Child Safety, Zoning By-laws and the Oil Industry

FOR IMMEDIATE RELEASE

Burnaby: December 31, 2012

Residents of Burnaby call on Mayor Derek Corrigan to scrap city by-laws that allow schools, daycares and residential developments to be built near refineries, oil tanks, substations and pipelines. The risk of leaks and spills of combustible oil and carcinogenic gases is unacceptable and should have never been allowed.

Elsie Dean of BROKE says, “We should not have to wait for a major catastrophe before we act. Schools and daycares should never have been built near oil facilities in the first place and we need to ensure that they never will again. Like gun control, we should be thinking about laws to protect children before a crisis occurs. Schools and housing developments must be protected from carcinogenic and combustible gases.”

The potential health risks to children in schools near or adjacent to oil pipelines is underlined by the tragedy in Fallon, Nevada. A lawsuit launched by a Nevada mother against Kinder Morgan alleges that the company failed to adequately monitor and repair a pipeline that was leaking jet fuel beneath a school playground and that the leak contributed to a cluster of childhood cancer cases at the school and the death of one child.

There are warnings about noxious gases strategically placed throughout the areas where tank farms, oil pipelines and substations have been allowed. Yet schools like Burnaby North Senior, and Forest Grove and Seaforth Elementary sit close to, or below, major oil facilities. Others like Stoney Creek and Lyndhurst Elementary and a YMCA childcare center sits just meters from both highly combustible jet fuel and heavy oil pipelines that carry a soup of toxic chemicals.

There have been major spills and leaks near these and other schools, daycares and residences throughout the years 2007 , 2008 , 2009 and 2010 . All have required an emergency response and evacuations, costing tax payers thousands of dollars. In January 2012, residences and a private school also had to be closed in Sumas.

Tax payers have always borne the costs associated with emergency response, including evacuations and medical care resulting from oil pipeline failure, oil spills and noxious gases from tank farms and substations.

Commenting on the cost to tax payers, Elsie Dean makes the point that “The companies that are found responsible for spills and oil pipeline ruptures should pay not only for clean up, but for all emergency response and medical care as well. The cost to tax payers of emergencies has not been factored into the expense of oil pipelines, tank farms, and sub-stations. Nor have the costs of routine air monitoring near the oil refinery on Burrard Inlet. When Kinder Morgan promises a few million in tax payments, it should be balanced against the hidden costs to tax payers of maintaining a huge oil infrastructure in Burnaby.”

In response to the concern about children’s health in schools and daycares near oil infrastructure, BROKE calls on all levels of government as well as the Union of British Columbia Municipalities and the Federation of Canadian Municipalities to recommend that oil industries should not be zoned near schools, daycares and residences and that all measures must be employed to separate dangerous industries from homes and schools. Children’s safety should be the first priority for every level of government.

– 30 –

For more information please email info@brokepipelinewatch.ca

1. The Burnaby Teacher’s Association has already passed a resolution on December 4, 2012 to demand the Burnaby school district monitor oil pipelines for leaks and develop comprehensive evacuations plans for schools near tank farms, refineries and substations.
2. Kinder Morgan plead guilty to negligence in the 2007 pipeline rupture and found negligent by the National Energy Board in the 2012 incident.
3. http://www.mynews4.com/news/local/story/fallon-cancer-cluster/–P1ofP56UqVNbV3tPtJDg.cspx

SLAPP Suit Resources (Strategic Lawsuits Against Public Participation)

In November 2014, hundreds protested daily for weeks on Burnaby Mountain against the Kinder Morgan (KM) pipeline expansion, and over 100 were arrested. KM launched lawsuits against five individuals and Burnaby Residents Opposing Kinder Morgan Expansion (BROKE) claiming huge damages.

Below are a number of links to informative articles and other documents about that case and about SLAPP suits in general.

 

Financial Clout v. Right to Speak Out

Kinder Morgan v. Freedom of Speech

BC Pipeline-Protest Case Shows How Lawsuits Threaten Democratic Voices

How should we slap back at SLAPPs?

