Kinder Morgan stops drilling, begins moving equipment from Burnaby Mountain

Kinder Morgan has stopped drilling on Burnaby Mountain and began moving out its equipment Friday, according to a company spokeswoman.

An application by Kinder Morgan to extend an injunction keeping protesters away from two drilling sites for its proposed oil pipeline was rejected by a B.C. Supreme Court judge on Thursday. It means the site must be cleared of excavation work by Dec. 1., the date when the injunction is set to expire.

Ali Hounsell, a spokeswoman for the Trans Mountain expansion project, said crews completed work Thursday at one of the borehole sites but the second one — set further into the woods — cannot be finished.

“We got started later on that one because there was some additional logistics with bringing in the equipment by helicopter. So the work had not progressed as far, which is why we were seeking an extension to the injunction,” she said.

Although the work is not done, Hounsell said the company believes it has enough geotechnical information to present to the National Energy Board.

“We will not complete the work at that second borehole site,” she said. “There’s a number of factors that go into that filing. In addition to the two borehole sites we did investigations on two adjacent sites. There’s geophysical information we were able to complete and engineering and desktop work. So in our opinion we believe we have sufficient information.”

She said the company may need to evaluate whether further survey work is needed on Burnaby Mountain at a later date.

The judge on Thursday denied the company’s request to extend the injunction to Dec. 12 and ruled that all civil contempt charges against the more than 100 people arrested so far should be thrown out because of GPS errors in the injunction specifying the exact location of the no-go zone.

The company admitted it provided incorrect GPS coordinates when it initially sought the court order. At one location, the coordinates were so inaccurate that the actual work site was entirely outside the area covered by the injunction.

Not only was the extension denied, but the judge, who had raised serious concerns about the GPS errors, ended the hearing by inviting Kinder Morgan’s lawyer to drop the civil contempt proceedings. The company then applied to have the cases withdrawn and the judge granted the application.

Earlier in the day, Judge Austin Cullen suggested the GPS errors would raise reasonable doubt in any subsequent civil contempt proceeding. The ruling won’t affect anyone who might be arrested for violating the injunction from now on or those facing criminal charges, including for assault and obstruction of justice.

On Friday morning, anti-pipeline activists were debating their next move in the battle to stop the pipeline expansion project. Karen Mahon, a Vancouver protester arrested earlier this week, said people were still expected to gather on Burnaby Mountain on the weekend, adding there is a feeling of empowerment among activists after Thursday’s ruling.

“We’re just trying to decide how best to make our voices heard. Kinder Morgan has made some mistakes but nothing really has changed. People still have legitimate concerns,” she said.

“You can’t build these mega fossil-fuel projects anymore without this kind of public opposition.”

Clean energy campaigner Tzeporah Berman tweeted that Kinder Morgan crews were “packing up and going home,” and called the court’s decision a victory.

Also Friday morning, environmental group Sierra Club B.C. issued a statement, saying the scenes playing out on Burnaby Mountain reflect British Columbians’ “deep-seated frustration” that the deck has been deliberately stacked in favour of companies such as Kinder Morgan.

“We are all directly affected by Kinder Morgan’s proposed pipeline and tankers. Climate change is not just relevant but central to whether or not we should be exploiting the tarsands and other fossil fuels,” said spokesman Tim Pearson.

“The federal government has systematically excluded voices that disagree with its fossil fuel agenda by gutting democratic participation. The National Energy Board process is a sham that displays a profound contempt for healthy debate and democracy.”

Trans Mountain was granted approval by the National Energy Board to assess a prospective underground route for the $5.4-billion expansion of an existing crude oil passage from Alberta to B.C. for export. The project would twin an existing pipeline and nearly triple capacity, from 300,000 barrels a day to 890,000.

You can’t build these mega fossil-fuel projects anymore without this kind of public opposition.”

Clean energy campaigner Tzeporah Berman tweeted that Kinder Morgan crews were “packing up and going home,” and called the court’s decision a victory.

Also Friday morning, environmental group Sierra Club B.C. issued a statement, saying the scenes playing out on Burnaby Mountain reflect British Columbians’ “deep-seated frustration” that the deck has been deliberately stacked in favour of companies such as Kinder Morgan.

“We are all directly affected by Kinder Morgan’s proposed pipeline and tankers. Climate change is not just relevant but central to whether or not we should be exploiting the tarsands and other fossil fuels,” said spokesman Tim Pearson.

