Kinder Morgan drops suit against protestors

From: Alan Dutton, Burnaby Residents Opposing Kinder Morgan
To: Burnaby Now
Date: February 5, 2015
Subject: Re: Kinder Morgan drops suit against protestorsDear Editor:Based on a Trans Mountain news release of January 30, 2015, the Burnaby Now reported that the subsidiary of the Texas-based Kinder Morgan oil company is “dropping its multimillion-dollar civil suit against all five Burnaby Mountain protestors and is willing to pay their costs.”However, Trans Mountain’’s news release must be read with a good deal of caution. While Trans Mountain promises to pay the costs of defendants, the company does not specify what costs will be compensated. Court regulations require plaintiffs that unilaterally discontinue a civil suit to cover only a small fraction of the court costs of defendants as punishment. In the case of Trans Mountain’’s civil suit, costs will likely amount to just few thousand dollars. The small amount of compensation is nowhere close to the tens of thousands in legal fees required for defense against the civil suit, nor does it cover damages and lost time to defendants.

In addition, Trans Mountain’’s promise to drop its civil suit offers little finality. Trans Mountain issued a unilateral Notice of Discontinuance not a Consent Dismissal Order. A Consent Dismissal guarantees that the plaintiff (Trans Mountain) cannot sue the five defendants again on the same facts. A simple discontinuance allows the Trans Mountain to bring another lawsuit against any or all of the defendants.

Two of the five defendants already had accepted a discontinuance without costs in mid-December. Two of the three remaining defendants had rejected Trans Mountains’ offer to discontinue without costs and without finality. Those two wanted finality and costs and were fighting for a Consent Dismissal.

As the fifth and final defendant, I rejected both the offer of discontinuance and a consent dismissal order. I took Trans Mountain to court in January to argue for a more comprehensive dismissal with costs and damages on the basis that Trans Mountain’’s civil suit was a SLAPP suit. SLAPP stands for strategic litigation against public participation, and such suits are used by large corporations to silence their critics and prevent them from protesting, thus denying fundamental democratic rights. The Judge decided not to strike the claims on the basis of court rules, which require an extremely high threshold to be met on application to strike at this preliminary stage.

I was on the verge of launching an appeal when Trans Mountain unilaterally issued a Notice of Discontinuance that protected the company from further court action against the civil suit. Meanwhile, all the allegations of conspiracy, assault, etc., and damage to my reputation and wasted time are left hanging.

What have we learned from Kinder Morgan’’s lawsuit and promises? A very intelligent woman named Sue explained to me via social media that the whole point of a SLAPP suit is to bring a lawsuit to make the little guy spend lots of time and emotional energy and money, and then drop it before it can come before a court of law where, in this case, the transnational would have to prove their allegations of conspiracy, etc. The transnational drops the SLAPP suit before it can go to court so that the threat of reviving the lawsuit continues to hang over the little guy. The transnational has to pay a portion of their funds to keep the suit “alive,” but it’s a small investment. As a portion of the little guy’s funds, however, it is huge. This is why anti-SLAPP suit legislation is so important in a democratic country like Canada. It’s the only way the big guys can be penalized for using the law in this way to silence their critics and stop protests. Thank you Sue!

This is why I refuse to settle, stay quiet or stop legal action and why I am fighting for anti-SLAPP legislation in B.C.

Court rejects ForestEthics Advocacy’s pipeline legal challenge

by Jennifer Moreau

A constitutional challenge from ForestEthics Advocacy involving three Burnaby residents and the National Energy Board has hit a wall at the Federal Court of Appeal, but the group plans to take the case to the next level.

The environmental organization is claiming the NEB is infringing on people’s Charter rights by restricting public participation in the Kinder Morgan pipeline hearing and refusing to hear concerns related to climate change and oil-sands development. On Jan. 23, Justice Marc Nadon of the Federal Court of Appeal rejected the case.

