Burnaby residents to block Kinder Morgan’s survey work

Concerned Burnaby residents are ready to block Kinder Morgan from resuming work on Burnaby Mountain, after the National Energy Board ruled Thursday the city can’t stop the survey project for a new pipeline route.

The NEB’s order says Kinder Morgan must give the city of Burnaby 48 hours notice before starting work. It also prohibits the city from blocking Kinder Morgan, even though the land is a city-owned conservation area, and Burnaby is opposed to the pipeline expansion.

Alan Dutton, a member of Burnaby Residents Opposing Kinder Morgan Expansion, said local residents and other concerned individuals are already mobilizing on Burnaby Mountain.

“We have been mobilizing and training people for the last three weeks or so, and we are ready. People will be present on the mountain, occupying the conservation area, as they have a right, and they will be having picnics instead of pipelines,” he said.

There’s been a small group monitoring the area for some time, Dutton explained.

“We have been ready to activate our telephone network to advise people if Kinder Morgan starts to do their work,” he said.

Dutton expects Kinder Morgan to give the city notice within 24 hours, which means the company could start work in a matter of days.

Dutton pointed out that the NEB order only applies to the city of Burnaby, and not to regular citizens and their right to peaceful assembly.

“The NEB decision does not speak to the right of people to use that area,” he said.

“We are going to go as far as the law permits,” he added. “We’re going to apply to the city for a permit to have picnics — not pipelines — in the park, and I’m hoping we’ll have many residents supporting us.”

Dutton, speaking personally and not on behalf of BROKE, also raised the possibility of civil disobedience.

“I believe, personally, in certain circumstances, civil disobedience is a moral imperative, and sometimes it is ethically and morally imperative to oppose laws which are against the will of the people,” he said. “We are having workshops on our legal rights to advise people about what the law entails.”

Stephen Collis, a Simon Fraser University English professor opposed to the pipeline, said there are two phone trees of people who are ready to gather on the mountain. One group is mostly BROKE members, while the others he calls “caretakers” or “citizen rangers,” but the overall group is “large.”

“People are willing to be obstacles, even if that means risking arrest,” Collis said.

Kinder Morgan wants to twin the Trans Mountain pipeline, which carries oil from Alberta to Burnaby. The route in Burnaby will go through new territory, and the company wants to drill or tunnel through Burnaby Mountain.

Kinder Morgan started survey work but stopped when the city of Burnaby ticketed the company for cutting trees in a public park. Kinder Morgan then went to the NEB for the order.

Lisa Clement, a media relations staffer with the Trans Mountain pipeline expansion project, wouldn’t say when work would resume.

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Burnaby to appeal NEB decision granting Kinder Morgan access to city-owned land

METRO VANCOUVER – The City of Burnaby is refusing to back down from its fight with Kinder Morgan, saying it plans to appeal a National Energy Board decision granting the energy giant access to a municipal conservation area.

The city has tried in recent months to block the company from conducting survey work in the area on Burnaby Mountain — Kinder Morgan’s preferred route for the expansion of the Trans Mountain pipeline.

But the energy board ruled last week that Burnaby can’t stop the company’s activities because the geotechnical work is needed by the board so it can make recommendations to the federal government about whether the project should proceed.

Burnaby Mayor Derek Corrigan says he wasn’t surprised by the NEB ruling, but he questions the energy regulator’s legal authority to consider constitutional questions relating to municipal bylaws.

Such a power has never been previously found to exist in any prior board decision or by any court, he said.

“We are disappointed but not surprised by this ruling,” he said in a written release on Tuesday.

“We believe that it is inappropriate for the National Energy Board to rule on the critical constitutional issue of whether a multinational pipeline company can override municipal bylaws and cause damage to a conservation area, for a project that no level of government has deemed to be in the public interest.”

Lawyer Greg McDade, who is representing the City of Burnaby, said he believes no federally appointed panel should have the power to rule on municipal laws or enforcement powers.

“It doesn’t exist in the NEB Act, and it has never been claimed before by any federal tribunal,” he said.

The board disagrees on the extent of its powers, saying in a statement last week that it found it does have the legal jurisdiction to override municipal bylaws.

The order forbids the City of Burnaby from undertaking any bylaw enforcement. It also says Kinder Morgan must give the city written notice of work 48 hours in advance and must remediate any damage.

It is the first time the National Energy Board has ever issued an order to a municipality.

Burnaby and Kinder Morgan have been locked in battle over the $5.4-billion pipeline expansion, with both sides filing duelling legal actions in court and applications with the National Energy Board.

