Burnaby Residents Opposing Kinder Morgan Expansion

BROKE is a group of local residents whose mission is:
• To prevent the expansion of the Kinder Morgan Pipeline, and related infrastructure in Burnaby, and related supertanker traffic, through education, advocacy and partnership;
• To oppose the degradation of our city, our neighbourhoods, and the natural habitat, that an oil pipeline and related industrialization of Burrard Inlet would bring;
• To raise awareness of Burnaby residents about how the proposed Kinder Morgan pipeline expansion and increased tanker traffic would impact our community and local environment;
• To promote a clean and sustainable energy future.

Pipeline too close to home for co-op

Lil Cameron had the feeling something was up when she saw surveyors out on Government Street on Wednesday.

That was followed on Thursday morning in the same area by a crew using unmarked vehicles. They were spray painting orange blotches every few feet on the ivy covering the concrete retaining wall that borders the Halston Hills Housing Co-operative where she lives.

Cameron approached City of Burnaby workers who were working on a fire hydrant nearby and asked what was going on at the wall. “They said, ‘It’s not us, it’s Kinder Morgan.’ “

Read more…

Kinder Morgan defends spill plan secrecy

Kinder Morgan Canada will provide details of its emergency response plans directly to governments and first responders, but on the condition the information be kept private, said company president Ian Anderson.

The National Energy Board (NEB) ruled that the company is not required to make the emergency plan for its Trans Mountain pipeline public as part of the review process for its expansion proposal.

The company has been roundly criticized by opponents of the project, including the City of Burnaby, for not releasing the plans already.

Anderson said in a conference call with media recently that the information will be provided outside the NEB process to those parties needing it. Those parties will also be consulted in the process to update the plan to reflect an expanded system.

“Clearly, our interest would be in dealing with municipalities and first responders to provide them the information they need in order to undertake their due diligence and their response capabilities as necessary,” Anderson said.

“And therefore they would have be, one, an affected community by our operations, two, they would have to agree to keep those plans private within their city or municipality and not post them publicly for the same reasons that we’re not posting those details publicly.”

Anderson was speaking in a conference call to announce the company has filed responses to the latest round of information requests from intervenors, 5,600 in all.

“This round, the requests that we got, we believe were more relevant than the first round and we made a lot of effort to provide complete responses to intervenors as appropriate,” he said. “Having said that, there will be some information requests that were not within the scope of the hearing and we have said as much in our responses.”

The latest round of questions brings the total of questions asked to over 16,000. If necessary, intervenors have an opportunity to appeal to the NEB to request that the company be more responsive to their inquiries, Anderson noted.

“I think what parties will find is that the responses this round are very full and very complete.”

Anderson noted that Kinder Morgan’s emergency response plans for Washington state were released publicly by that state’s department of ecology.

“That has caused a bit of confusion,” he said.

“I think I want to reinforce we in no way want to have this perceived lack of transparency around our emergency response plans as any indication of us wanting to hide anything or keep anything a secret.”

There are “very real security concerns” in making the plans public, particularly the locations of critical valves and access points.

The broader issue is a need for industry and the regulator in Canada to define “who should get what how and when and for what purpose?” Anderson explained.

Due to security issues in the U.S., the protocol around how such plans are released is already well established unlike in Canada, he said.

“Those bridges have been crossed down there more so than up here and we’re committed to ensuring it happens here as well.”

Kinder Morgan will lead an industry effort to ensure a similar protocol is set up on this side of the border “so the public can be comforted that there’s no secrets, that nothing’s being hidden but that security of the infrastructure and the public can still be maintained.”

Burnaby-Lougheed NDP MLA Jane Shin, through whose riding the pipeline runs, doesn’t see the public having much comfort so far in the NEB process itself.

The B.C. New Democrats are calling on the province to undertake its own review process in addition to the federal one underway. The pipeline “does go through our parks, our schools and our residences … I think the province has a real right to say what makes sense for us.”

Shin agrees that there are security concerns about the release of all aspects of the emergency plan, but believes those are not details the public is necessarily seeking.

Instead, it’s “the reassurance and the social licence that the plan is acceptable and is done on sound evidence and it does protect the safety and the interests of our public,” Shin said.

Kinder Morgan is proposing to almost triple capacity of the pipeline between Edmonton and Burnaby to allow for increased exports of oil sands crude to overseas markets.

On May 26, intervenors are scheduled to begin proving evidence and answer questions posed by the company. Oral arguments are scheduled for September and October. The NEB is expected to provide its recommendation to the federal government, which then will make a final decision within three months.