Ruth Walmsley

Burnaby resident Ruth Walmsley is one of eight people named as applicants in a legal case challenging the NEB’s criteria for participation in pipeline hearings.   Photograph By Jennifer Moreau

“Honestly, I was not terribly surprised to hear that news,” said Ruth Walmsley, one of the Burnaby residents named as an applicant in the case. “I was disappointed because I was hoping that the case would have an opportunity to be heard at that level, but we realized at the beginning that we may need to take it to a higher court.”

ForestEthics Advocacy first took the legal challenge to the NEB last spring, which rejected the group’s argument, stating freedom of speech does not necessarily mean anyone should be included in the pipeline hearing. The applicants then went to the Federal Court of Appeal in August, but the case was dismissed on Jan. 23.

Sven Biggs, a spokesperson with ForestEthics Advocacy was surprised by the court’s rejection.

“I thought we had a really strong case, and it deserved the court’s consideration,” he said.

Now the group is plans to take the case to the Supreme Court of Canada. Most of the applicants have agreed to take the case further, but Biggs said there are still some who have not yet made up their minds about what to do next.

“We’re not going to give up,” said David Martin, the group’s lawyer. “We believe the legislation is unconstitutional. It violates freedom of expression and it precludes the public from properly participating in the National Energy Board hearings.”

Martin explained that the case is about challenging the NEB’s new procedures, brought in after the Conservative government changed the NEB Act, narrowing the scope of participants in pipeline hearings to those who are “directly affected” by the project.

For example, if the pipeline runs through someone’s backyard, that person would be considered directly affected, but the larger community as a whole is being excluded, Martin explained.

“These are complex legal formulations, but they boil down to that,” he said. “God forbid we should hear from the community.”

Besides ForestEthics Advocacy, there are eight people listed as applicants in the case. John Clarke, another Burnaby resident involved in the case, lives close to the Burnaby Mountain tank farm. He applied as an intervenor in the NEB hearing but was given commenter status, meaning he can only write a letter expressing his stance on the proposed expansion. Walmsley applied to participate as an intervenor in the NEB hearing but was rejected entirely. SFU professor Lynne Quarmby, who recently moved to Burnaby, is also one of the applicants in the case.

In regards to the original motion from ForestEthics Advocacy, NEB spokesperson, Sarah Kiley, explained that the board did not find the applicants had established that the NEB Act or the board itself were violating the Charter.

“That’s why they decided to deny this motion,” Kiley said. “The board made a comment I thought was interesting, … ‘the substantial interference with freedom of expression does not follow simply because the applicants have been denied their preferred means of expression.'”

Kiley also pointed out that the NEB doesn’t create legislation; politicians and parliamentarians are responsible for the NEB Act.

Kinder Morgan drops lawsuit against protesters

Kinder Morgan is dropping its lawsuit against several people protesting its recent pipeline study work on Burnaby Mountain, but at least one defendant plans to continue his fight.

The company is proposing to almost triple capacity of its Trans Mountain pipeline between Edmonton and Burnaby. In November and December it ran into opposition from protesters as it tried to drill into Burnaby Mountain as part of geotechnical study work to determine if the pipeline could be routed through it in a tunnel.

In response, the company filed a civil lawsuit against five named defendants—Adam Gold, Mia Nissen, Stephen Collis, Lynne Quarmby, and Alan Dutton— seeking damages it estimated at more than $5 million per month of delay.

The work went ahead after the company succeeded in getting court injunctions preventing protesters from getting in the way of its crews.

In December, the company said in a press release Friday, Trans Mountain offered to discontinue the lawsuit. “There was no financial incentive offered other than the commitment that Trans Mountain wouldn’’t seek court costs. Two of the five defendants agreed.”

“In the interest of conciliation, providing certainty for all involved,” the company said, it has filed a unilateral discontinuance which does not require agreement from the defendants.

“It does mean that Trans Mountain could be responsible for court costs, which the company is willing to pay, in order to demonstrate, without any doubt that it has no intention of pursuing civil action in this case.”

The move is delivering on a promise made by Kinder Morgan Canada president Ian Anderson not to pursue the lawsuit, the release said.

“Even though damages were suffered by the company as a result of the protests that occurred on Burnaby Mountain, Trans Mountain has maintained that it will not pursue compensation for these damages.”

