Sober second thought needed in Kinder Morgan situation

As we write this editorial, RCMP officers are arresting protesters on Burnaby Mountain. The protesters have been involved in a standoff with Kinder Morgan and the company’s workers for the past several weeks.

Kinder Morgan wants to take soil samples and do some engineering tests to see if their planned twinning of its oil pipeline could be built through the mountain. The protesters are trying to stop – or at least stall – the company.

The city is still fighting the company in Canada’s courts. The land Kinder Morgan wants to build on has been designated a conservation and park area. It is not a vacant industrial lot. It is Burnaby city land, and one might think that Burnaby would have some say in the matter. But that’s not what the law allows, according to the National Energy Board. The law apparently allows for oil companies to pretty much do anything they want.

Well, as Charles Dickens wrote in Oliver Twist, “The law is an arse.”

Burnaby residents, and Canadians in general, are a polite group. Civil disobedience is not the first thing they plan when faced with government actions they don’t agree with. First they try the law, then they try online petitions, then they get their pup tents and hold sing-along protests with big signs. It is certainly only as a last resort that folks chain themselves to trees and get thrown behind bars.

So the government and the NEB should take a much-needed sober second look at this situation.

This is not a protest that is happening in the 1960s deep in the woods. This is a protest that is driven by legitimate concerns about oil tanker traffic in a narrow inlet. It is a protest with legitimate concerns about what would happen when (not if) an earthquake hits. It is a protest framed by legitimate concerns about land rights. It is a protest supported by many “average” citizens who were very reluctant to step out of their comfort zones and risk jail. It is a protest that is founded on principles that cannot be ignored. The law may indeed be an arse, but we still believe in basic principles of justice.

© Burnaby Now – See more at:

RCMP Acted Prematurely

From: Lawyer’s Rights Watch Canada
Subject: Arrests

Re: Arrest of people protesting Trans Mountain Pipeline conducting the surveys identified by the National Energy Board (NEB).

The arrests of protesters on Burnaby Mountain by the Burnaby RCMP are dangerously wrong and potentially put us all in jeopardy. Deprivation of liberty is the most severe punishment available in our legal system. Police arrest powers must not be used to determine civil disputes or to prevent protests except where necessary to prevent grave harm to the uncontroversial rights of others. In this case the police rely on an injunction made in a lawsuit criticized as a SLAPP (strategic lawsuit against public participation) suit and an NEB order under appeal and made by a process criticized as a sham intended to produce a predetermined result without considering the public interest.

The dispute in this case is between the public and a foreign corporation. Members of the public who are residents of Burnaby and British Colombia (the protesters) are acting in furtherance of their democratic rights, to protect the public interest. Trans Mountain (the corporation) is acting to maintain or increase profits for shareholders. The issue of whether Trans Mountain has the legal authority to conduct destructive activities on Burnaby Mountain in violation of municipal law has yet to be determined. That issue is currently before both the BC Court of Appeal and the Federal Court of Appeal. The City of Burnaby is appealing to the Federal Court of Appeal to set aside the NEB’s order allowing Trans Mountain to carry out the destructive activities and is appealing to the BC Court of Appeal to overturn the BC Supreme Court dismissal of Burnaby’s application for an injunction to prevent those activities. In the meantime Trans Mountain filed a multi-million dollar damage action against the protestors and obtained the injunction upon which the police rely as authority for the arrests.

The right of Trans Mountain to conduct the destructive activities remains controversial and therefore cannot legitimize even a temporary loss of liberty for protesters. The rights of the members of the public to engage in peaceful protests are established and protected by Canadian and international law. The duty of the police is to uphold the law, in this case the rights of the protesters and leave it up to the BC Court of Appeal, the Federal Court of Appeal and possibly the Supreme Court of Canada to determine the rights of Trans Mountain.

Gail Davidson, 604 738 0338; 778 772 2232
Gail Davidson
Lawyer’s Rights Watch Canada – LRWC
3220 West 13th Avenue
Vancouver, BC CANADA, V6K 2V5
Tel: +1-604 736-1175
Fax: +1-604 736-1170
Skype: gail.davidson.lrwc

Lawyers Rights Watch Canada (LRWC) is a committee of lawyers who promote human rights and the rule of law internationally by protecting advocacy rights. LRWC campaigns for advocates in danger because of their human rights advocacy, engages in research and education and works in cooperation with other human rights organizations. LRWC has Special Consultative status with the Economic and Social Council of the United Nations.

