Protestors and police prepare for showdown on Burnaby Mountain

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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