Lessons from a fish farm defamation lawsuit

Kim Benson

The West Coast Environmental Law SLAPP Handbook

Canadian Internet Policy and Public Interest Clinic

Strategic lawsuit against public participation

Strategic Lawsuits Against Public Participation: The British Columbia Experience

Washington State can view spill-response plans for pipeline that B.C. cannot

Washington State has documents outlining emergency response plans for a Kinder Morgan pipeline –plans similar to those British Columbians have been told by Canada’’s National Energy Board they’’re not allowed to see due to security concerns.

The B.C. government lost a battle with the National Energy Board in January to have greater access to Kinder Morgan’s Trans Mountain Pipeline emergency response plan (ERP). Kinder Morgan had already provided B.C. with a version of the plan, but significant portions were blacked out.

The denied information included specific response times, valve locations, and evacuation zone maps. The government had argued it needed the entire plan to be able to understand Kinder Morgan’’s ability to respond to an oil spill. The proposed $6.5-billion Trans Mountain expansion would twin the pipeline and triple the capacity for Alberta oil intended for Asian markets.

But in Washington State–where the pipeline would cross through to Puget Sound–Kinder Morgan has provided a more comprehensive response plan.

NDP environment critic Spencer Chandra Herbert wants to know why a similarly detailed plan isn’’t available for B.C. residents.

““We need to be able to get at least the information they are providing in Washington State,”” he said.

The U.S. plan includes information on response timelines, the availability of emergency equipment near specific pipeline sections, and a list of companies that could help out after an oil spill.

In one example, a company called BakerCorp is identified as being able to deliver “”21,000 gallon tanks to a spill site within 12 hours,”” and having enough pumps and hose to remove 6,300 gallons of oil per minute.

Yet in B.C., the energy board rejected B.C.’s demand for a complete response plan, citing sensitive information that could cause ““security concerns.””

A link to the Washington State ERP was available online recently at DeSmog Canada, but has since been deactivated by state officials.

The emergency plans were only to be online between Jan. 9 and Feb. 9 during a public consultation, said Scott Zimmerman from the Washington State Department of Ecology, but they were accidentally left up until Feb.18.

The U.S. plan details further information about “”unique”” sections of the pipeline. These include the location of shutoff valves, areas where the pipeline crosses water, peak volumes, and the thickness of pipeline walls.

In the event of an emergency, 48-hour timelines are also presented for each section of the pipeline, with descriptions of the type of equipment and number of people needed–as well as how much oil could be recovered immediately after a spill.

On the Samish River – a location identified as “”Zone 3,”” about 40 kilometres south of Bellingham-Kinder Morgan, estimated it could have 18 people and 600 metres of containment boom available within two hours of a spill.

A spokesman with the B.C. Mines Ministry did not respond directly when asked for an opinion on the plan’’s availability in Washington State.

But the B.C. government has been aware since last year that a version of the plan was available to the Americans. B.C. argued in its motion to the NEB asking for the public release of the information that keeping it secret in B.C. is ““inexplicable.””

It “”calls into serious question the legitimacy of Trans Mountain’s claim,”” reads the B.C. government motion.

In the same motion, the province said history showed the possibility of a spill from Trans Mountain facilities.

“”The potential for devastating effects on the environment, human health, and local economies is irrefutable,”” it said.

In 2007, a spill released about 1,500 barrels of oil in a Burnaby neighbourhood, with 440 barrels flowing into the Burrard Inlet.

Citigroup to invest $100bn in tackling climate change

Citigroup, the third largest US financial institution, on Wednesday said it will invest a whopping $100bn over the next decade to reduce the impacts of climate change. The bank said it will use the money the finance green initiatives and sustainable growth.

The global financial corporation’’s CEO Michael Corbat made the announcement at a breakfast gathering of stakeholders, employees and partner organizations in New York.

The money will be used to finance large, renewable-energy projects, for example, to aid greener affordable housing and to finance municipal infrastructure to reduce water waste and more, says Valerie Smith, director of corporate sustainability at Citigroup.

It will also be used to help Citigroup reduce the environmental impacts of its global operations and supply chain, and to help its clients address environmental risks, according to Corbat’s prepared statement.

This isn’’t the first time Citigroup has committed money to tackling climate change. The company in 2007 set a similar goal of making $50bn in green investments by 2016, a goal which it met three years early. Now it is doubling down.

Sustainability is good business

In the last few years, several large banks have set similar investment goals. Bank of America and Wells Fargo both committed $50bn for financing sustainable initiatives and green transport in 2013, for example. It adds up to real money.