The expansion would almost triple the capacity of the existing pipeline between Alberta and the B.C. coast to about 900,000 barrels of crude a day.

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Kinder Morgan ‘picnic’ protest launched

It was a moment of shock, anger and disbelief.

Alan Dutton was looking out over the Burrard Inlet, from his perch at the top of one of Burnaby Mountain’s cliffs, considering the prospect Kinder Morgan could be putting a pipeline under his feet.

“We were shocked to learn that Kinder Morgan had actually gone into the conservation area and done clear-cutting,” said Dutton, of Burnaby Residents Opposing Kinder Morgan Expansion.

To highlight the clear-cutting, BROKE started a “picnic” protest on Monday in which the mountain is covered with numerous “red and white checkered table clothes” to show where the survey work will go down.

“We’re hoping to build it so that thousands of people will become more aware of what’s going on and be able to mobilize on the mountain,” Dutton said. “People are up on the mountain today (Monday) and people will be on the mountain for the next little while, until we stop Kinder Morgan.”

The group was already opposed to the energy company’s project, but the sight of the cleared trees created a heightened sense of urgency. Just last week, the National Energy Board declared Kinder Morgan could proceed with its survey work regardless of Burnaby’s bylaws that contradict the legality of that same work.

In response to the protest initiative, Kinder Morgan spokeswoman Lizette Parsons Bell said, “We respect the rights of peaceful protest but we must also ensure the safety of staff, the environment and the surrounding community.”

BROKE, which Dutton is a researcher for, has been accepted as an intervener for the National Energy Board hearing of the Trans Mountain expansion project.

Dutton has also contracted seismology and health scientists to create independent reports.

This move, Dutton argued, would bring independent research onto a topic that has mostly seen information presented by Kinder Morgan’s consultants.

He argues Kinder Morgan’s current pipeline — which the company is trying to twin — runs parallel to suspected fault lines and Burnaby Mountain is a seismically active area.

In response to the protest initiative, Kinder Morgan spokeswoman Lizette Parsons Bell said, “We respect the rights of peaceful protest but we must also ensure the safety of staff, the environment and the surrounding community.”

Enviro group launching pipeline legal challenge

A view of the Burnaby Mountain tank farm, where Kinder Morgan stores the crude oil shipped through the Trans Mountain pipeline. Two Burnaby residents and one SFU prof are part of a group launching a legal challenge with the National Energy Board in response to the Kinder Morgan pipeline application. Photograph By Larry Wright/BURNABY NOW
Burnaby residents, environmentalists, academics and business representatives are joining forces to take legal action in response to Kinder Morgan’s plan to expand the Trans Mountain pipeline.

The environmental group ForestEthics launched a constitutional challenge against the National Energy Board Tuesday, claiming the review process unfairly restricts public participation and refuses to hear concerns related to climate change and oil sands development.

Three people with Burnaby connections are involved in the group: Cranberry Commons resident Ruth Walmsley, microbiology professor Lynne Quarmby (who lives in West Vancouver but teaches at SFU) and longtime resident John Clarke.

“I’m doing this not only for myself but on behalf of the hundreds of people who have been denied a voice in the National Energy Board Kinder Morgan hearings,” Walmsley told the NOW. “The narrow definition the NEB is using to decided who is directly affected is effectively excluding thousands of people in this democratic process.”

Walmsley lives about four kilometers from one of the proposed pipeline routes, but her application to participate in the NEB hearing for the pipeline was rejected.

Clarke lives within 100 metres of the old pipeline and 300 metres of the tank farm on Burnaby Mountain. According to a ForestEthics media release, Clarke has worked with Burnaby city council on conservation issues and has experience with leaks at the tank farm. He applied as an intervenor for the NEB hearing but was granted commentator status instead, meaning he can only submit a letter outlining his concerns.

The legal challenge claims the Conservative’s new rules around pipeline hearings are too restrictive.

“Last year, in omnibus Bill C-38, the Harper government snuck in amendments to the NEB process that restrict who can speak before the National Energy Board and limit what individuals are allowed to say,” said ForestEthics spokesperson Ben West in a media advisory.

“It is vital that there be a full a public hearing as to the risks and benefits of this proposal so that the public interest can be properly assessed,” said the group’s lawyer David Martin. “This legal challenge will fight for the public’s right to express itself and be heard.”

At this point, the legal challenge is a motion put forward to the National Energy Board, but the group plans to escalate if that is unsuccessful.

“If they don’t make any changes, it will go to the federal court of appeal and possibly to the Supreme Court if it comes to that,” Walmsley said.

Last week, the Tsleil-Waututh Nation also launched a legal challenge against the National Energy Board, regarding the pipeline.

