British Columbia) v. Lafarge Canada Inc. (SCC) - 2007 • Lafarge proposed to build a ship offloading

and concrete facility on waterfront lands owned by Vancouver Port Authority (VPA)

• Municipal height restrictions inoperative because they conflicted with regulations made under the Canada Marine Act

Overlapping jurisdiction

• There may be overlapping federal, provincial and municipal laws

• Assuming all are lawfully enacted, all will have force unless there is a conflict in operation

• For example: pesticide use, gaming and gambling, taxi licensing…

• Part 2: Planes

“Aeronautics” falls within federal jurisdiction

• Aeronautics not mentioned in Constitution Act 1867 (not surprising)

• Federal Government given authority to make laws “Laws for the Peace, Order, and good Government of Canada”• Johannesson v. West St. Paul

> Aeronautics falls under “peace, order and good Government” jurisdiction

Laws and regulatory bodies

• Legislation (not an exhaustive list)• the Canada Transportation Act• the Aeronautics Act

• Regulatory Bodies• Transport Canada• Canadian Transportation Agency• NAV Canada (non-governmental)• Transportation Safety Board

• Part 3: Trains

Joint federal and provincial jurisdiction

• Provinces given authority over “Local Works and Undertakings” except for:

> “…, Railways, … connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province”

• Thus, federal jurisdiction only if the railway is “interprovincial” in nature

Federal laws and regulatory bodies

• Legislation (not an exhaustive list)• the Canada Transportation Act• the Railway Safety Act• the Transportation of Dangerous

Goods Act• the Canadian Transportation

Accident Investigation and Safety Board Act

• Regulatory bodies• Transport Canada• Canadian Transportation Agency• Transportation Safety Board

Provincial laws and regulatory bodies

• Legislation (not an exhaustive list)• the BC Railway Act• the Railway Safety Act• the Safety Standards Act

• Regulatory bodies• BC Safety Authority (compliance with RSA

and SSA)• Ministry of Transportation and Infrastructure

Is the railway federal or provincial?

• Operational, not just physical, connection• United Transportation Union v. Central

Western Railway Corp.• Local railway operates only within the

province, but transports grain to CN Rail’s interprovincial railway

• Physical connection insufficient; railway was not itself operational interprovincially

• Part 4: Pipeline lanes

Joint federal and provincial jurisdiction

• Federal Government’s jurisdiction over… • “Lines of Steam or other Ships, Railways, Canals, Telegraphs,

and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province”

• Same “operational connection”requirement as railways

Federal laws and regulatory bodies

• Legislation (not an exhaustive list)• the National Energy Board Act• the Canada Environmental Assessment Act

• Regulatory Bodies• The National Energy Board• Canadian Environmental Assessment Agency

Provincial laws and regulatory bodies

• Legislation (not an exhaustive list)• the Oil and Gas Activities Act• the Petroleum and Natural Gas Act• the Utilities Commission Act

• Regulatory bodies• British Columbia Utilities Commission• Oil and Gas Commission

Gas processing plant located in BC subject to federal jurisdiction

• Westcoast Energy v. Canada, [1998] 1 SCR 322 • Gas transported into an interprovincial

pipeline operated by the same company• Processing plants and interprovincial

pipelines managed as a single enterprise• Thus, an interprovincial undertaking subject to

federal jurisdiction

Pipeline not necessary for the whole operation is not federal

• Reference re National Energy Board Act (Canada) (FCA) – 1987• Cyanamid Canada Pipeline Inc.’s bypass

pipeline operated solely within Ontario • Pipeline connected to TransCanada Pipelines

Limited’s meter station • TCPL operations are interprovincial, but

pipeline not necessary for the whole operation, therefore, not federal

• Part 5: Declaratory power

Federal Declaratory Power

• Federal jurisdiction also applies to: “Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or More of the Provinces”

• Declaration can deem an otherwise local undertaking to be under federal jurisdiction

Legal Options for Influence

Bylaws• Pith and Substance

• Determine the purpose and effect of the law• Municipalities only have jurisdiction to pass a law in

relation to a subject matter under Provincial jurisdiction• If the law is within Provincial jurisdiction, it can have an

incidental effect on Federal Subject Matters

• Interjurisdictional Immunity• No incidental effects permitted if it impairs a “core” of the

other Government’s jurisdiction over the subject matter• Bylaws inapplicable if they are within Provincial/Municipal

jurisdiction, but nevertheless impair the Federal “core”