Statement from Kennedy Stewart on Burnaby Mountain Protest

Statement from Kennedy Stewart on Burnaby Mountain Protest

Early this morning I went to Burnaby Mountain and spoke with protesters opposed to Kinder Morgan’s drilling activities in the Conservation area related to building a massive new crude oil pipeline through our community.

I spoke with local business owners, home owners, students and the RCMP. I also had the great honour of meeting Clarissa Antone a member of the Squamish First Nation and keeper of the sacred fire. A number of those to whom I spoke were arrested in yesterday’s protests.

I have visited the protest site many times over the past few months to understand the situation and offer support to protestors. The purpose of my visit today was again to support my constituents and to inform them of my Thursday November 20th statement in the House of Commons and Open Letter to Kinder Morgan President Ian Anderson challenging him to immediately cease his activities on Burnaby Mountain so as not to pit local police against local residents.

Today, I again ask Kinder Morgan President Ian Anderson to cease his activities, at least until a judge has decided whether or not to uphold the request by Mayor Derek Corrigan and the City of Burnaby that Kinder Morgan be ordered to stop their activities.

I will continue to visit protestors on Burnaby Mountain and continue to speak in the House of Commons on behalf of my constituents on this issue.

Kennedy Stewart,
Member of Parliament Burnaby-Douglas

Media Release
For immediate release
November 20, 2015

Burnaby MP Kennedy Stewart Calls on Kinder Morgan to Stop Work on Burnaby Mountain

(Burnaby) In a letter sent today, Burnaby-Douglas MP Kennedy Stewart, called on Kinder Morgan president Ian Anderson to cease activities on Burnaby Mountain.

“In my view, despite the decision of the BC Supreme Court, Mr. Anderson is showing poor judgement and a disregard for Burnaby residents,” Stewart commented. “As people begin to be arrested on Burnaby Mountain, the company has not indicated they will rethink their plan to conduct intrusive tests in our public park.”

“Mr. Anderson must understand the level of anxiety and conflict his company’s activities have provoked in Burnaby,” commented Stewart. “The people protesting on Burnaby Mountain are local, law abiding residents who have been pushed to their limit. They feel they have not been heard by the company or the National Energy Board.”


The letter to Mr. Anderson and Kennedy’s statement in the House of Commons here:

More Arrests November 21 2014

For Immediate Release

Burnaby Mountain – At least six more people have been arrested in the protest against pipeline company Kinder Morgan on Burnaby Mountain including Simon Fraser University Professor Lynn Quarmby, Burnaby resident Ruth Walmsley of BROKE, and Vancouver activist Kevin Washbrook..
Today’s arrests started when Prof. Quarmby announced that, despite being a law abiding citizen who is engaged in civil society in many ways, she felt she had no choice but to get arrested to prove her point that the Kinder Morgan pipeline review process is seriously flawed.

“Canadians deserve a government that will address climate change..” said Professor Quarmby. “The fact that people are not allowed to talk about climate change in the pipeline hearings is evidence that the process is broken and corrupt” continued Quarmby. She also expressed concern about the lack of consultation with First Nations.
Professor Quarmby linked arms with supporters as she walked up Burnaby Mountain to the sound of First Nations drummers. When she got to the police line she was joined by at least 5 others as they crossed the line and were arrested.

Meanwhile, at the bottom of the mountain, concerned citizens stood in the way of 2 Kinder Morgan trucks that were going up the mountain to carryout the survey work. At least 2 trucks turned back and there are indications that the blockade will continue.

Update: Arrests November 20, 2014


The Climate Change protests are starting to grow, world wide. Big Oil is advertising like mad on TV, but the voice of young people, First Nations, and elders is starting to be heard.

We (I primarily affiliate with BROKE: Burnaby Residents Opposing Kinder Morgan Expansion) are doing our best to continue our peaceful protest, without getting arrested. If this follows the Clayoquot Sound script, we will have arrests day after day for a long time, even tho the RCMP and the Kinder Morgan private security police will try to protect the Kinder Morgan contractors. They brought in equipment to the Borehole 1 site (The Clearcut) late this afternoon.