“The federal government has systematically excluded voices that disagree with its fossil fuel agenda by gutting democratic participation. The National Energy Board process is a sham that displays a profound contempt for healthy debate and democracy.”

Trans Mountain was granted approval by the National Energy Board to assess a prospective underground route for the $5.4-billion expansion of an existing crude oil passage from Alberta to B.C. for export. The project would twin an existing pipeline and nearly triple capacity, from 300,000 barrels a day to 890,000.

ticrawford@vancouversun.com

With a file from The Canadian Press

Kinder Morgan stops drilling, begins moving equipment from Burnaby Mountain

Kinder Morgan has stopped drilling on Burnaby Mountain and began moving out its equipment Friday, according to a company spokeswoman.

An application by Kinder Morgan to extend an injunction keeping protesters away from two drilling sites for its proposed oil pipeline was rejected by a B.C. Supreme Court judge on Thursday. It means the site must be cleared of excavation work by Dec. 1., the date when the injunction is set to expire.

Ali Hounsell, a spokeswoman for the Trans Mountain expansion project, said crews completed work Thursday at one of the borehole sites but the second one — set further into the woods — cannot be finished.

“We got started later on that one because there was some additional logistics with bringing in the equipment by helicopter. So the work had not progressed as far, which is why we were seeking an extension to the injunction,” she said.

Although the work is not done, Hounsell said the company believes it has enough geotechnical information to present to the National Energy Board.

“We will not complete the work at that second borehole site,” she said. “There’s a number of factors that go into that filing. In addition to the two borehole sites we did investigations on two adjacent sites. There’s geophysical information we were able to complete and engineering and desktop work. So in our opinion we believe we have sufficient information.”

She said the company may need to evaluate whether further survey work is needed on Burnaby Mountain at a later date.

The judge on Thursday denied the company’s request to extend the injunction to Dec. 12 and ruled that all civil contempt charges against the more than 100 people arrested so far should be thrown out because of GPS errors in the injunction specifying the exact location of the no-go zone.

The company admitted it provided incorrect GPS coordinates when it initially sought the court order. At one location, the coordinates were so inaccurate that the actual work site was entirely outside the area covered by the injunction.

Not only was the extension denied, but the judge, who had raised serious concerns about the GPS errors, ended the hearing by inviting Kinder Morgan’s lawyer to drop the civil contempt proceedings. The company then applied to have the cases withdrawn and the judge granted the application.

Earlier in the day, Judge Austin Cullen suggested the GPS errors would raise reasonable doubt in any subsequent civil contempt proceeding. The ruling won’t affect anyone who might be arrested for violating the injunction from now on or those facing criminal charges, including for assault and obstruction of justice.

On Friday morning, anti-pipeline activists were debating their next move in the battle to stop the pipeline expansion project. Karen Mahon, a Vancouver protester arrested earlier this week, said people were still expected to gather on Burnaby Mountain on the weekend, adding there is a feeling of empowerment among activists after Thursday’s ruling.

“We’re just trying to decide how best to make our voices heard. Kinder Morgan has made some mistakes but nothing really has changed. People still have legitimate concerns,” she said.

“You can’t build these mega fossil-fuel projects anymore without this kind of public opposition.”

Clean energy campaigner Tzeporah Berman tweeted that Kinder Morgan crews were “packing up and going home,” and called the court’s decision a victory.

Also Friday morning, environmental group Sierra Club B.C. issued a statement, saying the scenes playing out on Burnaby Mountain reflect British Columbians’ “deep-seated frustration” that the deck has been deliberately stacked in favour of companies such as Kinder Morgan.

“We are all directly affected by Kinder Morgan’s proposed pipeline and tankers. Climate change is not just relevant but central to whether or not we should be exploiting the tarsands and other fossil fuels,” said spokesman Tim Pearson.

“The federal government has systematically excluded voices that disagree with its fossil fuel agenda by gutting democratic participation. The National Energy Board process is a sham that displays a profound contempt for healthy debate and democracy.”

Trans Mountain was granted approval by the National Energy Board to assess a prospective underground route for the $5.4-billion expansion of an existing crude oil passage from Alberta to B.C. for export. The project would twin an existing pipeline and nearly triple capacity, from 300,000 barrels a day to 890,000.

You can’t build these mega fossil-fuel projects anymore without this kind of public opposition.”

Clean energy campaigner Tzeporah Berman tweeted that Kinder Morgan crews were “packing up and going home,” and called the court’s decision a victory.