While relieved, defendant Alan Dutton has no plans to go quietly.

A few weeks ago he went to B.C. Supreme Court in an attempt to have the lawsuit dismissed but was unsuccessful.

“We were expecting them to settle and they’ve done so,” Dutton said Friday. “There’s still some outstanding issues, and we have to explore them with my legal team but in my view the issue is not settled.”

Dutton said his lawyers will be looking into the matter of recovering his legal costs and being compensated for damage to his reputation and loss of his time dealing with the matter.

“We have tens of thousands of dollars spent defending ourselves in court and Kinder Morgan is just not going to get away with this kind of action,” he said.

“I’m just happy, though, that Kinder Morgan realizes the publicity nightmare that they’ve caused for themselves. I’m glad they’ve taken this course of action, and perhaps it’ll slow them down in the next phase as they approach their application to the [National Energy Board].”

Dutton said he’ll continue his campaign seeking provincial legislation to prevent SLAPP (strategic lawsuit against public participation) lawsuits, those designed to intimidate opposition into silence, which he claims this suit was intended to be.

For now, the end of the lawsuit means he can breathe easier.

“I’m actually quite happy but there’s still a long way to go yet.”

wchow@burnabynewsleader.com (Editor’s note: This article was originally published by the Burnaby News Leader, which ceased operation on October 1, 2015.

SFU prof takes on science policy critic role with Greens

by Jennifer Moreau

SFU professor Lynne Quarmby is taking on a science policy critic role with the federal Greens, even though she hasn’t run in an election yet.

Quarmby’s will evaluate government legislation and policy and whether it’s based on scientific evidence.

“I’m excited about it. I feel it’s a tremendous responsibility, but it’s also a great opportunity to bring my experience in science into the political arena,” Quarmby said. “(The Conservatives) have showed complete disregard for science, in particular, environmental science.”

Quarmby, who recently moved to Burnaby, is head of SFU’s molecular biology and biochemistry department and is running for the Greens in the new federal riding of Burnaby North-Seymour.

Quarmby made headlines as one of the five protesters named in a multi-million-dollar Kinder Morgan suit seeking an injunction against anti-pipeline protesters on Burnaby Mountain.

Green leader Elizabeth May is one of two Green party members who hold seats in Ottawa, but the party still appoints people to its shadow cabinet. All of the shadow cabinet members plan to run in the next federal election.

Burnaby wants details on Kinder Morgan advertising

City submits motion to NEB for info on costs of ads

by Jennifer Moreau

The City of Burnaby is taking aim at Kinder Morgan’s pro-pipeline advertising campaign and questioning whether consumers will end up paying for the publicity.

The city filed a motion Thursday with the National Energy Board asking for several things, including details on how Kinder Morgan is funding its ad campaign, and whether the money is coming from extra “firm service” shipping fees approved by the National Energy Board.

“It’s a bad policy, regardless of what aspect of the project proposal the fees are paying for. But if these federal government-sanctioned shipping fees are funding Kinder Morgan’s current multi-million-dollar ad campaign, it would be particularly inappropriate,” Burnaby Mayor Derek Corrigan said in a media release. “We want to know whether or not some of these ‘‘firm service fees’’ are being used to pay for the cost of Kinder Morgan’s advertising that is clearly nothing more than an attempt to improve their tainted corporate image.”

A couple years ago, the National Energy Board gave Kinder Morgan permission to charge some of its Westridge Marine Terminal customers firm service fees averaging an extra $1.45 per barrel of oil. Those fees total roughly $29 million annually, according to Ian Anderson, president of Kinder Morgan Canada. The money is used to offset the pipeline expansion’s development costs, so if the project is rejected, there is no risk to investors.

Robyn Allan, former CEO of ICBC, cried foul and suggested those costs would ultimately be passed onto consumers. Anderson refuted her argument in a letter to the Burnaby NOW last July, saying the oil will sell at a higher prices overseas.

Allan maintains that will drive up crude costs in Canada, and refineries will pass those costs onto consumers.