But there were 20 arrests today. According to our Facebook site, that included Tamo Campos, son of Tamiko Suzuki, grandson of David Suzuki, who happened to be in town for fund raising for the Klabona Keepers. The Klabona Keepers are fighting polluters in the Sacred Headwaters of the Nass, Stikine, and Skeena Rivers. This is the far north of B.C. Tamo and his friends from up north served us soup and bannock at the Unitarian Church of Vancouver last Sunday. He is a fine young man, learning film making and more on the front lines.

Without warning, as he and 4-5 young women sat on the trail, the police roughly dragged them off the trail to make way for 14 police carrying one protester, who had camped in a tree over Borehole 1, “The Clearcut”. They were not asked to leave. They offered no resistence. Yet now I understand Tamo and friends are still under arrest. I was with Tamo at Borehole 1 for a couple hours, when the police tried to talk the protester to come down from the tree. I don’t think Tamo or the others had any intention of being arrested today. A friend and I had tied a banner across the trail “Picnics Not Pipelines”, but that was purely symbolic.

Tamo had a small dog with him. Another reason why I don’t think he intended to get arrested.

For more information go to our website and bookmark it:

Also to get an economist’s view on Kinder Morgan’s successful strategy to reduce its taxes (in the U.S.A. and Canada) see Robyn Allan’s article here:

and her 8 page analysis (very readable) here:

Robyn Allan was CEO of ICBC.

And if you haven’t already, please donate any amount to our legal defense fund: BROKE Against Big Oil. Kinder Morgan his us with a SLAPP suit (Strategic Litigation Against Public Participation).

Thank you, Karl

12 arrests on Burnaby Mountain Nov 20

About 12 arrests and 6 freed already. Very peaceful gathering with about 50 people in support and fifty reporters and tv camera people. About 30 police here and there on Burnaby mountain. But everyone relatively clam.

Recordings posted shortly on our FB site. Burnaby Residents Opposing Kinder Morgan Expansion

Protestors and police prepare for showdown on Burnaby Mountain

Burnaby RCMP read a court injunction and enforcement order to anti-pipeline protestors encamped on Burnaby Mountain at 4 p.m. Monday.

But Staff Sgt. Major John Buis wouldn’t say when police would start taking measures to enforce the order.

At a media briefing earlier in the afternoon Buis said police would allow protestors the opportunity to comply with the order but he declined to go into specifics.

“This will allow those assembled to fully understand their role and our role in this process,” said Buis. “We will use our discretionary authority to continue to monitor and assess the situation. This assessment will take time.”

A mass rally at Burnaby Mountain was to begin at 3 p.m.

Organizers used Facebook to rally support for the rally, and up to 800 people had indicated their interest in attending.

An hour before the rally, protestors mingled around the camp that has been erected alongside Centennial Way where Kinder Morgan plans to bore one of two holes to study the feasibility of building its planned pipeline expansion through the mountain. Two members of the Burnaby RCMP chatted amiably with some of them.

Buis said the RCMP “will have a plan in place” to deal with dismantling the encampment “when the time comes.”

On Friday morning, B.C. Supreme Court Associate Chief Justice Austin Cullen ordered that all the protesters remove themselves and their obstructions from Burnaby Mountain before 4 p.m. on Monday, Nov. 17, so they couldn’t interfere with Kinder Morgan’s pipeline studies.

The company wants to do geotechnical studies to determine whether it can route its proposed expansion of its Trans Mountain pipeline in a tunnel through the mountain.
In September, City of Burnaby officials had issued stop work orders and tickets when the company took down trees and disrupted traffic in contravention of bylaws. Last month, the National Energy Board (NEB) ordered the city to allow the work to go ahead, despite any potential bylaw violations.

Then on Oct. 29, the first day crews returned to work at the site, protesters chased them off at one bore hole site and blocked the second bore hole site with the help of an encampment.

Kinder Morgan took the protesters to court in seeking an injunction, as well as naming them in a civil suit seeking damages. Those named in the court filings are Adam Gold, Mia Nissen, Stephen Collis, Lynne Quarmby, and Alan Dutton, both personally and as a representative for Burnaby Residents Opposed to Kinder Morgan Expansion (BROKE), as well as unnamed protesters.