Also Friday morning, environmental group Sierra Club B.C. issued a statement, saying the scenes playing out on Burnaby Mountain reflect British Columbians’ “deep-seated frustration” that the deck has been deliberately stacked in favour of companies such as Kinder Morgan.

“We are all directly affected by Kinder Morgan’s proposed pipeline and tankers. Climate change is not just relevant but central to whether or not we should be exploiting the tarsands and other fossil fuels,” said spokesman Tim Pearson.

“The federal government has systematically excluded voices that disagree with its fossil fuel agenda by gutting democratic participation. The National Energy Board process is a sham that displays a profound contempt for healthy debate and democracy.”

Trans Mountain was granted approval by the National Energy Board to assess a prospective underground route for the $5.4-billion expansion of an existing crude oil passage from Alberta to B.C. for export. The project would twin an existing pipeline and nearly triple capacity, from 300,000 barrels a day to 890,000.

ticrawford@vancouversun.com

With a file from The Canadian Press

Reader’s Comment: Kinder Morgan demonstrates lack of accuracy

1. The Burnaby pipeline blowout was a gross error of its location monitoring relative to its worst case outcome. Is the pipeline location any better monitored now?

2. Kinder Morgan is in error as to the gps site of the bore hole sampling. As they err in this relatively simple construction task, are they likely to err during tunneling with severe consequences?

3. Kinder Morgan did not accurately estimate the time needed to complete for the bore hole test. Will innacurate timing be characteristic of main line construction?

These are 3 clear indicators of Kinder Morgans lack of respect for accuracy.
I would conclude that Kinder Morgan is less than trustworthy in caring for public good.

I have not seen this issue reported. I would recommend you bring this forward into the public domain.

Terry Stankunas
South Surrey

Picnics Not Pipelines Rally

Yesterday, Grand Chief Stewart Phillip of the Union of BC Indian Chiefs crossed a police line and was peacefully arrested on Burnaby Mountain, where Texas-based oil giant Kinder Morgan is conducting test drilling to facilitate their proposed pipeline and tanker project.

In the last week, more than a hundred protesters, including David Suzuki’s daughter, granddaughter and grandson, and several First Nations elders have been arrested in acts of peaceful civil disobedience.

By gutting our environmental laws, shutting the public out of pipeline hearings, and failing to respect and consult First Nations, Prime Minister Stephen Harper has created a situation where many pipeline opponents feel they have few avenues left to make their voices heard.

The courageous First Nations and grassroots activists leading the protests on Burnaby Mountain are standing up for all of us, and now we need to show that we support them.

This weekend, organizers are planning a series of big events on the mountain on Saturday and Sunday. If enough of us join these lawful events, we can show Kinder Morgan and the Harper Conservatives that our movement is strong enough to stop this pipeline and renew our democracy. There will be a clear safe zone where you can show your support without risking arrest.

SATURDAY: 11:30AM – 4PM. Tar Sands 101 and Frontlines Beat Pipelines: Click here for more details and to RSVP.

SUNDAY: 12PM – Rally on Burnaby Mountain: Click here for more details and to RSVP.

There is so much at stake. Kinder Morgan’s tar sands pipeline would cross hundreds of salmon rivers and streams and bring hundreds more oil tankers through Vancouver’s harbour every year. The project would put communities along the route at risk of toxic spills and huge economic consequences.

And that’s only part of the story — it would also facilitate massive expansion in the tarsands, an industrial megaproject that’s poisoning downstream communities and is on track to produce twice as much global warming pollution as all the cars and trucks in Canada combined. [1]

We need to show the Harper Conservatives and Kinder Morgan that when they try to shut people out, they will only make more of us stand up. Remember, you do not need to risk arrest to join these lawful events. Can you join an event this weekend?

Contempt charges thrown out in Burnaby Mountain pipeline protest

VANCOUVER — A judge threw out civil contempt charges Thursday against dozens of activists who have been arrested while demonstrating against a pipeline project on a mountain near Vancouver.

The ruling came a week after the RCMP began rounding up protesters on Burnaby Mountain, where Kinder Morgan is conducting drilling work related to its proposed Trans Mountain pipeline expansion.

More than 100 people were arrested, nearly all of whom faced civil contempt proceedings for violating a court injunction ordering them to keep away from two drilling sites.

The company admitted it provided incorrect GPS co-ordinates when it initially sought the court order. At one location, the co-ordinates were so inaccurate that the actual work site was entirely outside the area covered by the injunction.

Texas-based Kinder Morgan went to court Thursday asking that the injunction, which is set to expire on Dec. 1, be extended to Dec. 12.