The city is asking the NEB to step in and issue orders to obtain Kinder Morgan’s projected advertising costs and details on how they are funded, as well as an order to make sure Kinder Morgan’s firm service fees aren’t used for advertising costs. The city also wants the NEB to order Kinder Morgan to inform the public on the extent of the pipeline expansion and its potential risks and impacts.

In the motion, the city’s lawyer, Greg McDade, notes that some of the advertising has appeared in Burnaby newspapers and had been targeting Burnaby residents.

Scott Stoness, a vice-president with Kinder Morgan Canada, said the company’s advertising campaign is part of Kinder Morgan’s efforts to engage with and provide information to as many British Columbians as possible.

“The information highlights Trans Mountain’s company history, culture, and commitment to safety,” he said in an emailed statement to the NOW. “Consumers are not paying for our advertising, as (the) price of gasoline in the Lower Mainland is mostly dependent on world market prices. Prices paid by local consumers at the pumps are driven by world oil prices, not Alberta oil prices, so any increase in price per-barrel as a result of Alberta producers accessing world markets due to expanded pipelines does not mean higher gasoline prices for locals.”

Stoness explained that many factors affect gas prices, including taxes, refining costs, seasonal fluctuations and general rules of supply and demand.

“The cost of crude oil makes up less than 50 per cent of the ultimate price you pay at the pump,” he said.

When Mother Earth Has Nothing Left To Give, We Must Slow Down

When Kinder Morgan’s Trans Mountain pipeline expansion project review began in April 2014, it was on a fast track to approval. The 2012 changes to the National Energy Board Act established a truncated process that would have seen a decision on this massive project by fall 2015.

However, the project has since hit multiple snags, including a delay in any approval until spring 2016, unprecedented protests relating to Kinder Morgan’s drilling activities on Burnaby Mountain, and increasing community and First Nations opposition.

One of the drivers of this frustration is the NEB’s continued refusal to hold public hearings in the part of the country that will arguably be most directly affected by the proposal: Burnaby, the pipeline terminus and the point at which the bitumen would be loaded onto tankers to travel through the Salish Sea.

Thus, in 2014, First Nations and indigenous groups that wanted to give oral evidence to the NEB panel about their traditions, their worries, and their way of life were required to attend at other locations in the province.

In late October, representatives of four United States Tribes — the Lummi, Suquamish, Swinomish, and Tulalip Tribes — travelled up the Fraser Valley to Chilliwack to share their history, their concerns, and their worries about the Kinder Morgan expansion with the NEB. This is one of the lesser-told stories of 2014.

The four tribes have lived on the coast and relied on the Salish Sea for their way of life since time immemorial. Like the Tsleil-Waututh First Nation — whose lands and waters are in and around the tanker terminal in Burnaby — they are all Coast Salish nations. While most people recognize the Canada-U.S. border as the political separation between the two countries, for the Coast Salish, that border is simply a line on a piece of paper. Better than most, they understand that the potential environmental and cultural harms Kinder Morgan’s project could inflict won’t stop at the border.

Along with their representatives from Earthjustice — Ecojustice’s sister organization in the United States — these tribes are taking a strong stand with Canadian First Nations to oppose this pipeline. The importance of place is such that these tribes are dedicating time, resources, hearts, and minds to opposing Kinder Morgan’s proposal.

The reason is simple: The way they see it, Mother Earth has nothing left to give.

One by one, indigenous elders, leaders, youth, and fishermen stood before the NEB panel. They spoke of their connection with the sea and its resources and how any expansion of tanker traffic would further harm their lives, their economies, the ongoing practice of traditional ways of life, and the tribes’ continual efforts to protect the health of the Salish Sea. They expressed their deep concerns about increased threats to the Salish Sea, such as the risk of a catastrophic accident and oil disaster — something that seems inevitable with the large-scale pipeline expansion.

The testimonies shared by these Tribes and other Coast Salish Nations are a potent reminder that deep knowledge and connection to land and sea is something that we all need to develop.

