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.

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.