But some industry insiders question whether all the new money for sustainable investments is enough to defray the environmental damage from banks’’ investments in coal and other fossil fuels. Citibank also is still active in the coal market, although it has said coal is “”in structural decline”.”

It’’s no secret that banks are in business to make money. This slew of environmental commitments is interesting because it underlines that sustainability is in high demand.

Citigroup’’s Smith confirmed that the company’’s announcement comes in the face of immense client demand for sustainable investing: ““You probably can follow the chain. Our clients are demanding it, our clients’ clients are demanding it, our clients’ investors are demanding it. There is a momentum and focus on solving big global societal problems that everybody is rallying to.””

In addition to investing decisions being driven by sustainability metrics, there is a business case for investing in instruments such as green bonds.

““The business case is that we are at the inflection point of the greatest transition in human history from a fossil-fuel-based economy to a clean economy,”” says Andrew Behar, the CEO of As You Sow, a nonprofit promoting environmental and social corporate responsibility.

The World Economic Forum estimates this transition will require $1tn in investments each year for the next 20 years, Behar says.

““Investors are looking at this and going, ‘‘I want to be a part of this,'”’” he said. “”Look at a municipal bond, they’’re going to want to change their streetlights to LEDs, why? Sustainable electricity. Why would they want to put solar on their roofs? [So] they can lock in 20-year rates. It’’s the economics now. It’’s not just about wanting to save the planet.””

A strong signal to clients

The business case, he agrees, provides the context for banks’’ new strategies. “”They’’ve seen the demand and are stepping up and providing the products,”” he said.

According to Behar, the larger movement towards sustainable investment was prompted at least in part by the Valdez Principles, instituted by sustainable business nonprofit Ceres after the Exxon Valdez oil tanker spill in 1989.

The 10-point code directs corporations, amongst other things, to better inform the public and establish audits and reports on their environmental impact. The availability of metrics coupled with the larger transition of energy systems makes this the time for financial institutions to keep pace.

“”We’’ve been starting to see that the smarter investment people are getting ahead of the curve and making sure that there’’s enough capital to make this transition,”” Behar said.

Citi’’s new ambitious goals were based on the lessons learned from its previous targets, Smith said. “”This strategy and the goals are related with the fact in mind that we saw activity increase much more than we expected with our previous $50bn finance goals.””

The finance hub is funded by EY. All content is editorially independent except for pieces labelled “brought to you by”. Find out more here.

Despite Kinder ruling, NEB wants pipeline emergency response plans made public

The National Energy Board wants companies in Canada to make their emergency response plans public for existing pipelines, even though it has ruled Kinder Morgan can keep its plans secret from British Columbians.

“Our chairman is not very happy. Canadians deserve to have that information,” said Darin Barter, a spokesperson for the NEB.

“There’s a public will for that information, and industry needs to find a way to make it public.”

Companies are not required to disclose their emergency response plans under Canadian law. Barter said the board is not calling for a legislative change, but for a commitment from industry to be more transparent.

He said chairman Peter Watson sent a letter on Feb. 5 about the issue to the Canadian Energy Pipeline Association. A spokesman for the association said it received the letter and will be discussing how to meet the NEB’s expectations.

But during a conference call on Feb. 20 Kinder Morgan maintained it is not required to release further details of its emergency response plan after the NEB agreed that sensitive security details could be at risk.

Details of the company’s spill response plan in Washington State have been publicly posted online.

The decision to keep the plans secret in B.C. has prompted the provincial government to call for more transparency around Kinder Morgan’’s ability to respond to a potential oil spill. The proposed $5.4-billion Trans Mountain expansion would twin the pipeline and triple the capacity for Alberta oil intended for Asian markets.

Ian Anderson, President of Kinder Morgan Canada, addressed the issue on Friday.

““National security and public safety reasons made it prudent to keep aspects of the plan confidential and private,”” he said.

But Green MLA Andrew Weaver thinks the company should fully disclose the details of its plans. Especially, he said, considering that Washington State–where sections of the Trans Mountain pipeline cross into–already has a much more detailed plan than B.C.

““I do not understand what the security element is,”” he said, “If it’s okay for the US to have the full version, I don’t know why B.C. can’t have it?””