From the fur trade, to forestry, to oil and gas development, Canada’s industries have a long history of drawing down resources and moving on — showing little concern for the finite capacity of the natural world or respect for connection to place. But that pattern cannot continue indefinitely. Tar sands extraction is more extreme than previous resource grabs. Not only are we running out of oil to extract and forests to log, the atmosphere is hitting the point where it can no longer absorb our carbon emissions without grave climate impacts.

We must learn from people who have a deep connection to place and accept that the earth has limits that must be respected. We must recognize that the harmful impacts from this pipeline will not respect international borders.

Communities like the U.S. Tribes and Canadian First Nations that have been here since time immemorial remind us that we who live here now have a duty to protect our home. Unless we do, we will continue down the path laid out by multinational energy companies, where nature and the opposition of local communities are seen as mere logistical challenges to be overcome by re-routing pipelines through mountains and writing fat cheques. And eventually we will still have to come to terms with the reality that Mother Nature has no more to give.

This piece was written by Ecojustice staff lawyer Karen Campbell. Ecojustice is one of Canada’s leading charities using the law to protect and restore Canada’s environment. Learn more at ecojustice.ca.

 

http://newsalberta.ca/2015/01/23/when-mother-earth-has-nothing-left-to-give-we-must-slow-down/

City of Burnaby seeking more answers on pipeline

City asks 640 questions in second round of information requests in Kinder Morgan pipeline hearing

by Jennifer Moreau

The City of Burnaby wants more answers on Kinder Morgan’s pipeline plan, but the mayor isn’t getting his hopes up.

Last Thursday, the city filed 200 pages – with 640 questions – in the second round of information requests for the National Energy Board hearing on the plan to expand the Trans Mountain pipeline.

“Based on the disrespect for our questions that Kinder Morgan has demonstrated to date, we are not optimistic about getting meaningful responses,” Mayor Derek Corrigan stated in a media release. “Nevertheless, because it is the only option available to us, we will again try to get answers within the framework of the flawed National Energy Board process through which this proposal is being reviewed.”

The NEB used to allow intervenors to orally cross-examine companies in pipeline hearings, but those questions now have to be put in writing, hence the information requests. The city’s latest questions probe the company’s emergency response plans and the project’s impact on health, safety and the environment.

According to the mayor, 62 per cent of the city’s first list of questions, filed in the initial round of information requests in May last year, went unanswered or only partially answered. The city, along with other intervenors, complained about the non-responses.

“So while this should simply be an opportunity to ask new questions – which we are doing- it has, disappointingly, also become a second attempt to get our first questions answered,” Corrigan said.

The City of Burnaby’s first question relates to Kinder Morgan’s emergency management plan, as the city wants an unredacted copy. On Friday, the NEB released a decision allowing Kinder Morgan to keep parts of overall emergency response program redacted. (See related story here.)

When the NOW contacted Kinder Morgan with questions, the company sent an emailed statement from Scott Stoness, one of Kinder Morgan Canada’s vice-president.

“Jan. 15 was the deadline for information requests as part of the regulatory review, and we will be reviewing all questions, including the (information requests) filed by the City of Burnaby. The questions cover a variety of subjects including safety, security, and emergency and spill response, and many of the questions are very detailed and involved. We welcome the questions from the City of Burnaby. Kinder Morgan is committed to a transparent and full process as has been defined by the NEB. Trans Mountain will answer all questions that fall within the scope of (the) NEB hearing.”

Meanwhile, the City of Vancouver has filed close to 600 questions for Kinder Morgan with similar complaints, that more than one-quarter of its questions from the first round weren’t answered. The provincial government also filed more than 110 pages of questions. Kinder Morgan has until Feb. 18 to respond.

Province needs more details on Kinder Morgan’s emergency plan

by Jennifer Moreau

The National Energy Board is allowing Kinder Morgan to keep parts of its emergency management plan for the Trans Mountain pipeline system redacted for commercial, security and privacy reasons, despite the provincial government’s insistence on more details.

The provincial government asked for the missing information, along with an oil spill response plan, in a Dec. 5 motion filed with the NEB.