Not only was the extension denied, but the judge, who had raised serious concerns about the GPS errors, ended the hearing by inviting Kinder Morgan’s lawyer to drop the civil contempt proceedings. The company then applied to have the cases withdrawn and the judge granted the application.

Earlier in the day, Judge Austin Cullen suggested the GPS errors would raise reasonable doubt in any subsequent civil contempt proceeding.

“What’s happened thus far is that apparently people have been arrested on the basis of an order that refers to some other piece of property,” said Cullen, prompting laughs and jeers from the courtroom’s crowded public gallery.

“The concern is that people have been arrested and subjected to restraints on their liberty,” he said later.

The judge’s order affects anyone cited for civil contempt before the judgment was made. Cullen also revised the injunction to fix the GPS co-ordinates, which means the ruling won’t affect anyone who might be arrested for violating the injunction from now on.

It also won’t affect the handful of people facing criminal charges, including for assault and obstruction of justice.

“I’m thrilled,” protester Lynne Quarmby, who was arrested last week, said outside court. She is a biochemistry professor at Simon Fraser University, which is located on Burnaby Mountain,

“I think that Trans Mountain’s incompetence showed up very clearly in court today, and that’s a good thing.”

Burnaby Mountain has become the focal point for anti-pipeline protests. Activists set up an encampment in September and protests have focused not only on the Trans Mountain project but on any attempt to transport crude from Alberta’s oilsands.

Kinder Morgan’s preferred route for the expanded Trans Mountain pipeline would tunnel through the mountain. The recent work involved drilling two bore holes to remove samples as the company prepares for the federal approval process.

Company spokeswoman Lizette Parsons Bell said she hoped there would be no more arrests as crews work to remove equipment by Dec. 1.

“We never wanted it to get to a point where people were being arrested,” Parsons Bell said in an interview.

“While we understand that people have varying opinions, we hope they will respect that the workers need to be able to clear up the site and get out of there in a safe manner.”

Parsons Bell said the company was disappointed it did not receive an extension, but she said officials were confident they have enough information to submit their findings to the National Energy Board.

Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs was arrested Thursday morning. Like many pipeline opponents before him, Phillip announced his intention to be arrested before walking past a police line that surrounded the work site.

He and his supporters trekked through dense brush to the site. He was arrested to the beat of a native drum and singing.

“I said that if push came to shove and there were arrests, that I would stand with the courageous people that were willing to be arrested as a matter of principle,” he said before his arrest.

“We need to reclaim this country … and return it back to the voices of the people that have invested a lifetime of hard work to build this province.”

— With files from Tamsyn Burgmann

© Copyright (c)

B.C. pipeline-protest case shows how lawsuits threaten democratic voices

Byron Sheldrick is chairman of the political science department at the University of Guelph. Samir Gandesha is director pf the Institute for the Humanities at Simon Fraser University.

At 4:00 on November 17, the RCMP read an injunction that had been granted the previous Friday prohibiting members of the public from traversing areas of a Burnaby Mountain Conservation Area. The initial injunction had initially been directed at members of the Burnaby Mountain Caretakers and Burnaby Residents Against Kinder Morgan Expansion, and two Simon Fraser University professors who are members of those groups. They were also served with a $5.6-million civil suit. These are the roots of the current standoff between the RCMP and the protestors.

The lawsuit brought by Kinder Morgan against demonstrators peacefully protesting survey work on Burnaby Mountain represents a classic strategy of political and legal intimidation. Strategic Lawsuits Against Public Participation — or SLAPPs — are lawsuits brought against group of citizens, usually alleging that the group has committed defamation, trespass, or some other civil wrong, which have the effect of curtailing political engagement over a public issue.

These lawsuits generally involve damage claims and requests for injunctive relief, and place a chill on public engagement. The impact of a such lawsuit, when brought by a major corporation and claiming millions of dollars in damages, cannot be overestimated. The prospect of losing one’s house would test the political mettle of anyone.

SLAPPs are extremely effective political weapons. They remove political issues from their context, transforming them into narrow issues of civil liability. In the Burnaby Mountain case, issues of environmental integrity, the impact of pipelines on conservation lands and the autonomy of municipal governments are at stake. The National Energy Board ruling granting Kinder Morgan the right to conduct survey work on Burnaby Mountain effectively overruled local municipal decision-making. The Mayor of Burnaby, Derek Corrigan, was re-elected in the recent elections on an anti-Kinder Morgan platform. He and Burnaby Council are currently appealing the ruling, which arguably represents a significant departure from current understandings of both the authority of administrative tribunals and current jurisprudence on federalism.