• Paramountcy• Where a valid Provincial, or Municipal, law conflicts

with a valid Federal law, the Federal law applies to the extent of the conflict

• “Conflict” = impossibility of simultaneous operation> Complying with one requires contravening the other; or> Complying with one would frustrate the purpose of the other

• Thus, bylaws must…• Be “pith and substance” within a Provincial jurisdiction• Not impair a “core” of Federal Jurisdiction• Not conflict with a valid Federal law

Zoning Bylaws

• Zoning bylaws regulate the use of property within a municipality• Provinces granted jurisdiction to make laws regarding

“Property and Civil Rights in the Province”• This authority may still run afoul of Federal Jurisdiction

• Example: Comox Strathcona (Regional District) v. Hansen• Municipality amends zoning bylaw to remove “airports”

from permitted uses• Resident later acquires approval from Transport Canada to

use the land as landing strip• Municipality seeks injunction to restrain landing strip use

Comox Strathcona (Regional District) v Hansen

• Court: “Pith and substance” of the bylaw is land use zoning, not aeronautics • BUT, prohibition of landing strip use impairs

the “core” of Federal Government’s jurisdiction over aeronautics

• Bylaw read down to the extent that it applies to airfield

Construction Bylaws• Regulating local construction practices

• Provinces granted Jurisdiction to make laws regarding “Property and Civil Rights in the Province”

• Issues arise when the bylaws’ construction standards affect the operation of Federal undertakings• Two examples from

cases regarding the construction of airports

Construction Bylaws• Greater Toronto Airports Authority v.• Mississauga

• City attempts to enforce Provincial Building Code and local Bylaws on construction of airport upgrades

• Court: Building Code and Bylaws inapplicable> Found that Building Code and Bylaws would prescribe

certain elements regarding the design and construction of the airport’s new buildings

> “a direct effect on [the airport’s] operational qualities, and, therefore, upon its suitability for the purpose of aeronautics”

• Thus inapplicable

Construction Bylaws• Burlington Airpark Inc. v. Burlington (City)

• City attempts to enforce bylaw regulating the use of fill on construction of airport upgrades

• Court: Regulating the use of fill was not an attempt to regulate the operation of aerodromes for the purposes of aeronautics

• Regulating fill quality will not have any direct effect on theoperational qualities of the product

> “requiring Airpark to use clean fill regulated by the municipality for the benefit of other residents in the municipality will not be permanently reflected in the structure of the finished product”

• Bylaw does not impair federal authority over aeronautics. Thus, the Bylaw was applicable

Street and Traffic Bylaws

• Local governments also have power to enact Street and Traffic Bylaws• Falls under Provincial Jurisdiction over “all Matters of a

merely local or private Nature in the Province”• Can this apply to restrict access rights of Federal

Undertakings?

• Burnaby (City) v. Trans Mountain Pipeline ULC• TMP applied to expand its pipeline running through

Burnaby Mountain. NEB required environmental studies.• City sought to prohibit TMP from carrying out these studies

unless TMP complied with the City’s Parks Regulation Bylaw and Street and Traffic bylaws

Burnaby (City) v. Trans Mountain Pipeline ULC

• Court: Refused to issue the injunction• Matter to be decided by the NEB hearing• NEB does not have the power to declare a bylaw to be

invalid, but it can issue orders that treat the provision as invalid for the purposes of the matter before it

• NEB decided that thebylaws areinoperative due toparamountcy or interjurisdictionalimmunity

Bylaws and Provincial Legislation(LNG and Coal)

• Coal and LNG sectors generally under provincial jurisdiction• Provincial Legislation

> the Mines Act> the Oil and Gas Activities Act> the Petroleum and Natural Gas Act> the Environmental Management Act

• Potential for Conflict with Municipal Enactments

Export of Energy Products & Municipal Bylaws

• Currently 19 LNG proposals on the books• PETRONAS (Pacific NorthWest LNG)

• MOU with the province has been signed• Tentative Investment Decision Expected

> Lax Kw’alaams opposed to plan > Awaiting Canadian Environmental Assessment

Agency Report and Minister Recommendation

• Key consideration is federal governments jurisdiction over “Navigation and Shipping”

Attorney General (BC) v. Lafarge Canada Inc.