“The province has found the redactions made by Trans Mountain to be excessive, unjustified and prohibitive. The redactions thwart the province’s examination of the EMP (emergency management program) documents, and preclude a thorough understanding of Trans Mountain’s EMP by the board and all intervenors,” the government’s motion reads.

Some of the missing information includes people’s names and phones numbers, bomb threat checklists and valve locations. A section on the Burnaby tank farm is missing information on site drainage and maps for the terminal and the evacuation zone.

But in a decision released last Thursday, the NEB sided with Kinder Morgan.

“In this instance, the board is satisfied that sufficient information has been filed from the existing EMP documents to meet the board’s requirements at this stage in the process,” the response reads. The board went on to explain that the province will be privy to some of the missing documents as Kinder Morgan consults “implicated parties” to update the plans for the proposed pipeline expansion.

Pending NEB approval, Kinder Morgan plans to twin the Trans Mountain pipeline, which would nearly triple the line’s capacity from 300,000 barrels per day to 890,000, while increasing tanker traffic nearly seven fold.

As for the oil spill response plan, the NEB cited Kinder Morgan’s line – that it can’t file what it doesn’t have – because Kinder Morgan is waiting for information from Western Canada Marine Response Corporation, the company in charge of cleaning up oil spills on water.

Several municipalities wrote to the NEB in support of the province’s request for more information, including Burnaby, Vancouver, Surrey, Langley, Abbotsford, North Vancouver and West Vancouver, as well as First Nations bands and environmental groups.

Kinder Morgan filed most of its emergency management plan with the NEB last October, which means the documents are publicly available through the board’s website. Kinder Morgan initially wanted to keep the documents secret for proprietary reasons, which the NEB sometimes allows. In this case, the board ruled that public interest outweighed Kinder Morgan’s request to keep the plan confidential.

Burnaby Mountain ‘warrior’ stands up for us all

Author
Betty Krawczyk

Dear Editor:

Burnaby Mountain Warrior? It only takes one. And Alan Dutton, a retired professor, certainly takes that title in my opinion. He is the only one with the guts and the ability to stand up to what has been a conspiracy between the courts of this province, the resource extraction corporations and both provincial and federal governments. What do I mean by conspiracy?

Because all three of the above conspire to facilitate the use of injunctions to impose the intellectually conniving perceived rights of corporations over the natural rights of the earth and Her inhabitants. When citizens try to stop an obvious harm to land, waterways and habitat for all living things, the corporations turn to the courts. They know the B.C. courts are their friends. Most judges in B.C. were corporate lawyers before becoming judges. They are used to fighting for the artificially perceived rights of death dealing corporations rather than the natural rights of living things to clean water, food, and air to breathe.

But what are these injunctions? Most people know that in some way injunctions make people stop protesting a contested area like Burnaby Mountain, and some even know these injunctions are precipitated by something called SLAPP suits. What is a SLAPP suit? When I heard the actual legal title I was astonished. SLAPP stands for Strategic Lawsuit against Public Participation. How anti-democratic! And blatantly anti-public! And anti-everything except the rights of courts, governments and the corporations they serve. However, with a copy of a SLAPP suit in hand to show they have civilly sued a protester, the corporation can take this back to the court and ask for an injunction (or even before the suit is filed). The judge will most certainly give the corporation the injunction requested (they refuse so rarely it isn’t even worth mentioning) et voila!

Now anybody who steps up to try to block any bit of the corporation’s right to do whatever they chose to do to an area will now be breaking a judge’s order.

The court seems to be taking a slightly different tack with Burnaby Mountain protesters than they did with me in the logging protests; instead of the humiliating demand for an apology to the court that I refused, the protesters are agreeing to some sort of settling out of court. Except for Mr. Allan Dutton, who is refusing to settle and is challenging the right of the courts to give out injunctions instead of using the Canadian Criminal Code to deal with protesters.