Yet, it is the authority of this NEB decision that stands at the heart of Kinder Morgan’s claim that demonstrators are “trespassing” on what is otherwise considered public land. The legal issues in the case are far from settled, yet the narrow issue of trespass has been employed to support a major damage claim and an injunction that, now that it is being enforced, permits the company to complete its work before the courts have even considered the validity of the original NEB ruling. Moreover, not only is the board’s initial ruling under appeal, the NEB’s very impartiality has been called into question by the former head of BC Hydro, Marc Eliesen, who resigned from it last week, describing the board as “industry captured.”

The case reflects the urgent need for legislation regulating SLAPPs. Courts have proven ineffective at doing so. In Canada, only Quebec has legislation in place. Ironically, British Columbia was the first province to enact anti-SLAPP legislation in 2001, although it was reversed shortly after the election of the Liberal government. Critics of anti-SLAPP regulations argue that such legislation erodes the rule of law. However, in Ontario, a blue-ribbon panel recommended the introduction of anti-SLAPP legislation. Legislation based on the report was introduced, but subsequently died on the order paper when the last Ontario election was called. The Ontario government has committed itself to reintroducing the bill, which is carefully designed to balance rights of citizens to public and political expression, while ensuring that “real” grievances continue to be dealt with by the courts.

Such legislation would help here. There’s no better evidence of the frivolous nature of Kinder Morgan’s suit than its claims that the protestors made “threatening” faces. This launched a satirical “Kinder Morgan face” trend on social media.

The proposed Ontario legislation requires the court to hold an expedited hearing to determine whether the litigation involves a matter of public interest and negatively impacts political expression. If the answer is “yes,” then the burden shifts to the plaintiff to demonstrate that they have suffered actual harm and that the lawsuit would likely be successful. It is important to keep in mind that over 80 per cent of SLAPP cases are unsuccessful. Winning the case is rarely the objective behind these lawsuits. An expedited hearing process ensures that plaintiffs cannot use the courts to tie citizens up in expensive court proceedings as a strategy for curtailing public expression. The Ontario legislation also would put on hold all related proceedings, thereby preventing the very scenario unfolding on Burnaby Mountain.

As a result of the SLAPP suit filed by Kinder Morgan, we now have the RCMP acting at the behest of a foreign oil company to arrest young people, SFU faculty and Coast Salish elders, who are profoundly concerned not just about what more than doubling of the capacity of these pipelines might mean to the region but also about the effects of tar sands bitumen on global climate change more generally. When challenged about what he thought about what this meant for the ability of Canadians and First Nations peoples to democratically determine their own fate, one RCMP officer simply said he doesn’t think about such issues; he was simply “doing his job.” Where have we heard that before? And with what consequences?

At a time when the lack of citizen engagement, growing political apathy as reflected by low voter turn-out, and general cynicism about our political system are universally lamented, it is important that our institutions of justice not be co-opted into processes that further erode and undermine the quality of our democracy.

Protesters may not have violated court order

Dozens of protesters charged with breaching an injunction protecting Kinder Morgan pipeline testing work on Burnaby Mountain may never have violated the court order.

In an application to change the original Nov. 14 injunction issued by B.C. Supreme Court Associate Chief Justice Austin Cullen, Kinder Morgan subsidiary Trans Mountain Pipeline ULC says the RCMP have been arresting people for entering an “exclusion zone” that extends beyond the boundaries of the injunction.

Documents filed for Thursday’s hearing to expand the zone from which protesters are prohibited suggests that many of the nearly 90 arrests made by Mounties over the past week, and civil contempt charges laid against those arrested, could be found illegitimate.

Carey Johannesson, who is described as project lead on the Trans Mountain Expansion Project, says in an affidavit that he filed the incorrect GPS co-ordinates that resulted in the confusion.

“It is now apparent to me that the approximate GPS boundaries for borehole no. 1 and borehole no. 2 are not accurate,” he states, adding it has “become apparent that the GPS locations described in the order are not accurate.”

Lawyers who have been critical of the process by which Trans Mountain obtained the injunction and the use of the court’s civil contempt law to deal with protesters were appalled.

“The RCMP appear to have arrested dozens of people for breaching an injunction when they may have done no such thing; carting people away for crossing a line they didn’t cross,” said Josh Paterson, executive director of the B.C. Civil Liberties Association.