In his reasons for judgment, Cullen said the protesters’ lawyers argued that the court lacked jurisdiction or should defer jurisdiction to the NEB. They also claimed the company’s application was premature in light of the City of Burnaby’s unresolved appeals of both the NEB order and the B.C. Supreme Court rejection of its call for an injunction preventing the company from carrying out its work.

But Cullen sided with the company and its version of events on Oct. 29 in which it claimed its workers felt threatened and intimidated by the protesters.

“In other words, the plaintiff’s representatives were faced with either physical confrontation or retreat. They wisely chose the latter.”

Cullen said “a court reasonably could conclude that there was a concerted and coordinated effort” to thwart the crews from doing their work “through the use of the unlawful means” being claimed.

He also concluded that if an injunction was not granted it would cause the company irreparable harm through costs caused by delays in the study work and its NEB hearing. The company estimated the direct costs as $5.6 million per month of delay and possible revenue losses of many millions of dollars a month.

“The harm although primarily economic, is thus, nonetheless, irreparable,” Cullen said in granting the injunction.

Alan Dutton of BROKE said he was “extremely disappointed” in the ruling.

“I was shocked … I’m surprised because I thought we had some really good arguments and I thought that he would have given us more consideration in his decision.”

Dutton said he and BROKE are advising people to obey the law. That said, it will be up to individuals to decide what they want to do.

“I’m hoping the individuals on the mountain will follow the instructions of the court,” said Dutton.

Those camped out at the site are a “loose knit group” that does not include BROKE members, he said.

As for the civil suit, Dutton said the injunction hurts their cause. “We’ll have to fight that.”

Earlier this week, Kinder Morgan Canada president Ian Anderson said the company may not pursue the civil suit if it can do the work it needs to do.

“I have no intention of pursuing any damages if we can undertake the work that we know we have the legal clearance to complete,” Anderson said in a conference call with reporters at the time.

Dutton believes the civil litigation will be a “very protracted process” as a way to silence the company’s critics.

“And if Kinder Morgan decides to pursue the civil suit I am sure that it will mobilize many, many more people both locally and internationally against Kinder Morgan’s interests,” Dutton said.

“So I think it’s a zero sum game for them and I think that ultimately truth will prevail and I think that we will make sure that we come out ahead to protect the environment.”

In a press release sent out shortly after the decision, Kinder Morgan said, “Trans Mountain is currently reviewing the terms of the granted injunction and will be developing its schedule to resume work.”

“The people who are trying to do the studies on Burnaby Mountain are your neighbours–they’re everyday men and women who are trying to carry out lawful work,” said Anderson in the release. “We ask the protesters to exercise their rights in a respectful manner and allow our team to get the evidence needed to respond to requests made in our consultation.”

Trans Mountain Pipeline: Big Bucks for US Investors, Peanuts for Us

Robyn Allan
Thanks to clever US owner, firm pays minimal taxes here, sometimes none.

Proposed expansion of Trans Mountain Pipeline connecting Alberta oilsands with ports at Burnaby and in Washington state, a project to nearly triple the system’s capacity. Map from Kinder Morgan website.

Kinder Morgan, the Texas-based multinational that owns and operates the Trans Mountain Pipeline System, claims Trans Mountain is a significant contributor to federal and provincial income tax revenues. The company is relying on this as proof it deserves a public licence to triple its pipeline capacity in Western Canada.

Pouring tax revenues into Canada is not the story Kinder Morgan tells its U.S.-based shareholders. Promoting Trans Mountain south of the border, Kinder Morgan boasts of tax refunds — two in the past five years. From 2009 to 2013 Trans Mountain’s combined federal and provincial Canadian corporate tax contribution averaged just $1.5 million per year.

How could this be? The answer lies in complexities of U.S. corporate tax regulation which I will do my best to explain here.

First, a bit of history about how Kinder Morgan came into being.

Kinder Morgan began as a publicly traded Enron tax shelter in 1992 called Enron Liquids Pipeline, L.P. (see page 62). Publicly traded limited partnerships in the U.S. are called Master Limited Partnerships (MLPs). Ownership shares are units. MLPs are treated as a partnership for tax purposes and none of the income is subject to federal income tax. They combine the tax advantages of a partnership with the liquidity benefits of publicly traded stocks.

The Enron MLP held the energy giant’s liquid pipeline assets as well as some gas processing and coal transfer and storage facilities. The general partner, Enron Liquids Pipeline Co., was the operator.