• Lafarge proposed to build a ship offloading and concrete facility on waterfront lands owned by Vancouver Port Authority (VPA)

• Land also covered by Vancouver zoning and development bylaws

• SCC found municipal bylaws to be inoperative as they conflicted with regulations made under the Canada Marine Act

• Takeaways:• Municipal bylaws not automatically precluded• LNG and Coal export facilities may similarly be subject to

municipal bylaws

Participation in Federal Regulatory Proceedings

• Bylaws only valid if their “pith and substance” falls under Provincial Jurisdiction• Cannot conflict with existing

Federal Laws• Cannot impair a “core” of Federal

Jurisdiction

• Directly influencing Federal Matters may require participation in decision-making process

Participation in Federal Regulatory Proceedings

• National Energy Board Act allows for participation in an application hearing

• An individual, company, organization, or group may apply to participate

• Applicant must demonstrate to the Board’s satisfaction that they are:a) directly affected by the proposed project; and b) have relevant information or expertise for the Board to consider

Intervenor Status

• Intervenors are able to fully participate in the public hearing process for proposed projects

• Trans Mountain Pipeline Project> Intervenor status granted to the City of Vancouver, Burnaby,

Coquitlam, and New Westminster

• Port Moody’s Mayor Clay> “it’s the only opportunity to get our two bits in”

• City of Surrey Counselor Bruce Hayne > “[w]e want to go in as a representative of the city so we can

take part in critical issues that are discussed.”

Intervenors: Adding Motions

• With Intervenor status, municipalities can also attempt to broaden the issues• Vancouver sought to include climate change and

“socio-economic effects” of oil sands development in the Kinder Morgan hearings

• Board ultimately denied this motion> Held that the motion would bring in considerations

outside scope of those required of the Board• Possible that other motions to broaden issues

before the NEB will succeed, however

Intervenors: Adding Motions

• Intervenors have had success in obtaining additional information• Kinder Morgan released a redacted emergency response plan. • Board: Public interest outweighs Kinder Morgan’s request to

keep its emergency management program confidential. • Kinder Morgan given until October 17 to release the information

to Intervenors• The new ruling instructs Kinder Morgan to keep any redactions

narrow and to provide justifications for them.

• However, Kinder Morgan ultimately successful in keeping more than 70 sections of plan secret

Participation as a Member of the Public

• Municipality can apply as a commentator• Provides Board with a written letter setting out

its position on the public hearing’s issues • Commentator Status

• Less onerous than Intervenor participation• NEB does not accept unsolicited Letters of

Comment • Letters of Comment become public documents

accessible through the NEB’s website

Legal Challenge to Constitutionality of a Federal Law

• Standing: The applicant must establish…1) A serious issue as to the validity of the legislation2) That the applicant has a genuine interest in the

legislation’s validity3) That the proposed litigation is a reasonable and

effective means to bring the challenge to court• Must also give notice to the Attorney General

before challenging the constitutional validity of legislation before a Federal Court or Board

Recent Example from Burnaby• City of Burnaby challenge to NEB Act provision that

grants Kinder Morgan access to city lands • Valid in opposition to the City’s Traffic and Parks bylaws?

• Kinder Morgan applied to the NEB for an order against the City of Burnaby • NEB decided that the bylaws are

inoperative due to paramountcy or interjurisdictionalimmunity

• City officials ordered to refrain from blocking access to Burnaby Mountain

Legal Challenge to a Decision made by a Federal Regulatory Body

• Vancouver sought review of NEB process• Previous motion to expand issues to consider climate

change denied by NEB• Application to Federal Court of Appeal for judicial

review of the NEB’s process was denied• Argued that NEB is refusing to consider the pipelines’

impact on global climate change• Ecojustice seeks judicial review of Port Metro

Vancouver’s approval of coal transfer facility• Cites PMV’s inadequate public consultation and

failure to consider climate impact

Adoption of resolution not to do business with a specific company

• Shell Canada Products Ltd. v. Vancouver (City)• Vancouver adopted resolution not to do business with

companies working in South Africa’s apartheid regime• Court quashes resolutions as outside of City’s

authority to act for “municipal purposes”• Dissenting judgment ultimately

received more support in ensuing cases!

> Dissent delivered by Beverley McLachlin, now Chief Justice of the Supreme Court of Canada

Beverley McLachlin• “Recent commentary suggests an emerging consensus that

courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold”

• “…courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them. This is important to the continued healthy functioning of democracy at the municipal level. If municipalities are to be able to respond to the needs and wishes of their citizens, they must be given broad jurisdiction to make local decisions reflecting local values”

Shell Canada Products Ltd. v. Vancouver (City)

• Dissent illustrates the Court’s growingacceptance of the role of local governments

