Energy and Mines News:

Burnaby, BC, Loses Court Battle over
Trans Mountain Pipeline
The City of Burnaby's bylaw battle against the Trans Mountain pipeline has been shut down by a BC Supreme Court judge who has declared that the National Energy Board rules take precedence over the city's. The Metro Vancouver city has tried to hamper preliminary planning in advance of laying the 1,100-kilometre-long pipeline between Alberta and coastal BC through two separate bylaws. But Justice George Macintosh said in a ruling posted online [November 23^rd] that the National Energy Board has the constitutional power to direct or limit the enforcement of Burnaby's bylaws. Macintosh said the energy board can take such action when city bylaws interfere with or block the regulation of the pipeline and expansion project, ruling NEB laws are supreme. "Where valid provincial laws conflict with valid federal laws in addressing interprovincial undertakings, paramountcy dictates that the federal legal regime will govern," said Macintosh. "The provincial law remains valid but becomes inoperative where its application would frustrate the federal undertaking." Macintosh ruled the city's bylaws were lawful but constitutionally inoperative and inapplicable. Read The Globe and Mail article. 

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decisions released in the month of November:

Wildlife Act

• Ryan Damstrom v. Regional Manager (Kootenay Boundary Region) [Final Decision – Appeal Dismissed]

Environmental Management Act

• Emily Toews; Elisabeth Stannus v. Director, Environmental Management Act [Reconsideration Decision; Preliminary Issue of Standing to Appeal – Granted]
• Unifor Local 2301 v. Director, Environmental Management Act [Reconsideration Decision; Preliminary Issue of Standing to Appeal – Granted]
• Geoffrey Nielson; Thomas H. Coape-Arnold; Kenneth R. Fiddes v. Director, Environmental Management Act [Preliminary Application – Allowed in Part]

Water Act

• Greengen Holdings Inc. v. Regional Water Manager [Preliminary Application to Dismiss the Appeal – Granted; Application for Costs – Denied]

Visit the Environmental Appeal Board website for more information.

"Polluter Pays" Wins the Day: BC Court of Appeal
Decides Significant Contaminated Sites Case
The BC Court of Appeal has upheld a trial decision that requires the historical polluter of James Island to pay the current landowner $4.75 million for monies spent remediating a contaminated site on the island. This award is the largest of its kind under BC's Environmental Management Act ("EMA"). The decision is significant for reinforcing that the concept of "polluter pays" under BC's contaminated sites legal regime is paramount, despite the polluter's attempts to negate or reduce its liability by pointing to its prior efforts to remediate James Island before selling it in 1988. In J.I. Properties Inc. v. PPG Architectural Coatings Canada Ltd., the plaintiff J.I. Properties Inc. argued at trial that it should recover all of its reasonably incurred remediation costs against the defendant and historical polluter PPG Architectural Coatings Canada Inc. ("PPG"). The trial court agreed, awarding $4.75 million. Read the full article by Jana McLean and Michael Manhas of Bull, Housser & Tupper LLP. 

WorksafeBC Reviews Exemption from
Coverage for Out-of-Province
The following discussion paper considers changes to the existing exemption from coverage for employers in the trucking industry. At issue is a review of Item AP1-2-1 Exemptions from Coverage of the Assessment Manual ("exemption policy"). Specifically, whether to change the exemption rules for out-of-province employers in the trucking industry. Also at issue is whether the current wording in the exemption policy could be improved to better reflect how the exemptions work within the larger legal framework. No substantive change to the policy would result from these amendments. Stakeholders have requested a review of the criteria and how these criteria apply to US employers who employ no BC residents, have no base of operations in BC, and already have coverage in their home states ("US carriers"). Read the discussion paper.