Still, Michel Juneau-Katsuya, a former senior intelligence officer with the Canadian Security Intelligence Service (CSIS), said security is a concern.

Information about valve locations and access points could fall into the hands of environmental extremists, who could potentially use it for sabotage, he said. He believes the The NEB was right to keep aspects of the emergency plan a secret.

Acts of sabotage have occurred in the past, said Mr. Juneau-Katsua, citing incidents like the 2008 bombings that targeted gas pipelines near Dawson Creek, B.C.

“If someone lost their life because an extremist wanted to demonstrate against a pipeline–that would be absolutely unacceptable,”” he said.

Linda Pilkey-Jarvis, who works with the Washington State Department of Ecology, said that state officials discussed the security concerns associated with publicly available plans, but ultimately ruled on the side of transparency.

“Pipeline advocates hold us up as an example that others should follow,”” she said, “”but industry gets uncomfortable with the level of information we make available.””

Mr. Juneau-Katsuya, who believes pipelines do pose security concerns, was shocked to hear that Washington State makes their plans public.

““I’’m very surprised,”” he said, ““They might actually expose themselves as a target.””

The NEB will make a decision next January about whether the Trans Mountain pipeline should be approved. The federal government will then make a final decision approximately three months after.

With a report from The Canadian Press

Mulcair: Anti-Terrorism Bill’s Wording Makes It Easier For Government To Spy On Foes

OTTAWA – Information-sharing measures in proposed anti-terrorism legislation are so broadly worded they would allow the government to spy on its political foes, NDP Leader Tom Mulcair says.

Mulcair took exception Tuesday to the bill’s mention of interference with infrastructure or economic stability as activity that undermines the security of Canada.

The wording is sufficiently vague to permit a Canadian Security Intelligence Service investigation of anyone who challenges the Conservatives’ social, economic or environmental policies, the Opposition leader said during the daily question period.

“What’s to stop this bill from being used to spy on the government’s political enemies?”

Prime Minister Stephen Harper dismissed the suggestion, telling the House of Commons the NDP had entered the realm of conspiracy theory. “That’s what we’ve come to expect from the black helicopter fleet over there.”

The bill introduced late last month would give CSIS power to disrupt suspected terror plots, thwart financial transactions and covertly interfere with radical websites.

The legislation would also relax the sharing of information about activity that undermines the security of Canada — “a new and astonishingly broad concept,” law professors Craig Forcese and Kent Roach wrote in an analysis published Tuesday.

It comes close to authorizing a “total information awareness”” approach to security and in that sense “we consider it a radical departure from conventional understandings of privacy,” say the authors.

Even as it erodes privacy, the bill fails to learn from the lessons of two federal commissions of inquiry that documented the effects of uncontrolled information-sharing on Arab-Canadians, including Ottawa’s Maher Arar, who were imprisoned and tortured in Syria, the national security experts say.

Government claims that existing watchdogs will provide a check against these powers are not convincing, Forcese and Roach conclude.

The bill says activity that undermines Canadian security does not include lawful advocacy, protest, dissent and artistic expression.

Still, some environmentalists wonder if the new legislation will authorize CSIS to step up surveillance of activists.

Green party Leader Elizabeth May noted some demonstrations are not lawful but also do not involve violence–for instance a rally to block an oil pipeline.

“Will non-violent, peaceful activities be exempted from this act?” she asked Tuesday in the House.

Harper said the bill was “designed to deal with the promotion and actual execution of terrorist activities, and not other lawful activities.”

Keith Stewart, an energy campaigner for environmental group Greenpeace Canada, has difficulty accepting government assurances–particularly given the recent leak of an RCMP intelligence assessment entitled Criminal Threats to the Canadian Petroleum Industry.

The January 2014 assessment, initially obtained by Montreal’s La Presse newspaper, says those within the movement willing to “go beyond peaceful actions primarily employ direct action tactics, such as civil disobedience, unlawful protests, break-and-entry, vandalism and sabotage.”

The bill strengthens CSIS powers without an accompanying increase in oversight–a recipe for misuse, Stewart said. He also worries about where the fruits of investigations will end up.

“I don’t want tax dollars paying for Canadian spies to conduct what would otherwise be illegal surveillance on environmental groups and then passing this on to the oil industry.”