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The last barrel of oil on Burnaby Mountain

Sometimes the world narrows to a very fine point. A certain slant of light. The head of a needle you need to pass through. I don’t care right now about the National Energy Board of Canada (merely a corporate tool for shoehorning global energy projects into other people’s territories—a funnel for money from the public, to the private sector). I don’t care about this or that court of law, appeals and constitutional challenges. I don’t care about the drones, unmarked cars, or CSIS agents. I don’t even care that much about the rain.
Read more…

Kinder Morgan Canada Pipeline Plans Hits A Mountain Of Opposition

VANCOUVER (Reuters) – A Western Canadian pipeline once seen as the best near-term hope for sending more of the country’s controversial tar sands crude to Asia has hit another snag: aboriginal communities intent on using the courts to block the proposed expansion.

Kinder Morgan Energy Partners’ C$5.4 billion ($4.8 billion) Trans Mountain expansion would twin a 60-year-old line running from the oil-rich province of Alberta to the coastal city of Vancouver, tripling its capacity.

The pipeline expansion had been seen as sure bet because it uses an existing route. But a surge in municipal opposition in recent months has fueled industry worries that it will enter legal and regulatory limbo along with the unbuilt TransCanada Corp Keystone XL and Enbridge Inc Northern Gateway pipelines.

The odds against the expansion are growing. Aboriginal communities along the route, angered by a consultation process they call unfair, are strategizing as a group on legal tactics they hope will stop the project dead.

The expansion would help open international markets for Canadian oil producers, delivering billions in revenues. The National Energy Board is hearing traditional evidence from Aboriginal groups as part of the regulatory review this week.

“The opposition is widespread and it is vehement, so we’re going to continue this fight until the bitter end,” said Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs. “We’re looking at a very litigious future.”

Two aboriginal communities have already filed lawsuits. Others are banding together to develop strategies around negotiations, litigation and possibly direct protest. Aboriginal leaders call it a “new era” of opposition.

Other opponents include environmental groups and municipal leaders like the mayor of Burnaby, the Vancouver suburb that houses the pipeline terminus and its marine facilities. Mayor Derek Corrigan has pledged his city will exercise every legal option to fight any increase in capacity.

“People say to me: you’ve already got a pipeline, you’ve already got a terminal and you’ve already got a tank farm, what’s the big deal,” Corrigan said. “Between the time those were built 60 years ago and today … we’ve built up communities all around that area.”

NOT IN MY BACKYARD

Objections from local politicians and activists have already prompted the National Energy Board to delay its final report on the project by more than six months to January, 2016.

Kinder Morgan is now pushing to run the final leg of the pipeline under the 1200-foot (370 meter) Burnaby Mountain, a conservation area.

The city challenged the company’s right to cut down a few trees to complete surveying work on that route, a battle that ended up in British Columbia’s Supreme Court. Kinder Morgan won that ruling, which is being appealed.

Despite the challenges, the company expects it will bring the project online in 2018 and says it is confident it will stay on budget.

While municipalities can slow pipeline work with red tape, Kinder Morgan has one major factor in its favor: inter-provincial pipelines fall under federal jurisdiction.

“If you’ve got valid provincial or municipal legislation that conflicts with valid federal legislation, then the provincial or municipal legislation has to give way,” said Robin Elliot, a law professor at the University of British Columbia.

This is how governments make it easier to carry out major “nation building” projects like highways, airports and pipelines.

Aboriginal groups, on the other hand, have constitutional rights around consultation and accommodation when projects directly affect their reserves and traditional territories.

Kinder Morgan Canada President Ian Anderson said this month the company has had success in meeting with chiefs, but that maintaining those relationships takes daily work.

ON THE RESERVE

The existing Trans Mountain pipeline passes through 15 aboriginal reserves, with the new twin line expected to pass through roughly nine. Both affect many more traditional territories.

While the company has signed mutual benefit agreements with some aboriginal groups, three in the Vancouver area have publicly opposed the project, as have the Coast Salish in Washington State and other communities along the route.

Opponents are looking at challenging the impact the project would have on their aboriginal rights, which include hunting and fishing on traditional territories, their lawyers say.

Even if the federal government ultimately approves the project, those same groups could argue that Canada did not meet its duty to protect their interests. This could result in years of crippling court actions and appeals.

The challenges to the project will come “through negotiations, through litigation or, worse case scenario, through blockading,” said Chief Ian Campbell of the Squamish Nation. “The position of the Squamish is that no means no.”

(Additional reporting by Scott Haggett in Calgary; Editing by Jeffrey Hodgson and David Gregorio)