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 wants Burnaby's blessing to begin surveying, even though it says it doesn't need it now. It's expecting an application made to the municipality to be approved in light of the NEB ruling.

Project leader Carey Johannesson told the CBC he thinks the ruling is pretty clear.

"[The ruling] doesn't mean that we're not going to be trying to work with Burnaby, but it does just clarify things for us," said Johannesson.

"We could essentially start anytime we want to...Our expectation is that with some of the things that are easier to do we could probably get started this week."

Burnaby mayor vows to fight on

However, Burnaby's mayor's office issued a statement vowing to block the company's access to parkland and conservation areas.

“We launched our Constitutional challenge because we absolutely believe that our bylaws trump the act in this case. We continue to believe this to be true and nothing the board said today changes that fact." said Mayor Derek Corrigan in the statement.

"We will, therefore, continue to enforce our bylaws, ensuring that Kinder Morgan does not access Burnaby parkland and the Brunette Conservation area on which they want to perform deleterious actions that would contravene the laws put in place by our City and citizens to protect our parkland."

The city's legal council Greg McDade told the CBC, "The situation as it stands is that the company has permission in effect from the NEB, under its legislation, to access the site. But it doesn't have permission to overrule Burnaby's by-laws and Burnaby's by-laws may prohibit some of the activities they were intending to do."

Preferred Trans Mountain pipeline route

Kinder Morgan would prefer to bore its pipeline through the mountainrather 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.

Pipeline report delayed by Burnaby dispute

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.

Kinder Morgan 20140522

Canoeists paddle canoes past the Kinder Morgan facility in Burrard Inlet in North Vancouver, on May, 22, 2014. There are concerns about the safety of oil storage if Kinder Morgan receives approval to triple the capacity of its pipeline. (Jonathan Hayward/ Canadian Press)

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.

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 archaeological 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 a position," he said. "We're still going to be reaching out and trying to work with them."

With files from the CBC's Chad Pawson