Follow @JimBronskill on Twitter

‘Anti-petroleum’ movement a growing security threat to Canada, RCMP say

The RCMP has labelled the “”anti-petroleum”” movement as a growing and violent threat to Canada’’s security, raising fears among environmentalists that they face increased surveillance, and possibly worse, under the Harper government’s new terrorism legislation.

In highly charged language that reflects the government’’s hostility toward environmental activists, an RCMP intelligence assessment warns that foreign-funded groups are bent on blocking oil sands expansion and pipeline construction, and that the extremists in the movement are willing to resort to violence.

“There is a growing, highly organized and well-financed anti-Canada petroleum movement that consists of peaceful activists, militants and violent extremists who are opposed to society’’s reliance on fossil fuels,”” concludes the report which is stamped “”protected/Canadian eyes only”” and is dated Jan. 24, 2014. The report was obtained by Greenpeace.

““If violent environmental extremists engage in unlawful activity, it jeopardizes the health and safety of its participants, the general public and the natural environment.””

The government has tabled Bill C-51, which provides greater power to the security agencies to collect information on and disrupt the activities of suspected terrorist groups. While Prime Minister Stephen Harper has identified the threat as violent extremists motivated by radical Islamic views, the legislation would also expand the ability of government agencies to infiltrate environmental groups on the suspicion that they are promoting civil disobedience or other criminal acts to oppose resource projects.

The legislation identifies “activity that undermines the security of Canada” as anything that interferes with the economic or financial stability of Canada or with the country’-s critical infrastructure, though it excludes lawful protest or dissent. And it allows the Canadian Security and Intelligence Service to take measures to reduce what it perceives to be threats to the security of Canada.

The British Columbia Civil Liberties Association has already launched challenges to the RCMP complaints commission and the Security Intelligence Review Committee–which oversees the Canadian Security Intelligence Service–over alleged surveillance of groups opposed to the construction of the proposed Northern Gateway pipeline in B.C.

“”These kind of cases involving environmental groups–or anti-petroleum groups as the RCMP likes to frame them–are really the sharp end of the stick in terms of Bill C-51,”” said Paul Champ, a civil liberties lawyer who is handling the BCCLA complaints. “”With respect to Bill C-51, I and other groups have real concerns it is going to target not just terrorists who are involved in criminal activity, but people who are protesting against different Canadian government policies.””

RCMP spokesman Sergeant Greg Cox insisted the Mounties do not conduct surveillance unless there is suspicion of criminal conduct.

“”As part of its law enforcement mandate, the RCMP does have the requirement to identify and investigate criminal threats, including those to critical infrastructure and at public events,”” Sgt. Cox said in an e-mailed statement. “”There is no focus on environmental groups, but rather on the broader criminal threats to Canada’s critical infrastructure. The RCMP does not monitor any environmental protest group. Its mandate is to investigate individuals involved in criminality.””

But Sgt. Cox would not comment on the tone of the January, 2014, assessment that suggests opposition to resource development runs counter to Canada’’s national interest and links groups such as Greenpeace, Tides Canada and the Sierra Club to growing militancy in the “”anti-petroleum movement.””

The report extolls the value of the oil and gas sector to the Canadian economy, and adds that many environmentalists “”claim”” that climate change is the most serious global environmental threat, and “”claim”” it is a direct consequence of human activity and is “”reportedly”” linked to the use of fossil fuels. It echoes concerns first raised by Finance Minister Joe Oliver that environmental groups are foreign-funded and are working against the interests of Canada by opposing development.

“”This document identifies anyone who is concerned about climate change as a potential, if not actual–the lines are very blurry ––‘anti-petroleum extremist’’ looking to advance their ‘‘anti-petroleum ideology,'”’” said Keith Stewart, a climate campaigner for Greenpeace.

““The parts that are genuinely alarming about this document are how it lays the groundwork for all kinds of state-sanctioned surveillance and dirty tricks should C-51 be passed,”” he said.

A spokeswoman for Public Safety Canada said Bill C-51 does not change the definition of what constitutes a threat to Canadian security, and added CSIS does not investigate lawful dissent.

“”CSIS has a good track record of distinguishing genuine threats to the security of Canada from other activities,”” Public Safety Canada’’s Josée Sirois said. “”The independent reports of the Security Intelligence Review Committee attest to CSIS’’s compliance with the law.””