If the project is approved, Anderson said, construction would start in the summer of 2016 and the pipeline would be in service by September 2018.

wchow@burnabynewsleader.com

Kinder Morgan leaves half of Vancouver, Burnaby’s pipeline questions unanswered

Cities’ mayors call on National Energy Board to force pipeline company to address issues

Kinder Morgan has failed to answer almost half of the questions posed by the cities of Vancouver and Burnaby on the company’s proposed Trans Mountain pipeline expansion into B.C.
In a statement issued Friday, the City of Vancouver states that Kinder Morgan has failed to answer 291 of nearly 600 questions submitted by them through the National Energy Board (NEB), and 315 of the 688 questions submitted by Burnaby.

The more than 1200 questions submitted by the two municipalities covered a broad range of issues connected to Kinder Morgan’s 15,000-page proposal, including those covering job creation levels, climate change and emergency response plans.

“Because the city has very significant questions that focus on the hundreds of ways in which Kinder Morgan’s proposed pipeline and tank farm would threaten our city and region’s safety, security and livability, we again asked Kinder Morgan to provide answers,” Burnaby mayor Derek Corrigan said in the statement.

“Unfortunately – but not surprisingly – Kinder Morgan has again failed to show respect for our citizens’ questions by refusing to answer almost half.”

Redacted safety plan

Vancouver and Burnaby say they will continue to call on the NEB to force Kinder Morgan to address these outstanding issues.

Just last week, Kinder Morgan defended its decision to only provide a heavily redacted version of its emergency spill response plan.

The company is seeking approval from the NEB to nearly triple the capacity of the existing pipeline. The $5.4 billion project would twin the existing pipeline that runs from Edmonton to Burnaby, B.C.

The National Energy Board (NEB) ruled in favour of Kinder Morgan’s redacted plan in January.

“In this instance, the board is satisfied that sufficient information has been filed from the existing EMP [Emergency Management Plan] documents to meet the board’s requirements at this stage in the process,” the decision read.

At that time, Premier Christy Clark said Kinder Morgan hadn’t met the five conditions set out by the province, and until that happened, it wouldn’t be going ahead with the project.

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.

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

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.

Kwantlen Nation stunned to learn of Kinder Morgan drilling

Members of Kwantlen First Nation in Langley were surprised to discover that Kinder Morgan had just wrapped up one week of Burnaby-Mountain-style borehole drilling on their traditional territory.

The southwest B.C. aboriginal community, an hour’s drive from Vancouver, held a press conference to raise alarm about the drilling activity, that appeared to come without notice.

“”There was absolutely no communication whatsoever,”” said band member Brandon Gabriel on Thursday.

“It’s speaks volumes to how they do business. The fact they keep changing the markers of where they do test drilling speaks volumes to the underhanded nature of their business practice,”” he added.

The lack of communication about the drilling left many Kwantlen believing the Texas-based company is attempting to be secretive to avoid protests.

Aboriginal drummers with the Kwantlen First Nation at a Kinder Morgan protest Thursday near the Belmont Golf Course. Photo by Mychaylo Prystupa.

About 70 people, including the Kwantlen’s chief and band councillors, held the protest just metres from where the borehole drilling took place near the Belmont Golf Course.

Kinder Morgan said Thursday it dug 30-metre-deep boreholes near the Salmon River, and on Rawlison Crescent.

“The sites are both on private property, not municipal lands,” wrote a company spokesperson.

Gabriel told the crowd the band only found out about the drilling through social media and from a salmon conservation group that contacted them to let them know.

The Salmon River Enhancement Society, a non-profit water stewardship charity, noticed the Kinder Morgan drillers in recent days, and took photos. The company work crews appeared to have wrapped up on Monday.

Kinder Morgan said it received permission from the Township of Langley and the private landowners where the drilling took place. But a local resident said the people need to be informed too.

“The township did not make the citizens aware. That’s a problem,” said Shane Dyson, who attended the rally, and lives nearby.

“This will be going on in Abbotsford, Chilliwack, Hope – across the Fraser Valley where they’ll be doing their drill testing.”

“We need to have citizen oversight,” he added.

The company declined to state where else it will conduct further borehole testing, but it is widely believed to be going on throughout the Lower Fraser Valley.

The company is seeking to understand the underground geology all along the 1,000-kilometre-plus pipeline route between Edmonton and Burnaby.

Kwantlen Elder Farley Antone said his people have long been opposed to the company’s incursions into Kwantlen lands and waterways.

“”A few years ago, when we were first introduced to Kinder Morgan…I had four words for them. Over my dead body,” said the Elder, to cheers from the crowd.

Kwantlen members also expressed frustration that the National Energy Board’s recent Aboriginal oral hearing in Chillwack did not allow for any critical questioning of the company’s project.

Kinder Morgan’s lawyer infamously asked the band at that hearing if the community still eats fish.