A Federal Court of Appeal decision has brought Metro Vancouver one step closer to completing a sewer line project it started more than five years ago on the Burnaby-Coquitlam border.
The regional district has been working on the North Road sewer project in phases since 2019, replacing a pipe between the Brunette River and Clarke Road that collects sewage from Burnaby and Coquitlam on its way to the Annacis Island Wastewater Treatment Plant in Delta.
But the final piece of the line, an overhead pipe over a set of railway tracks just north of the freeway, has been held up in court by BNSF Railway Company, an American company that owns the tracks and adjacent property.
Metro Vancouver already has a 30 mm pipe that crosses the tracks by the North Road vehicle bridge and said the new 630 mm pipe would replace the existing one, according to a Canadian Transportation Agency ruling in January 2023.
Metro Vancouver had applied to the agency for authorization to build the new pipe after the regional district and BNSF were "unsuccessful in reaching an agreement to allow construction on the proposed overhead sewer to proceed," the ruling stated.
Under the Canada Transportation Act, the agency has the power to authorize the construction of "suitable utility crossings" when the parties are unsuccessful in negotiating an agreement related to these matters.
The agency ruled in Metro Vancouver's favour, authorizing it to go ahead with the sewer pipe crossing.
Texas-headquartered BNSF had argued the agency didn't have jurisdiction because the pipe is governed by a 1959 agreement in which Metro Vancouver was granted permission to "attach, maintain and operate" a pipe on the bridge.
BNSF had said Metro's proposed project was "maintenance" under the 1959 agreement.
But Metro Vancouver argued it was a new pipe, a "reconstruction," and the agreement over the old pipe didn't apply.
After the Canadian Transportation Agency ruled in Metro Vancouver's favour, BNSF appealed to the Federal Court of Appeal.
That court upheld the agency's decision this month.
In a unanimous Jan. 17 ruling, the court concluded that the parties who signed the 1959 agreement intended it to apply only to the existing 30 mm pipe for as long as Metro Vancouver maintained and operated it, as originally constructed or repaired.
"I would characterize the proposed new sewage pipe … as the construction of a new utility crossing that entirely replaces the existing utility crossing while substantially changing and improving it in significant ways," Justice K. A. Siobhan Monaghan wrote in the ruling.
Metro has agreed to pay for the cost of building and maintaining the sewer line and for the cost of undergrounding some existing overhead communication lines at the crossing.
In an email, Metro Vancouver told the Burnaby NOW the dispute has delayed the North Road sewer project but said the recent court ruling doesn't mean the work now has the greenlight.
BNSF has 60 days from the date of the decision to appeal to the Supreme Court of Canada.
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