Richard Kinder, Kinder Morgan’s current chair and CEO, was instrumental is setting up the arrangement. When Enron Liquids Pipeline was established, he was a member of the Enron board of directors, its president and chief operating officer (COO), and became the general partner’s first chair. Kinder was the person responsible for setting the company’s course years before he left Enron.

Beginning in 1995 Enron began to engage in a series of transactions that, according to the U.S. Joint Staff Committee on Taxation (page 109) were designed to “satisfy the literal requirements of the corporate tax laws, yet produce results that were not contemplated by Congress and not warranted from a tax policy perspective. Several of the projects were structured to duplicate and accelerate tax deductions.”

The first of these transactions was called Project Tanya. It was based on duplicating deductions between Enron companies — effectively claiming the same loss twice. Project Tanya resulted in federal tax savings of $66 million. The U.S. Joint Committee on Taxation report (page 119) explained that as director, president and COO, Richard Kinder was instrumental in delivering this strategy for Enron board approval.

On February 14, 1997 Kinder and William Morgan acquired Enron Liquids Pipeline, L.P. from Enron Corp. by buying the wholly owned general partner, Enron Liquids Pipeline Co. Acquiring the MLP and the general partner was hardly an arms-length deal — Kinder continued to receive a paycheque from Enron until the day after he took over the company. Morgan, also a former employee of Enron, had been on the board of the general partner since 1994.

With assets from Enron acquired to establish Kinder Morgan Energy Partners L.P. (KMP), Kinder and Morgan created their own board of directors and executive team for the general partner. The roster was heavily weighted with Enron insiders. Out of the nine original directors and officers, six were Enron employees and a seventh member of the team, Michael Morgan, was William Morgan’s son. The treasurer and secretary of Kinder Morgan’s company was an independent tax and accounting consultant underscoring the entity’s continued emphasis on tax planning. Enron Liquids Pipeline Co.’s 141 employees came with the deal at their existing salaries.

Within months of acquiring the corporate entities KMP filed a prospectus with the U.S. Securities and Exchange Commission (SEC) issuing three million units of the MLP to the public. Kinder Morgan’s 1997 prospectus — similar to its initial public offering in 1992 — promoted the tax related properties available to maximize unit holder returns over what they would be if the limited partnership were treated as a corporation for tax purposes.

The prospectus explained that the U.S. tax code requires publicly traded partnerships be taxed as corporations. However, a “Natural Resource Exception” exists (page 9) if the partnership earns 90 per cent or more of its income from the exploration, development, mining or transportation of any mineral or natural resource, including oil.

The natural resource exclusion means that KMP does not face corporate tax at the partnership level. This increases cash flow available for distribution to unit holders, including major unit holders like Kinder, and the general partner, wholly owned by Kinder Morgan Inc. (KMI), again with Kinder a major beneficiary.

Typically, distributable cash flow is paid quarterly and can wind up being treated in the hands of the unit holder as a considerable non-taxable return of capital. Thus KMP not only avoids corporate taxes as a “pass through” entity, taxes payable by unit holders are deferred or reduced over what they would be if the unit holder were a shareholder in a publicly traded corporation.

The special tax treatment — the government subsidy — the U.S. affords energy companies that are structured as MLPs is what has enabled Kinder Morgan to grow into the third largest energy company in North America.

Restructuring to save $20 billion in taxes

After 22 years of benefiting from this advantageous tax structure, Kinder Morgan’s MLP has matured. Because of a feature called Incentive Distribution Rights, as KMP grows the money available to distribute to its unit holders — its cash distributions — grows, but an increasing share flows through to the general partner. Kinder Morgan Inc. owns the general partner, and as a corporation is required to pay corporate tax on that growing income.

Thus, it’s sensible to argue that the successful growth of the MLP means Kinder Morgan should now face an increasing income tax burden. Think of it as reasonable payback to a system that afforded stellar growth because taxes in its formative years were avoided. But instead of treating income taxes as a price for living in a civilized society, Kinder Morgan is relying on its sophisticated corporate structure, a reorganization and accounting savvy to keep its tax payments as low as possible.

Kinder announced last August that his energy empire would undergo a makeover. The restructuring will see KMI purchase the other three publicly traded entities consolidating them into KMI.

The reorganization, by its leader’s own reckoning, reduces Kinder Morgan’s taxes payable by more than $20 billion over 14 years.

