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NEB rules in favour of Kinder Morgan over Burnaby Mountain access

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VANCOUVER - The National Energy Board has sided with Kinder Morgan in a dispute with the City of Burnaby over access to Burnaby Mountain.

The company can proceed with necessary studies of its preferred pipeline route through the mountain without the city's consent.

In a decision released Tuesday, the National Energy Board confirmed that under federal legislation the company doesn't need permission to access the land that is home to Simon Fraser University and a vast nature preserve.

"It would not be logical that the Board be required to recommend approval or denial of a project without all necessary information before it," the board said in a decision posted online. "This would not be in the public interest."

Kinder Morgan would prefer to bore its pipeline through the mountain, rather than follow the current pipeline route through residential and business areas.

The federal National Energy Board Act stipulates that a company may enter into the land of any person that lies on the intended route to survey or otherwise ascertain whether the land is suitable, the board found.

The company does not require an order from the national regulator for temporary access, it said.

"There is no requirement ... for companies to reach agreement with landowners, the Crown, or otherwise, before exercising the right to access land," the board said.

It does note that the company could have made a formal request to the city sooner than it did.

"Throughout its submissions ... Burnaby mischaracterizes the nature of Trans Mountains' request," the board found.

The dispute has already caused a seven-month delay in the regulatory process.

The board panel will not have its final report to cabinet until Jan. 25, 2016. Under the original schedule, the report was due July 2, 2015.

The $5.4-billion expansion project would almost triple the current capacity, from 300,000 barrels of oil a day to almost 900,000. The City of Burnaby opposes the expansion.

In documents filed to the board, the city said "the 'engagement' that Trans Mountain is requesting appears in some cases to constitute support or pre-approval by Burnaby.''

In other cases it's akin to city staff helping the company to meet its obligations to the National Energy Board, it said.

Project leader Carey Johannesson said the company tried for more than a year to come to some agreement with the Metro Vancouver city.

Initial studies can begin within days, he said.

"For us, it gives us the ability to be able to do the survey work — the engineering, environmental and archeological survey work — that we need to be able to do to satisfy the NEB," said Johannesson.

"The first thing we need to do is see whether that's technically feasible."

Johannesson was circumspect about the dispute.

"We respect that they've got a perspective and an position," he said. "We're still going to be reaching out and trying to work with them."

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