British Columbia

Kinder Morgan Burnaby Mountain protest injunction granted

A decision is expected this morning in the legal battle between energy company Kinder Morgan and people who have been blocking crews from doing work in the Burnaby Mountain Conservation Area.

Protesters at Burnaby conservation area are told they need to go by 4 p.m. PT, Mon., Nov. 17

Protesters calling themselves The Caretakers have set up camp on Burnaby Mountain, in opposition to Kinder Morgan's plans to drill bore holes in the municipal park and conservation area to explore the feasibility of routing an oil pipeline through the mountain. (CBC)

Kinder Morgan has been granted an injunction against protesters who have been blocking crews from doing work in the Burnaby Mountain Conservation Area.​

The company said the protesters have been interfering with survey and drilling work it needs to complete for its submission to the National Energy Board on the proposed Trans Mountain pipeline expansion.

On Friday, just before 10:30 a.m. PT, a B.C. Supreme Court judge's ruling was released, giving protesters until 4 p.m. on Monday, Nov. 17, to dismantle their campsites and barricades, and to clear out of Kinder Morgan's survey work areas.

Associate Chief Justice Austin Cullen said in his judgment that one major consideration he had to balance is the interest of legitimate protest involving freedom of expression against potential unlawful activity, which would include assault and intimidation.

"There is no doubt that the plaintiff has the express lawful authority to access those parts of the land from which its representatives have been impeded and to conduct activities in respect of which its representatives have been prevented," he wrote. 

"A court could conclude that the torts of assault and intimidation are made out, given the misuse of the bullhorns, when coupled with the aggressive and threatening language, and the general and specific efforts to physically block the plaintiff’s representatives from accessing their work sites."

Cullen said the question of irreparable harm caused by granting or not granting the injunction came down in favour of Kinder Morgan, which stands to lose money through delays to its survey work.

"I am satisfied that as much as the right of public dissent must be carefully protected, what is at issue in the present case goes beyond that and engages a strong prima facie case of liability for tortious behaviour," he wrote.

Cullen also said he wasn't convinced that the company's survey work has caused or will cause irreparable harm to public land. That opinion is "bolstered by the fact that the City of Burnaby which is the occupier and ultimate custodian of the lands has not yet brought an application for a stay to suspend the balance of Trans Mountain’s investigations," he said.

Cullen said he did consider the protesters' assertion that by seeking the injunction, Kinder Morgan is carving out proprietorial rights to occupy certain parts of the park and conservation area—rights that go beyond what was granted by the National Energy Board.

But, he concluded "that what is sought by the plaintiff is not in the nature of a proprietorial right rather that it is a limited and temporary right to enforce the authorization which they have been given to complete the required investigation."

Civil suit pending

The company has also filed a multi-million dollar civil suit against some of the protesters, seeking damages from lost revenue due to the delays.

SFU English professor Stephen Collis is shown near the Burnaby Mountain protest site on Oct. 29, 2014. (CBC)

Stephen Collis, one of three Simon Fraser University professors named in the civil suit, calls it a bullying tactic.

"It's really a SLAPP suit—a suit that's not a serious suit at all, but it's intended to shut up activists and stop them from participating in the process by gumming them up in courts and making them accrue excessive court costs and lawyer fees."

The $5.4-billion Trans Mountain pipeline expansion project would almost triple the current petroleum product throughput capacity between the Edmonton area and B.C.'s South Coast, from 300,000 barrels a day to almost 900,000.

Kinder Morgan has said it would prefer to bore its new pipeline through Burnaby Mountain rather than follow the existing pipeline route through residential and business areas.

The City of Burnaby has said it opposes the expansion.

With files from the CBC's Farrah Merali and Richard Zussman