“The thing with being charged with breaching a court order is that you need to have breached a court order. It’s totally unclear whether that is the case, given the acknowledgment that RCMP have arrested people for crossing a police tape line that was metres from the actual injunction line.”

Vancouver lawyer Jason Gratl, who represents some of the protesters, said the situation has been a mess since the get-go — with no one understanding where they were allowed to demonstrate.

“Now they are going to bring the contempt to the protesters rather than wait for the protesters to get to the contempt,” he said wryly.

Gratl pointed out that the Mounties could charge protesters under the Criminal Code.

“It’s obstruction of justice to cross a police line when directed not to, but that’s a criminal charge,” he explained.

“Now it is more stark than ever police don’t want to do their job, they want to only arrest for contempt rather than criminal process. It has never been more stark that the RCMP refuse to do their job under the Criminal Code — they want to arrest people under the contempt power.”

Given the lack of clarity and the possibility that many arrests may have been illegitimate, the BCCLA questioned whether an expansion of the injunction area could be justified.

“It’s bad enough that we may have dozens of unlawful arrests based on the existing, confusing injunction,” Paterson said.

“Any legal restrictions on constitutional rights of freedom of speech and assembly must be absolutely clear and must be as minimal as possible. Now the court is being asked to expand the zone that protesters are forbidden to enter, in the form of a request to ‘clarify’ the order. We can see no compelling legal justification to further restrict people’s right to demonstrate on Burnaby Mountain.”

Johannesson says the company also needs an extension to Dec. 12 to complete all of its work and remove its equipment, after which it will perform any remedial work with the City of Burnaby.

imulgrew@vancouversun.com

Protesters may not have violated court order

Dozens of protesters charged with breaching an injunction protecting Kinder Morgan pipeline testing work on Burnaby Mountain may never have violated the court order.

In an application to change the original Nov. 14 injunction issued by B.C. Supreme Court Associate Chief Justice Austin Cullen, Kinder Morgan subsidiary Trans Mountain Pipeline ULC says the RCMP have been arresting people for entering an “exclusion zone” that extends beyond the boundaries of the injunction.

Documents filed for Thursday’s hearing to expand the zone from which protesters are prohibited suggests that many of the nearly 90 arrests made by Mounties over the past week, and civil contempt charges laid against those arrested, could be found illegitimate.

Carey Johannesson, who is described as project lead on the Trans Mountain Expansion Project, says in an affidavit that he filed the incorrect GPS co-ordinates that resulted in the confusion.

“It is now apparent to me that the approximate GPS boundaries for borehole no. 1 and borehole no. 2 are not accurate,” he states, adding it has “become apparent that the GPS locations described in the order are not accurate.”

Lawyers who have been critical of the process by which Trans Mountain obtained the injunction and the use of the court’s civil contempt law to deal with protesters were appalled.

“The RCMP appear to have arrested dozens of people for breaching an injunction when they may have done no such thing; carting people away for crossing a line they didn’t cross,” said Josh Paterson, executive director of the B.C. Civil Liberties Association.

“The thing with being charged with breaching a court order is that you need to have breached a court order. It’s totally unclear whether that is the case, given the acknowledgment that RCMP have arrested people for crossing a police tape line that was metres from the actual injunction line.”

Vancouver lawyer Jason Gratl, who represents some of the protesters, said the situation has been a mess since the get-go — with no one understanding where they were allowed to demonstrate.

“Now they are going to bring the contempt to the protesters rather than wait for the protesters to get to the contempt,” he said wryly.

Gratl pointed out that the Mounties could charge protesters under the Criminal Code.

“It’s obstruction of justice to cross a police line when directed not to, but that’s a criminal charge,” he explained.

“Now it is more stark than ever police don’t want to do their job, they want to only arrest for contempt rather than criminal process. It has never been more stark that the RCMP refuse to do their job under the Criminal Code — they want to arrest people under the contempt power.”

Given the lack of clarity and the possibility that many arrests may have been illegitimate, the BCCLA questioned whether an expansion of the injunction area could be justified.

“It’s bad enough that we may have dozens of unlawful arrests based on the existing, confusing injunction,” Paterson said.

“Any legal restrictions on constitutional rights of freedom of speech and assembly must be absolutely clear and must be as minimal as possible. Now the court is being asked to expand the zone that protesters are forbidden to enter, in the form of a request to ‘clarify’ the order. We can see no compelling legal justification to further restrict people’s right to demonstrate on Burnaby Mountain.”