 

Mr. Obama’’s Easy Call on Keystone Bill

The New York Times Editorial Board

Congress has delivered to President Obama a bill commanding him to approve construction of the Keystone XL oil pipeline from Canada, accompanied by a warning from House Speaker John Boehner to ignore the “”left-fringe extremists and anarchists”” who oppose the project.

It was not immediately clear whom Mr. Boehner had in mind, unless he meant the 90 scientists, economists and Nobel laureates who appealed this week to Mr. Obama to reject the pipeline on the grounds that the United States should not be complicit in unlocking some of the dirtiest fuel on the planet. In any case, Mr. Obama should ignore the speaker and, as he has promised, veto the bill. Because the pipeline would cross an international border, the decision about whether to proceed is his to make, not Congress’s, and the State Department review that will help guide that decision is not yet complete.

The veto is the easy call. The tougher one–for the president and his secretary of state, John Kerry–is whether eventually to say yes or no to the pipeline, which would carry about 800,000 barrels of oil a day from Alberta’’s tar sands to refineries on the Gulf Coast. In the great scheme of things, this would not be a big addition to a global oil output that now exceeds 90 million barrels a day. And the oil would come from a reliable friend, Canada. Building the pipeline would also provide about 3,900 temporary construction jobs over two years, but no more than 50 permanent jobs thereafter.

At the same time, both Mr. Obama and Mr. Kerry have declared, without reservation, that climate change is a grave and increasingly tangible threat to world stability. The Canadian tar sands oil can only add to that threat.

One reason is that tar sands oil yields roughly 17 percent more greenhouse gases than conventional crude oil. A bigger reason is that there is so much of it–170 billion barrels recoverable with today’’s technology and maybe 10 times that amount in potential resources. Mainstream climate scientists are virtually unanimous in saying that as much as two-thirds of the world’’s deposits of fossil fuels must remain in the ground if climate disaster is to be avoided. Alberta’’s tar sands oil should be among the first such deposits we decide to leave alone.

Saying no to the pipeline will not prevent the Canadians (and American oil companies that have invested in Alberta) from extracting the oil. But it could make the job much harder. The industry hopes to expand daily production to about five million barrels in 2030 from the current 1.9 million. Doing this profitably will require robust oil prices and access to pipelines, which are a much cheaper way of moving oil than rail. And with oil prices falling fast, pipelines become even more necessary.

Not building a pipeline means that more oil — and more carbon dioxide — will be left in the ground. That is the main reason to say no. Another is that, at least right now, this country does not need the oil. Improved technology, chiefly hydraulic fracturing and horizontal drilling, has opened up vast new deposits of not only natural gas but crude oil; in January 2014, Mr. Obama was able to announce that for the first time in decades the United States was producing more oil than it imported, and the Energy Information Administration has forecast that reliance on overseas oil will continue to fall.

The stars seem very much in alignment for a courageous presidential decision that would command worldwide attention and reinforce America’’s leadership role in the battle against global warming.

What is a SLAPP and does B.C. need a law?

by Peter O’Neil

Recent lawsuits have revised the debate over ‘strategic lawsuits against public participation’ in B.C. Yet many of the cases that some call SLAPPs would not be covered by typical SLAPP laws in the U.S. and elsewhere

OTTAWA–Society’’s rich and famous, from Oprah Winfrey and Jay Leno to the shareholders of Louis Vuitton, are among the many around the world who have been faced with so-called SLAPP lawsuits.

But while the wealthy have the financial means and often helpful laws to fight a “strategic lawsuit against public participation,” targets of alleged SLAPPs in B.C. have a limited ability to defend themselves.

SLAPP suits are typically based on weak legal grounds and are intended to silence critics rather than to win a hefty judgment. And more often than not they’’re aimed at those who can’’t afford a drawn-out legal battle.

Two recent cases have set off a new debate over whether B.C. should revisit Liberal premier Gordon Campbell’’s 2001 decision to scrap a months-old anti-SLAPP law. The law had been passed during the dying days of the New Democratic Party government.

At the time the Liberals argued that such a law, the first of its kind in Canada, was both unnecessary and would lead to a “”protest culture”” in B.C.