• Municipalities embody the values of the local community

Non-Legal OptionsLobbying/Policy Influence

• Union of British Columbia Municipalities• Policy conventions, representations to

cabinet, meetings with Ministers• 2010 resolution opposing Enbridge in contrast

to principles of BC Climate Action Charter> Minister of Energy response affirms commitment to

ensuring that development is environmentally responsible and scientifically sound


• Union of British Columbia Municipalities• April 24, 2015 UBCM met with NEB to discuss

concerns re:> Pipeline Safety> Environment> NEB Infrastructure

• UBCM resolutions regarding NEB hearing process and Safety Plans, as well as other local government concerns, directly to NEB chair and CEO, Peter Watson


• Federation of Canadian Municipalities• Consolidation of over 2000 municipalities

addressing matters of Federal Jurisdiction> Provided comments on prosed railway regulations> Appeared at House of Commons Transport

committee to discuss rail safety> Established “National Municipal Rail Safety

Working Group” to demand greater disclosure and cooperation between rail companies, federal bodies, and local government.


• Federation of Canadian Municipalities (FCM)• Bill C-52 the Safe and Accountable Rail Act

• Minimum insurance requirements• Levies for crude oil shippers• Enhanced oversight• Information sharing

• Ongoing Input by the FCM Working Group


• Federation of Canadian Municipalities> City of Burnaby submitting an emergency

resolution regarding oil spill response concerns to the FCM and the UBCM

> Burnaby council concerned about what a similar spill to English Bay could do in Burnaby waters


• Federation of Canadian Municipalities> www.proximityissues.ca> FCM and Railway Association of Canada

collaborate through a MOU> Objective: Assist stakeholders with becoming

aware of proximity issues and provide information to assist with resolving issues

• Guidelines for New Development in Proximity to Railways

> Guidelines for municipalities to assist in proactively avoiding proximity conflicts

Cooperation with Federal Governmental Authorities

• YVR Airport in Richmond• Federal Jurisdiction over Airports• City staff members sit on Airport Noise

Committee

• Vancouver Port Authority (VPA)• VPA consults with City of Vancouver for

development projects • City gives “advice and recommendations” as

development permits unnecessary after Lafargedecision

Public Pressure

Public Pressure

• Denying Public’s “Social Licence”• Example: Kitimat plebiscite to oppose the proposed

Northern Gateway oil pipeline

• Local plebiscite does not have force of law • But illustrates how industry groups have yet to obtain a

“social licence to operate”• Pressure to continue to improve consultation and

cooperation

Public Pressure

• Vancouver Airport Project Opposition for Richmond (VAPOR)• Citizens’ group opposed to jet fuel pipeline from South Richmond

to Vancouver International Airport, and tank farm• December 2013, the province announced that a conditional

environmental assessment certificate would be issued for the project

• VAPOR applied for judicial review of the procedural fairness of the consultation process

Public Pressure

• Tsleil-Waututh Opposition to Trans Mountain Expansion• Independent assessment indicates “unacceptable risk” to

environment and band’s culture• “…79% to 89% likelihood of a spill in the inlet in a 50-year

period…” • Calling the NEB process flawed• Withholding consent for the expansion project in their territory• In addition to potential legal challenges, indication that it will be

made an election issue

Media

• Burnaby Mayor vows to block bulldozers• Vancouver Deputy City Manager criticizes to NEB’s

review process• Only 60% of questions answered• “it’s really become quite undemocratic, the way the

NEB is running the process...”

Media

• Mayor Derek Corrigan • “If we go to court, we’re going to go to court with

clean hands and ensure we’ve done everything humanly possible before I stand with you and probably 10,000 other people and get arrested to stop this”

• “That’s a hard thing to promise for a lawyer and a mayor. It will probably be the end of my career. But if I end my career on that note, it will be something that I’m very proud of, that I stood my ground”

Conclusions

• Transportation issues pose great importance for local communities

• Oftentimes large-scale projects are subject to Federal Jurisdiction

• Although Federal Jurisdiction presents hurdles, influence is not impossible

Conclusions

• Federal Jurisdiction is rarely all-encompassing• Local Rails subject to Local bylaws• Interprovincial projects without “operational”

connections considered “local undertakings”• Bylaws can have incidental effects

• Options for participation in decision-making procedures• Intervenor status• Legal challenges to decisions and laws

Conclusions

• Non-Legal Options provide opportunities to make concerns known• Policy Development with other Municipalities• Cooperation with Federal Authorities• Public Pressure/Media

Conclusions

• As local communities ultimately bear the costs of development, they deserve to have their concerns heard

• By making use of all the available options, Local Governments can help safeguard their communities and exert influence on Federal Transportation Issues

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