Burnaby won’t participate in CER hearing over Trans Mountain fire lanes

The City of Burnaby has declared that it will not be participating in hearings this week in a dispute with Trans Mountain over fire access lanes.

The city and the federal Crown corporation have been at loggerheads about the city’s denial of building permits at the Burnaby and Westridge Marine terminals of the pipeline.

The dispute was set to go to a hearing before a Canada Energy Regulator panel on Friday, after the regulators received correspondence from both parties, and from the Province of Alberta, submitting evidence to support their arguments.

But in a letter to the CER earlier this week, the city said it will not be participating in the hearings.

“[The city] will rely upon the evidence and argument produced to date. It will not engage in cross-examination of Trans Mountain witnesses, nor have the city’s witnesses attend to give further evidence,” wrote Gregory McDade, with the law firm Ratcliff, on behalf of the city in a Jan 24 letter.

“This position is consistent with the written argument of the city filed on January 12, which stated: ‘This argument is produced on the assumption that the evidence has closed in this matter, and that [the city] will not be required to participate further.’”

The city said it leaves the matter “in the hands of the commission.”

Trans Mountain will still participate in CER hearing

The letter was submitted days after Burnaby Residents Opposing Kinder Morgan Expansion (BROKE) submitted to the CER their own letter of support for the city.

In emails with Burnaby Beacon, members of BROKE said they were dismayed by the decision.

“I think it indicates that Burnaby has no respect for the fairness of CER. So why bother,” said Karl Perrin, a resident living in the UniverCity neighbourhood on Burnaby Mountain.

“But that’s surprising after having gone to so much effort already.”

In a letter filed with the CER on the same day, Trans Mountain said it was prepared to go to a hearing on the matter.

“Trans Mountain had intended to cross-examine Burnaby’s affiants, … who Burnaby now says will not be available for cross-examination (despite the commission’s direction that they should be presented for that purpose),” wrote Sander Duncanson, with the law firm Osler, on behalf of Trans Mountain.

“The commission has recognized that non-attendance of participants’ affiants may be taken into account in assigning the weight given to their evidence.”

“Trans Mountain is determined to proceed under the minimum standards and simply wants to ignore the ‘more stringent’ fire services bylaw and seeks to have the CER support it in its lower safety standards.”

Photo: Trans Mountain

Trans Mountain said it will still be ready for a hearing on Friday, making the company’s witnesses available for questions from the commission.

The company also wants an opportunity to deliver oral statements in order to respond to the city’s latest statement to the commission.

The city did not respond to a request for comment on their non-participation by deadline.

Burnaby responds to Trans Mountain’s response

On Jan 12, the city sent another letter to the CER arguing its case against Trans Mountain.

The city denied the building permits because the plans do not meet the city’s minimum standards for fire access lanes. But Trans Mountain argues that the lanes meet the somewhat less stringent standards in the BC Building Code and meet the “intent” of the building code.

In the Jan 12 letter, the city called that argument “simply specious and quite unsupported.”

The purpose of the fire services bylaw is to “improve upon the minimum standards” in the building code, standards that Trans Mountain’s proposal does not meet.

“Trans Mountain is determined to proceed under the minimum standards and simply wants to ignore the ‘more stringent’ fire services bylaw and seeks to have the CER support it in its lower safety standards,” McDade wrote.

“This is the exact opposite of the intent of the bylaw.”

And in early January, Trans Mountain argued it was not feasible to build fire lanes fully to the specifications required by the city without compromising safety.

More pressure on Trans Mountain’s fire plan

In the Jan 12 letter, the city said Trans Mountain’s application “was simply deficient,” failing to meet the standards applied to any commercial or industrial development.

The city also declined to take a position on whether it was technically possible to meet the standards.

“That is out of Burnaby’s role or expertise, and [the city] accepts that it is the role of the commission to determine whether the technical information supplied by the company is sufficient to justify an exemption from Burnaby’s bylaws,” McDade wrote.

“In Burnaby’s view, the evidence supplied by Trans Mountain to date is insufficient to properly determine impossibility of dual compliance or frustration of purpose, but Burnaby will leave that decision to the commission.”

“I think it indicates that Burnaby has no respect for the fairness of CER. So why bother. But that’s surprising after having gone to so much effort already.”

Photo: Dustin Godfrey / Burnaby Beacon

The city also responded to Trans Mountain’s argument that fire lanes were not vital because the Crown corporation has its own firefighting infrastructure, saying the city would accept the commission’s decision if it sides with Trans Mountain.

“However, in the event that Burnaby Fire Department will have no role in emergency response in the future, then, as noted by Trans Mountain in their submission, it will be essential that the commission require a very strong process for determining fire safety in the future,” McDade wrote.

He added that the city plans to attend hearings on Trans Mountain’s fire safety plan, “as the fire safety capacity within the terminal sites has very significant impacts upon the citizens of Burnaby.”

“The city continues to be concerned that the fire and emergency risk of the terminal sites in a crowded residential area is unacceptable, and that the fire safety and emergency response capacity of Trans Mountain is not sufficient to the risk,” reads McDade’s letter.

“The design presented to the [now-defunct National Energy Board] was on the assumption that it followed all bylaw and safety requirements, an assumption which has now been shown to be incorrect.”

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