It gave judges the power to quickly dismiss certain lawsuits aimed at stifling free speech, with hearings taking place no more than 60 days after a complaint under the anti-SLAPP law was filed. It allowed judges to award costs and impose damages, to be paid by the party that launched the unwarranted legal action.

The bill set tough standards to prove a case was a SLAPP, but also recognized that protesters had “”qualified privilege”” to speak out in a way “”prejudicial”” to the offended party–as long as there was an absence of malice.

The most prominent recent case involved last October’’s $5.6-million lawsuit by Trans Mountain Pipeline, owned by Texas-based pipeline giant Kinder Morgan, against five individuals linked to last autumn’s Burnaby Mountain protests.

The five defendants trespassed and “”wrongfully and without excuse entered upon the Burnaby lands, and physically obstructed, impeded, interfered with and thereby prevented”” Trans Mountain from conducting its fieldwork, according to the statement of claim, which also accused the group of being engaged in a conspiracy to stop the company’’s work. The protests had targeted the company’’s National Energy Board-sanctioned preliminary work on its proposed $5.4-billion oilsands pipeline expansion.

Trans Mountain insisted it was a legitimate legal action and not a SLAPP suit.

But late last month, the company formally abandoned the lawsuit against all five, saying that while it had lost money because of the protests, it wanted to act in the “interest of conciliation.”

The second involves a B.C. company’’s lawsuit against an environmental group, alleging defamation for statements about possible negative effects of Taseko Mines Ltd.’’s proposed mine near Williams Lake. Taseko, which didn’’t respond to an interview request, clearly believes in the legitimacy of its suit, as the case against Wilderness Committee has been before the courts for two days of testimony and cross examination.

Lawyers for each side will meet again to give their final arguments at the end of March, said Joe Foy, the environmental group’’s national campaign director. He said the group had never been sued for defamation before.

Experts consulted by The Vancouver Sun said it’’s often difficult to determine whether or not a lawsuit is a SLAPP. Only judges who have a chance to hear and weigh evidence from both sides, and balance a plaintiff’’s right to sue with the public interest, can determine if a fine line has been crossed.

And the very threat of a SLAPP discourages speculation.

““Canada is considered to have some of the most plaintiff-friendly defamation laws in the English common law world,”” said University of Victoria law professor Chris Tollefson. “”Anyone calling a suit a SLAPP suit risks being hit with a SLAPP.””

The controversy over the two cases has acted as a reminder that B.C. was once, very briefly, a pioneer in the area.

““It’’s a real shame (that the law was repealed), especially considering B.C. was the first Canadian province to have actually adopted an anti-SLAPP bill,”” said Normand Landry, a University of Quebec professor and author of Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. ““It actually was a very influential bill both in Canada and elsewhere in the world. It became a blueprint.””

Quebec is the only province with such legislation, enacted in 2009. Ontario’’s Liberal government is pushing through its own bill even though Ontario’’s business community, like Quebec’’s, argues that the law is unnecessary and troublesome.

More than 30 U.S. states have anti-SLAPP legislation. There is also an anti-SLAPP statute in Australia.

Experts say it’’s almost impossible to declare any case a SLAPP at the outset. Laws vary considerably, and judges must consider both the intent of the plaintiff and the broad impact of the lawsuit on public debate. And there are even disagreements on how to define the term.

“”It’’s really in the eye of the beholder,”” said lawyer Marko Vesely, who questions the need for an anti-SLAPP law. He is a partner at Vancouver-based Lawson Lundell, one of Canada’’s top corporate law firms.

Anti-SLAPP laws began in the highly litigious U.S. after two American academics wrote in the late 1980s about what they considered a rising tide of lawsuits aimed at stifling public debate.

One of the best-known examples was the $12 million US lawsuit filed by Texas cattlemen against Oprah Winfrey in 1996, after she declared during a broadcast on mad cow disease that she’d never eat another hamburger. She won the case even though Texas didn’t have an anti-SLAPP law.

In 2006, both Leno and Louis Vuitton used California’’s law to get dismissals of frivolous legal claims.

The most prominent B.C. case took place in 1992 after MacMillan Bloedel launched a lawsuit against local authorities on Galiano Island opposed to the company’’s development plans. Though the Galiano Conservancy Association successfully fought the suit, “”the case took a toll on the organization, diverting its time and efforts away from the real dispute,”” Tollefson wrote in a 2010 paper. He noted that the price the conservancy paid would have been much higher had the Sierra Legal Defence Fund, now Ecojustice Canada, not provided free legal help.