Kinder explained this to investor analysts in a conference call shortly after the announced restructuring. He characterized the deal as a “tax shelter” because the purchase price sets a higher value for the assets than keeping them on the books at their historical depreciated cost. He said, “From the purchase price alone, including the step up, we will realize over 20 billion dollars in cash tax savings over the next 14 years.”

Effectively KMI gets to work the intricacies of the accounting system. It will buy assets from its subsidiaries at a premium price and then depreciate these assets as if they were brand new. The deal creates a hefty $1.4 billion in tax savings each year for at least two decades. The market’s reaction to the reshuffling of Kinder Morgan’s corporate structure is likely why Rich Kinder, KMI’s largest shareholder, pocketed an extra $800 million the day after the announcement.

None of this is illegal under U.S. law. However, it’s fair to conclude what makes a doubling of the growth rate in KMI’s dividend to its shareholders possible — it’s a paper-based consolidation designed to inflate the value of assets and redirect tax revenue that could flow to governments into the pockets of U.S. shareholders instead.

And given the history I’ve outlined here, it is also fair to say that sophisticated use of corporate structures to minimize tax, maximize distributable cash flow and minimize disclosure and transparency, is key to Kinder Morgan’s corporate culture.

Canada’s tax landscape is different

MLPs do not exist in Canada. Their close cousins — Canadian Income Trusts — lost their special corporate tax privileges with legislative changes brought in by Finance Minister Jim Flaherty in 2006. The changes ensured that all special tax benefits of publicly traded non-real estate related trusts would be removed. Flaherty was concerned about significant tax revenue lost as established businesses in Canada rapidly converted from corporate to trust structures. He called the behaviour a “growing trend to corporate tax avoidance.” He said “it’s not right and it’s not fair.”

But Kinder Morgan has shown it knows how to acquire a Canadian firm and absorb it into its U.S. operations, converting it, effectively, into a U.S. MLP.

Remember a company called Terasen? In late 2005 Investment Canada approved the purchase by KMI of the shares of Terasen Inc. — a publicly traded Canadian corporation with its head office in Vancouver — at a steep premium. Terasen held natural gas and oil pipeline assets, including the Trans Mountain Pipeline System.

Kinder Morgan delisted Terasen from the Toronto Stock Exchange. Despite what the company says in its promotional literature that Trans Mountain’s expansion means “as Canadians we will have an asset that unlocks access to world markets and continues to support our economy,” Trans Mountain is not a Canadian asset benefiting Canadians. Canadians own less than two per cent of KMP.

After the purchase of Terasen, KMI engaged in a number of inter-company transfers involving many sophisticated entities including an Unlimited Liability Corporation (ULC) registered in Nova Scotia. The Trans Mountain Pipeline assets were eventually sold to KMP. In Kinder Morgan’s words they were “dropped down” to the MLP. This is how Trans Mountain came to be under KMP’s indirect full ownership control by 2007. The Terasen share purchase and related inter-company paperwork effectively turned Trans Mountain into a U.S. based MLP.

This is but one example of how Kinder Morgan has made an art form out of minimizing taxes in Canada and the U.S. The company has, in Kinder’s own words, a “convoluted complicated structure” with more than 250 separate corporate entities. Upwards of 20 are registered in Canada with at least six of them registered as ULCs (page 186).

The ULC is not a very familiar form of incorporation. Only Nova Scotia, Alberta and B.C. allow them. U.S.-based energy sector investors who are expanding into Canada increasingly rely on ULCs. Their unique features enable them to elude a 25 per cent withholding tax rate that would otherwise be applicable under the Canada-U.S. Tax Treaty. In 2009 the Treaty introduced anti-hybrid rules in Art. 4, Sec. 7, which were intended to deny the special treatment, but some companies have developed sophisticated repatriation strategies and so are able to work around the rules.

Request denied

I have gone into such detail here in order to show that fully understanding from a Canadian perspective Kinder Morgan’s structure, and tax implications, would demand an expert analyst with all the facts.

However, there is a paucity of publicly available financial information related to Trans Mountain because Kinder Morgan reports on its Canadian operations to the U.S. SEC on a consolidated basis as part of KMP. This means there are no separate financial statements filed related to its Canadian activities. This makes evaluation of the company’s Canadian operations difficult.

