Supreme Court rejects Burnaby’s injunction to stop Kinder Morgan

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A crowd gathers on top of Burnaby Mountain to rally against Kinder Morgan’s pipeline expansion project. Photo by Carlos Tello

Under a cloudy, grey sky on top of Burnaby Mountain, a crowd of around 25 rolled out a banner that read “Stop Kinder Morgan!” in bold red letters and prepared to hear the news from the B.C. Supreme Court.

They had gathered from all around Metro Vancouver to hear Justice Brenda Brown’s decision on whether to grant the City of Burnaby an injunction to stop Kinder Morgan’s controversial Trans Mountain pipeline expansion project.

There were big stakes for those gathered at the rally, organized by BROKE (Burnaby Residents Opposing Kinder Morgan Expansion), a citizen’s group started by homeowners after Kinder Morgan’s 2007 bitumen spill in Burnaby.

The expansion, if approved, will allow Kinder Morgan to twin the existing pipeline and increase the flow of diluted bitumen from Edmonton to Burnaby from the current 300,000 barrels to 890,000 barrels a day.

The $5.8 billion project is expected to create 90 new jobs and transport Canadian bitumen to markets in Asia and the U.S.

As Justice Brown announced her decision, the crowd gathered around Alan Dutton, a BROKE member who was on the phone with the group’s lawyer. Looks of dismay overcame the crowd as Dutton explained that Justice Brown has rejected the injunction.

Karl Perrin. Photo by Carlos Tello

“This is disturbing,” said BROKE spokesperson Karl Perrin. “This means City bylaws don’t really have much force, if any. What’s the point of even having laws if we can’t enforce them?”

The injunction is part of the City of Burnaby’s legal strategy to stop Kinder Morgan’s Trans Mountain exploratory pipeline work in Burnaby Mountain, a protected conservation area.

The city of Burnaby claims that Kinder Morgan broke a local bylaw by cutting trees in the mountain, while Kinder Morgan argues they have the right to do the work based on the National Energy Board Act. Kinder Morgan changed its proposed new pipeline route to go through Burnaby Mountain in an attempt to disrupt fewer residential areas.

For SFU professor Stephen Collis, Justice Brown’s decision suggests that local interests were being dismissed in favour of big oil company interests.

Stephen Collis. Photo by Carlos Tello

“We’re seeing a situation where government at the highest level is overturning a local decision for a foreign-owned company,” he said. “That’s terrible. Is that the world where we want to live in, where we are at the mercy of these large global forces that are trying to develop massive oil projects for the global market?”

A frustrating decision

Burnaby’s mayor, Derek Corrigan, said he shares the demonstrators’ disappointment.

“I think all of us are frustrated that the court process did not assist us in regard to obtaining an interim injunction to stop the work Kinder Morgan is doing in part of the mountain conservation area,” he told the Vancouver Observer in a telephone interview.

Corrigan said a decision has not yet been made on whether to appeal Justice Brown’s decision. The reasons behind the decision are expected to be made public sometime next week.

But even if the City of Burnaby decides not to appeal, that shouldn’t be taken as an acknowledgement of defeat, warned Corrigan.

“Obviously this is one step along a path,” he said.

The City of Burnaby intends to continue its opposition to Kinder Morgan’s pipeline expansion project at the National Energy Board (NEB), Corrigan explained.

The NEB is currently evaluating a motion filed by Kinder Morgan asking them to forbid the city from obstructing its crew. A decision is expected soon.

According to the Canadian Press, Kinder Morgan has decided not to resume work in Burnaby Mountain until the NEB announces its decision. The Vancouver Observer contacted Kinder Morgan for comment, but the company did not respond prior to publication.

What next?

After learning of the court’s decision and its implications, the Burnaby Mountain demonstrators quickly shook their disappointment aside.

“If Kinder Morgan decides to come [back] here, we’ll have people watching them,” said Perrin. “We will do what we can to slow the down the process.”

A drone to monitor Burnaby Mountain. Photo by Carlos Tello

Among the measures they’re planning to take are setting up civil patrols to ensure Kinder Morgan doesn’t return to the mountain to cut any more trees, and monitoring the area with drones.

Continue strengthening ties with the Tsleil-Waututh Nation, who have opposed the expansion due to potential impact on their traditional territory, is another measure. Some even suggested becoming human barriers to blockade access to Burnaby Mountain in case Kinder Morgan’s workers return.

According to BROKE’s lawyer, Neil Chanter, citizens have a legal right to engage in such activities, granted that they don’t break any law.

“If they want to gather in the park and use it for whatever lawful purpose they choose, they can do that,” he said in a telephone interview. “I will be informing my group that they are permitted to use the park in any lawful way they choose, as they always have been able to, until they’re told otherwise.”

Professor Collis believes it is important to keep on pursuing legal ways to stop the pipeline project. But it is also vital that area residents continue voicing their dissent, he says. For him, citizen activism has the power to stop Kinder Morgan.

“If we can’t get a decision out of an actual court, then it’s going to be public pressure and citizen activism,” said Collis. “We need lots of people to come out here and say, ‘we’re not letting this happen. We’re just not going to do it.’”

With files from Mychaylo Prystupa