The City of Burnaby, B.C., is refusing to back down from its fight with Kinder Morgan, saying it plans to appeal a National Energy Board decision granting the energy giant access to a municipal conservation area.

The city has tried in recent months to block the company from conducting survey work in the area on Burnaby Mountain — Kinder Morgan's preferred route for the expansion of the Trans Mountain Pipeline.

But the energy board ruled last week that Burnaby can't stop the company's activities because the geotechnical work is needed by the board so it can make recommendations to the federal government about whether the project should proceed.

Burnaby Mayor Derek Corrigan says he wasn't surprised by the NEB ruling, but he questions the energy regulator's legal authority to consider constitutional questions relating to municipal bylaws.

Such a power has never been previously found to exist in any prior board decision or by any court, he said.

"We are disappointed but not surprised by this ruling," he said in a written release on Tuesday.

"We believe that it is inappropriate for the National Energy Board to rule on the critical constitutional issue of whether a multinational pipeline company can override municipal bylaws and cause damage to a conservation area, for a project that no level of government has deemed to be in the public interest."

Unprecedented move

Lawyer Greg McDade, who is representing the City of Burnaby, said he believes no federally appointed panel should have the power to rule on municipal laws or enforcement powers.

"It doesn't exist in the NEB Act, and it has never been claimed before by any federal tribunal," he said.

The board disagrees on the extent of its powers, saying in a statement last week that it found it does have the legal jurisdiction to override municipal bylaws.

Stumps and branches of trees that were cut down by workers hired by Kinder Morgan are seen in the Burnaby Mountain Conservation Area, in Burnaby, B.C., on Wednesday September 10, 2014. (Darryl Dyck/Canadian Press)

The order forbids the City of Burnaby from undertaking any bylaw enforcement. It also says Kinder Morgan must give the city written notice of work 48 hours in advance and must remediate any damage.

It is the first time the National Energy Board has ever issued an order to a municipality.

Burnaby and Kinder Morgan have been locked in battle over the $5.4-billion pipeline expansion, with both sides filing duelling legal actions in court and applications with the National Energy Board.

The expansion would almost triple the capacity of the existing pipeline between Alberta and the B.C. coast to about 900,000 barrels of crude a day.