Johannesson says the company also needs an extension to Dec. 12 to complete all of its work and remove its equipment, after which it will perform any remedial work with the City of Burnaby.

imulgrew@vancouversun.com

‘Kinder Morgan Is Breaking the Law,’ Economist Alleges

Robyn Allan accuses firm of failing to seek NEB sign-off for deal that may weaken oil spill liability.

The owner of the Trans Mountain pipeline is distancing itself from responsibility for a potential disaster and is breaking the law by restructuring without a green light from the National Energy Board, claims economist Robyn Allan.

The restructuring Allan points to is a big deal for financial folks, and mind-numbingly complicated for just about everyone else. This week, the Houston-based Kinder Morgan Inc. is set to complete a $73-billion deal that gives it full ownership of Kinder Morgan Energy Partners LP, a separate entity in charge of the Trans Mountain pipeline expansion through Burnaby.

“Part of the [company’s] strategy is to deal in complexity that avoids scrutiny,” said Allan, a former CEO of the Insurance Corporation of British Columbia.

This weekend, as dozens of Trans Mountain protesters were arrested, Allan filed a motion to the NEB demanding all work on the pipeline cease.

Allan is an expert intervener at public hearings into whether Trans Mountain should be approved. In her motion, she argued Kinder Morgan Inc. never publicly sought NEB permission for its restructuring. “Kinder Morgan is breaking the law,” she alleged. “They were supposed to file an application and they haven’t done it.”

Kinder Morgan Inc. and Kinder Morgan Energy Partners LP may both have “Kinder Morgan” in their names, but for legal purposes they’re distinct. The Houston-based Kinder Morgan Inc. is North America’s fourth largest energy company, while Kinder Morgan Energy Partners LP is a subsidiary in charge of the Trans Mountain project.

This week, the Houston-based Kinder Morgan is acquiring the Energy Partners Kinder Morgan (and its Trans Mountain project) as part of a $73-billion restructuring deal.

Ask first, say regs

If that seems complicated, prepare now to wade into the thicket of Canadian regulatory policy.

According to Section 74 of the National Energy Board Act, a pipeline company must not “enter into an agreement for amalgamation with any other company,” among other such stipulations, without first publicly seeking permission to do so from the NEB. Since Kinder Morgan Inc. announced its restructuring deal early this August, Allan has found no evidence that such permission was sought.

Why does any of this matter? Allan is not only alleging that a Canadian law was violated, she’s worried that the corporate restructuring may weaken Kinder Morgan’s liability for an oil spill. “Nothing was communicated to the NEB about what this deal means in terms of changes to [Kinder Morgan’s] insurance program,” Allan claimed. In the event of an oil spill, say, in Vancouver’s Burrard Inlet, “it’s very possible that it will be much more difficult to go after Kinder Morgan,” she alleged.

One reason financial folks are following Kinder Morgan Inc.’s restructuring deal so closely is that if offers the company, in the words of its CEO Richard Kinder, “a $20-billion tax saving over 14 years.” The existing Trans Mountain pipeline earns about $170 million per year, and results in about $1.5 million in annual tax revenues to the B.C. and federal governments — a dynamic that Allan refers to as “Kinder Morgan’s high return on equity in relation to its almost non-existent Canadian tax obligation.”

NEB ‘reviewing’ Allan’s motion

When The Tyee first reached out to Kinder Morgan it initially received an automated email stating the firm has “received an extremely high number of phone calls and emails regarding the proposed [restructuring deal] expected to close before Thanksgiving of 2014.”

A spokesperson later wrote to say that “with respect to any questions you may have about the implications this might have on Kinder Morgan Canada or its assets, we wish to advise that this acquisition will have no impact on or result in any changes to the operations of Kinder Morgan Canada or its assets.”

What happens now that Allan’s motion has been filed with the NEB? By law the regulatory agency has to deal with it directly, by first getting a response from Kinder Morgan Inc. about Allan’s allegations, giving other interveners a chance to weigh in, and finally allowing Allan to respond.

An NEB spokesperson told The Tyee: “We have received Ms. Allan’s motion and we are reviewing the contents. As we are currently considering the motion and will make a ruling on this request in due course, it would be premature for me to comment.”

Read more: Energy, Rights + Justice, Federal Politics, Environment

Geoff Dembicki reports on energy and climate change for The Tyee. Find his previous stories here.