Supporters of an anti-SLAPP law for B.C. said it would help prevent corporations from intimidating individuals and citizens’ groups.

But Lawson Lundell’s Marko Vesely argues it would be “a “solution in search of a problem.”” He said Canadian judges already have the power to dismiss frivolous suits, and agrees with former B.C. Attorney General Geoff Plant that such a law encourages a ““protest culture.””

But other experts say judges typically don’’t throw out cases unless they’’re blatantly without merit, and even then they often don’’t award full costs to defendants.

Josh Paterson, executive director of the B.C. Civil Liberties Association, said judges need to be given explicit direction from legislators to consider the public interest.

“”There needs to be a statute to specifically allow them to look at the public effects on freedom of expression.””

But experts also said it’’s unclear whether B.C.’’s 2001 SLAPP law would have provided any help to the Burnaby Mountain protesters, since the law and most others SLAPP laws around the world generally focus on free speech and do not provide protection for those engaged in civil disobedience.

Eric Goldman, a professor at the Santa Clara University School of Law in California, said none of the 30-odd U.S. states with SLAPP laws would protect someone breaking the law or violating a court order.

Ontario’’s new law, however, might lay the groundwork for a broader definition, according to Ramani Nadarajah, a lawyer with the Canadian Environmental Law Association. She pointed to its broad definition of “”expression”” as “”any communication, regardless of whether it is made verbally or non-verbally.””

““So I think people who are engaged in civil disobedience would be able to seek protection under the bill.””

Paterson, of the B.C. Civil Liberties Association, said his organization never advocates law-breaking.

But he expressed concern over the now-abandoned Trans Mountain suit, which alleged that defendants were engaged in a conspiracy to block work on Burnaby Mountain. He said an anti-SLAPP law should help people who face suits for merely talking about standing in front of bulldozers.

“”People should be free to say those things and not be threatened with a lawsuit.””

Often, high-profile alleged SLAPPs would clearly not be covered by typical anti-SLAPP laws.

Fish farm protester Don Staniford, for instance, claimed he was a SLAPP victim when he was sued by Mainstream Canada, now Cermaq Canada, for defamation. B.C.’’s largest salmon-farming firm was responding to Staniford’’s Internet campaigns alleging that farmed salmon was as dangerous as smoking cigarettes.

B.C. Supreme Court Judge Elaine Adair ruled in 2012 in favour of his “fair comment” defence, based on her conclusion that he honestly meant what he said even though his allegations were both defamatory and malicious. But that decision was reversed in the B.C. Court of Appeal in 2013, and last year the Supreme Court of Canada refused to hear Staniford’’s appeal.

““I wouldn’’t support an-anti-SLAPP law that provided full legal protection to erroneous statements of fact, made recklessly or carelessly,”” Tollefson said.

Throw a Party

Valentines Day Party!

What do you do when you get sued by Kinder Morgan? Throw a party!

Valentine SLAPP Suit Party

Valentine’’s Day! Have a heart for Mother Earth! Live Music. Silent and Live Auctions and Lots of Door Prizes

BROKE is holding a Valentine’’s Day Fundraiser party to help our legal defence fund against Kinder Morgan’’s SLAPP suit.

Saturday, February 14. Doors open at 6PM at the Mountain Shadow Pub, 7174 Barnet Road, Burnaby

Tickets are just $20 and include a burger, fries and a house beer, wine or pop. (Chicken and vegan alternatives may be ordered at the Pub for $2 more, payable to your server.)

Reserve your tickets for BROKE’s ‘Have a Heart for Mother Earth’ Valentine’s Day Fundraiser Party: Tickets are available online until February 12 or at the door on Valentine’s Day.

Purchase tickets online at http://brokepipelinewatch.ca using Paypal. (# of tickets X $20.00) and enter:
– Your name
– # Tickets purchased
– Your phone number
– Your email address




No Paypal or credit card? Make arrangements to reserve tickets by contacting: Ann – miatannie@gmail.com. Your tickets will be available in an envelope with your name on it at the door any time after 6:00pm. Dinner is served between 6:00 and 9:00 pm only.