Okay, so how would that fix things if the Criminal Code was used instead? The Criminal Code has instructions for just about any crime or misdemeanour one can think of. Blocking a road is against the law. So is refusing to move when a police officer commands it. So the police would simply arrest whoever was breaking the law. And then in court a protester could have an actual trial where the contest would be between the protester and the corporation instead of between the protester and the judge for breaking the judge’s order. That’s why the corporations so love injunctions.

The protester can’t argue in court his or her reasons for trying to stop a destruction of the earth when one is arrested under an injunction. There is no defence for breaking a judge’s order. The question just becomes one of if the protester knew about the injunction and if he or she broke the injunction by refusing to move. That’s it. That is what the Strategic Lawsuits Against Public Participation (SLAPP suits) culminate in, injunctions and humiliating retreats for the protesters.

Except occasionally, for whatever reason, a protester will refuse to retreat. Like Alan Dutton.

This resounds among the populace. It’s heartwarming. It’s hopeful. Courage is inspiring and it’s also contagious.

Alan Dutton, I understand, is to be back in the courtroom Jan. 19. I wish I could be there. Those of you who can, will you please attend and bear witness? And report the results? A warrior is going to be on the stand.

Betty Krawczyk, by email

Protester fails in court challenge to Kinder Morgan legal attack: Vows to fight back

Author
GENE MCGUCKIN

A failed two-day court challenge to an anti-democratic, corporate legal attack is the latest chapter in the 2014 Battle of Burnaby Mountain over the Kinder Morgan tar sands pipeline expansion project.

The B.C. Supreme Court ruled January 14 that stifling Alan Dutton’s right to protest was not the primary purpose of a multi-million-dollar civil suit and, therefore, his application for a summary dismissal of the case was denied. In an unexpected additional blow, he was ordered to pay the company’s costs for the action.

As revealed in an wide-ranging interview with the Vancouver Sun, the setback has left Dutton unbowed.

A retired academic and active member of Burnaby Residents Opposing Kinder Morgan (BROKE), Dutton has indeed been an active protester in the anti-pipeline battle. His challenge sought judicial recognition that he became a victim of strategic litigation against public participation (SLAPP) when he and four other defendants were sued October 30 by KM.

With the support of fellow BROKE members Dutton filed his mid-December application for a summary judgment to include dismissal of Kinder Morgan’s damage claims and an “Order for special costs payable by the Plaintiff to the Defendant.”

In its suit, the energy giant accuses the defendants of conspiracy to commit illegal acts of trespass, nuisance, assault, intimidation and intentional interference with contractual relations. Their acts, the claim says, resulted in “unlawful interference” with “field studies” required by the National Energy Board’s (NEB) review of the expansion project.

A related Kinder Morgan court document projects that each month of delay would cost the company $5,643,000 in expenses, as well as $88 million in lost revenues.

Dutton vows to appeal the court’s ruling, if there are grounds to do so. “I never committed any of the alleged conspiracy, assault, trespass, etc.,” he told this writer. “The charges against me were never proved and don’t have to be under the rules the court followed. Those rules disadvantage and silence defendants in the face of huge lawsuits by large corporations.”

Just before Christmas the energy transnational offered to “discontinue” the suit if defendants agreed not to claim costs. That deal was taken by the other four defendants, whose legal expenses had been paid by an enthusiastic public response to an on-line crowdfunding appeal.

Now, it is not so clear the deal actually settled the suit. A lawyer to two of those defendants barged into the Dutton hearing and was finally permitted to address the court. He expressed his clients’ unease that a discontinuance of the lawsuit was not as final as a dismissal and left them open to further action.

Dutton declined Kinder Morgan’s deal in order to fight the suppression of free speech and freedom of assembly, which he sees as the SLAPP suit’s real goal.

“The issue here is our democracy and the fundamental right to protest,” Dutton told the Burnaby NOW. “It’s to show people we can fight big multinational corporations, and we can be successful.”

On the first morning of Dutton’s application hearing, B.C. Civil Liberties Association Executive Director Josh Paterson, held a press conference with Dutton’s lawyer Neil Chantler. Paterson told reporters that Dutton “is basically making the argument that the reason for which this lawsuit is brought is actually improper and was to shut down people’s lawful and democratic expression.” The BCCLA also put out an “advisory” on the case.