Ian Mulgrew: Judge robbed protesters of right to civil disobedience

BY IAN MULGREW, VANCOUVER SUN NOVEMBER 24, 2014 9:13 AM

By issuing an injuction on the Burnaby Mountain pipeline dispute, a B.C. judge has robbed protesters of their right to civil disobedience, fettered their defences and sullied the court, writes Ian Mulgrew.
Photograph by: Arlen Redekop , PNG
The B.C. Supreme Court smeared its robes with political tar sand by issuing the injunction in the Burnaby Mountain pipeline dispute.

In a bit of legal sleight-of-hand, Associate Chief Justice Austin Cullen robbed protesters of their right to civil disobedience, fettered their defences and sullied the court.

He ought to have known better: Members of his own bench have railed for years against this use of injunctions as a substitute for police doing their job.

Since the NDP government first adopted this policy to subvert environmental and First Nations civil disobedience, smart judges have slammed it.

First of all, civil contempt isn’t a criminal charge so the charged protesters have a restricted number of defences but they’re facing stiffer punishment.

They cannot argue the injunction violated their constitutional rights, for instance, because that’s considered an impermissible “collateral attack” on the court order.

These injunctions are like papal bulls.

In the 1990s the province obtained one by materially misleading a judge, but those who were charged with contempt in the interim were nonetheless guilty.

There is no maximum sentence for contempt and no time off for good behaviour.

(Though in the Clayoquot trials, provincial corrections nonetheless released some inmates immediately after they began to serve their sentences.)

That’s why judges have grave concerns with this little two-step quadrille — get an injunction, proceed under the contempt law — formalized in 1990 under the NDP.

Here’s the background: in 1989, 70 individuals were prosecuted on mischief charges relating to protests against resource extraction in Strathcona Park. Notwithstanding the disruptions and damage they caused, 67 were acquitted, only three were convicted and received minor sentences.

But the trials were drawn out over a period of 18 months, sapping official and private resources, and drawing further attention to the issue.

Compare this to what happened at Clayoquot Sound in 1993 where more than 700 people were prosecuted for criminal contempt.

The trials were concluded within eight months and almost all were convicted. The average jail sentence was three weeks.

In 1994, a labour dispute at a MacMillan Bloedel construction site in Port Alberni resulted in the conviction of more than 90 individuals for contempt. On average, their trials lasted one or two days. Sentences ranged between 10 and 14 days in jail.

Here’s what the late B.C. Court of Appeal Justice Josiah Wood had to say about this policy:

“It is only because the obligations of the office of the Attorney General have not been discharged, in connection with mass public protests which are designed to interfere with the exercise of private rights, that in recent years the courts have been drawn into a role which they were never intended to perform, and for which they are ill-suited.”

Retired B.C. Supreme Court Justice Ian Pitfield similarly complained that the entire excuse for this policy offered by the government was a fraud:

“The analysis that applies in relation to private disputes has been applied in cases of civil disobedience, notwithstanding that the true nature of the debate is a contest between members of the public on the one hand and policy-makers on the other.”

Over the last quarter century, B.C. Supreme Court Justice Mark McEwan has been the most strident denouncing what he considered in some cases to be “a kind of officially induced abuse of process.”

In the 2000 Slocan dispute over “clean water,” he underscored the late Justice Wood’s point and said these cases don’t involve “a legal question, but a question of social policy.”

He added: “It appears to be taken for granted by the authorities that the court’s civil jurisdiction is available to the public as a substitute for criminal law enforcement.

“This can only be done, however, by characterizing as a dispute between ‘parties’ what is really nothing of the kind. … acts of civil disobedience are not in essence civil disputes between individuals.”

Justice Cullen should be embarrassed by his Nov. 14 injunction.

Justice Minister Suzanne Anton’s inaction should be under scrutiny — not the ability of the Supreme Court to quash dissent and force protesters to kowtow.

The Crown has abdicated its law enforcement responsibilities to prevent these citizens from spotlighting their martyrdom in a criminal trial.

There are criminal laws in place to boot those who cross the line from the Burnaby Mountain Conservation Area.

Justice Cullen should have told Trans Mountain to do what the rest of us have to do — phone the cops.

If they won’t act and the Crown refuses to lay charges, the government would be forced to accept the political consequences.

Removing this responsibility from elected representatives by allowing Trans Mountain to seek an injunction where the criminal code already provides a remedy does nothing but debase the only currency the court possesses — respect.

Instead of being a disinterested forum for deciding important issues, Justice Cullen has turned the court into a tool for Big Oil and Bad Government.

imulgrew@vancouversun.com