This we do know: Kinder Morgan Canada president Ian Anderson informed analysts in Houston, Texas, last January that the Trans Mountain system received a cash tax refund of $4.2 million in 2013. This even though Trans Mountain generated $167 million in distributable cash flow — net earnings plus non-cash items such as depreciation — available to its U.S. parent.

Anderson’s figures also tell us Trans Mountain has contributed combined federal and provincial corporate taxes that averaged a meager $1.5 million over the past five years. Trans Mountain received a tax refund in two of them.

Source: Kinder Morgan Analysts Conference 2013 (page 4) and 2014 (page 3). U.S. dollar figures translated to Canadian using Bank of Canada annual exchange rate.

Trans Mountain files accounting information with the National Energy Board on its regulated assets, which are a subset of its overall activity in Canada. These files reveal that although Trans Mountain earlier told the regulator it would pay $7 million in taxes in 2013, instead its regulated pipeline assets realized a tax refund of more than half a million dollars.

I asked Kinder Morgan to explain the discrepancy between its filing with the NEB, what it tells the Canadian public about its contribution to fiscal revenues and what it tells U.S. investors and analysts. These questions were filed (see pages 30-44) in an information request as part of my right as a qualified intervener in the current hearing. Kinder Morgan refused to answer.

I then asked the NEB to compel answers. Siding with Kinder Morgan, the board denied my request (beginning on page 105).

I believe Canadians are owed an explanation why this U.S. multinational pays so little in Canadian corporate income taxes related to Trans Mountain. The NEB seems content to buy Kinder Morgan’s story that it will pay a tax rate of 25 per cent on its net income and that its expanded operation will lead to about $100 million a year in federal and provincial corporate income tax revenue.

Indeed, in arguing for the Trans Mountain expansion Kinder Morgan presents itself to Canadians as a significant tax contributor. Yet Kinder Morgan now repatriates an average of $172 million per year from the Trans Mountain system for distribution to its U.S. based owners, but faces an average cash tax obligation of only $1.5 million in Canada.

Canada’s government owes us the facts

Bear in mind, too, that Kinder Morgan is Trans Mountain’s sole source banker. Without taking you through more arcane financial details, this means the U.S.-based parent company receives high returns on investment locked into toll rates that are approved by the NEB (paragraph 4, page 2).

Kinder Morgan’s restructuring will, as a result, mean huge windfall gain for the U.S. multinational on its regulated Canadian pipeline operations, guaranteed by the NEB (paragraph 890-1408).

But that’s just for the existing pipeline. Trans Mountain wants to triple its pipeline capacity, and because of economies of scale, will more than triple its financial drain from the Canadian economy. The NEB recently approved much higher tolls charged to Canadian shippers on both the existing pipeline and the proposed twin if the expansion goes through. These tolls reflect a cost of capital well above 12 per cent on $5.4 billion.

Today it costs about $2.75 to ship a barrel of oil to Chevron’s Burnaby refinery on the existing Trans Mountain Pipeline. If the expansion goes through, the price to ship that same barrel to Burnaby will be more than $5. Pretty much the same transportation price lift exists for imported refined petroleum products.

Since 90 per cent of the gasoline supplied to the interior and south coast of B.C. comes via Trans Mountain as either crude or refined products, those higher transportation costs are passed onto us. Every time a B.C. resident fills up it lines Rich Kinder’s pockets. If Trans Mountain’s expansion is approved, that amount increases substantially.

Kinder Morgan told the NEB during the toll hearings it wouldn’t bring the Trans Mountain expansion project forward if it didn’t exceed a 12 to 15 per cent rate of return. Meanwhile as Trans Mountain’s sole-source banker, it’s going to cost Kinder Morgan less than 4.5 per cent to deliver project financing.

If Kinder Morgan’s high return on equity in relation to its almost non-existent Canadian tax obligation does not concern the NEB, what remains, I would suggest, is for the federal government to step in and undertake a Canada Revenue Agency audit of all Kinder Morgan activities in Canada, particularly the transactions related to the purchase of Trans Mountain and the complex inter-company transactions that followed.

The CRA would be well advised to include a full examination of the company’s complex corporate structure, including its reliance on ULCs. It should include an examination of transfer pricing, particularly of debt and equity sourced by Kinder Morgan’s Canadian subsidiaries through their U.S. parent. Canadians deserve the bottom line facts about what benefits flow here, rather than south of the border, as Kinder Morgan proposes expanding its pipeline operations on our soil.