Hoping his action would discourage future SLAPP suits and help bring anti-SLAPP legislation back to B.C., Dutton accepted that he could face growing legal expenses. Crowd-funding and other donations had covered most of his legal costs before this week’s hearing. But this challenge and the court’s unexpected turn-about on awarding costs have added thousands more in legal expenses.*

Kinder Morgan ‘s suit came after a two-and-a-half year battle against its plan to “twin” a 60-year-old pipeline not designed for, but now carrying, tar sands diluted bitumen through Burnaby to a supertanker marine terminal on the municipality’s northern border.

Kinder Morgan ‘s latest revision to the intended route for the “twinned” pipeline has it tunneling under Burnaby Mountain, home of SFU and of a large municipal conservation area.

Kinder Morgan ‘s expansion project would triple the bitumen being piped through suburban Burnaby to nearly 900,000 barrels per day. It would also triple — to five million barrels — the storage capacity of a tank farm on the side of Burnaby Mountain (uphill from residential neighbourhoods, schools, parks, etc.). And it would increase seven-fold, to 400 loads a year, the super-tanker traffic under two bridges across the narrow, busy Burrard Inlet, which is flanked by Vancouver and four other cities in addition to Burnaby.

Opposition to the project has centred on concerns about climate change, as well as about spills on land (already happened) and water, toxic fumes from the marine terminal and tank farm, fire and leaks from the latter (with no response plan in place), and earthquakes affecting the tunneled pipeline section.

Burnaby-Douglas NDP MP Kennedy Stewart has been a steady, engaged and persuasive voice against the Kinder Morgan expansion, while Burnaby North Liberal MLA Richard T. Lee has been living on another planet.
Burnaby Mayor Derrick Corrigan and his entire city council have held and attended several public meetings explaining their objections in detail.

In addition, the city fought several losing court battles to stop Kinder Morgan work on Burnaby Mountain. Those activities resulted in a September opinion poll that revealed an astonishing 93 per cent of citizens were aware of the Kinder Morgan expansion project and 68 per cent of those were opposed. Affirming this result was Corrigan’s November 15 re-election to a fifth term with 68.5 per cent of the vote and a three-peat of his party’s sweep of council seats.

BROKE, through holding community meetings and rallies and through its website, has worked diligently to educate and mobilize the community against the project since it announcement in 2012.

This past summer and fall, another small group calling themselves “caretakers” came together on the mountain to provide vigilant patrols of areas where Kinder Morgan crews were expected to work. As the fall unfolded, another layer of “land defenders” formed around the “caretaker” nucleus.

In late October, some protestors came into confrontation with a crew of contractors hired by Kinder Morgan to do work at several sites on and around Burnaby Mountain. This led with startling rapidity to the lawsuit and an application to B.C. Supreme Court for an injunction barring protesters from several areas on and around the mountain.

That injunction, which the B.C. Supreme Court did grant, gave birth to a pair of 24/7 work camps ringed by police. It also drew hundreds of protesters to the mountain day after day. Between November 19 and 27, over 100 people “crossed the line” into no-go zones ordered by the court and were arrested, only to have their contempt-of-court charges thrown out when Kinder Morgan revealed it had given the court the wrong GPS coordinates to designate the no-go zones.

Meanwhile, various other constitutional and procedural challenges to the Kinder Morgan project and to the NEB review process of it have been launched by the City of Vancouver, by the Tsleil-Waututh Nation, by a citizens group and by Robyn Allan, an economist and former president and CEO of the Insurance Corporation of BC who has become a formidable anti-pipeline crusader.

Dutton pledges to continuing the fight and is still committed to new anti-SLAPP-suit laws, “a fight both the BCCLA and West Coast Environmental Law have indicated they would support,” he said.

Gene McGuckin is a resident of Burnaby who worked for 29 years in a Burnaby paper recycling mill. He is a member or BROKE and of the Vancouver Ecosocialist Group.

*In an email to this writer Dutton emphasized that a new fundraising effort is underway, again primarily through crowd-funding.