Read more: Energy, Rights + Justice,

Robyn Allan is an economist and former CEO of ICBC. She is a qualified expert intervener in finance, economics, insurance and public policy at the Trans Mountain Expansion project public hearings.

Activist Legal Info: Injunctions and Contempt of Court

***This is general legal information. It is not advice. If you have questions or concerns about your particular circumstances, get specific legal advice from a lawyer.***

What is an injunction?

An injunction is a legal remedy granted by a court to prevent interference with the legal rights of a person, a company or the government. It is an order issued by a judge of the BC Supreme Court after an application is filed by a party to a lawsuit (“the Applicant”). The injunction is meant to protect the interests of the Applicant while the lawsuit is pending, usually by requiring certain people (e.g. protestors) to not do certain things (e.g. block access a particular road).

Before an injunction is issued, the court holds a hearing. If the matter is urgent, the hearing can be held ex parte, meaning that the defendants aren’t present. The court’s key concern is whether the injunction would be “just and equitable” given the circumstances of the case. The Applicant seeking the injunction needs to prove three things:

That there is a serious legal issue to be tried in the underlying lawsuit (even if it never gets to trial!)
That they will suffer “irreparable harm” if the junction is not granted (usually, this means damage that cannot be financially compensated)
That the “balance of convenience” favors issuing the injunction (in other words, the court asks who would suffer more harm if the injunction was granted or refused)
An injunction can be issued on an interim (temporary) basis or it can be interlocutory, meaning that it will stay in force until the lawsuit is completed. Injunctions can also be permanent.

What happens after an injunction is issued?

The Applicant must make sure that people subject to the injunction know that it exists and what it says. They can post signs, hand out copies, have the injunction read out, etc. Injunctions are commonly issued against named defendants as well as “John Doe, Jane Doe and Persons Unknown”. This means that anyone – not just the named defendants – who is made aware of that injunction is required to obey it. If the injunction doesn’t include an enforcement order, the police will seek one from the court so that they have the power to enforce injunction and detain those who violate it.

What is contempt of court?

Because an injunction is an order of the court, any person who violates the terms of an injunction can be charged with contempt of court. This means that deliberately violating an injunction can lead to your arrest. For example, if police read out the injunction and order people to leave the area and you choose to remain, you could be arrested for contempt. If arrested, you should be told what the charge is, and you have the right to get advice from a lawyer and to have a bail hearing within 24 hours or as soon as practicable.

Contempt of court is a unique, common law (judge made) offence that is not found in Canada’s Criminal Code. There are two kinds of contempt – civil and criminal – and both are meant to punish “willful” and/or “deliberate” behavior that interferes with the administration of justice. For contempt to be considered criminal, there must be conduct amounting to “public defiance” which demonstrates “scorn” or “contempt” for the court and justice system.

What happens if I am charged with contempt?

If you are charged with contempt – civil or criminal – you will be tried by a judge (not a jury) and will have the opportunity to present a defence. The possible penalties for people found guilty of criminal or civil contempt are the same: fines or terms of imprisonment. Sentences for contempt arising out civil disobedience have ranged from a few hundred dollars in fines to jail terms of 6 months or more. Contempt convictions do not result in a criminal record because they are not offences under the Criminal Code but they may be entered onto other police databases. Finally, defendants need to organize. Work together to support each other and your movements, to fundraise and to keep the focus on the struggles for environmental and social justice that got you here in the first place.

More info: BCCLA Arrest Handbook (; Leo McGrady’s Guide to the Law of Protests in BC (; UVic Environmental Law Centre Civil Disobedience Handbook (; beware: slightly dated).

Prepared by: Irina Ceric, Lawyer, Edelmann & Co. | irina @
November 2014, Unceded Coast Salish Territories

On the Mountain November 17, 2014 at 4:00 PM

November 17 at 4:00PM on Burnaby Mountain as the RCMP read the Kinder Morgan Injunction to clear the area so the Texas based big oil company can clear cut trees and drill on conservation land. Coast Salish peoples and many groups come together to protect the land.

Women Standing Up on Burnaby Mountain

Rueben George on Burnaby Mountain

Coast Salish Speakers