Is Trans Mountain’s Burnaby lawsuit a set-up?

By Roy L Hales

Screen-shot-2014-03-18-at-3.43.47-PM1Kinder Morgan’s subsidiary, Trans Mountain Pipeline, wants to build a larger pipeline from the Alberta tar sands to it’s Westridge Marine Terminal in Burnaby, BC. This will triple the amount of diluted bitumen flowing through the lines. The city of Burnaby does not want this. On September 2, it stopped a Trans Mountain’s crew from working in a Burnaby park. The National Energy Board (NEB) intervened, which led to the crew’s return on Wednesday, October 29. They found their path obstructed by concerned Burnaby residents. This was expected. According to a witness, the Trans Mountain crew brought three cameras and only two chainsaws. The following day, five of the protestors were served with what has been described as a “1,000 page” lawsuit.  That sounds like a lot of work for Kinder Morgan’s lawyers to prepare in one day. Is Trans Mountain’s Burnaby lawsuit a set-up?

Adapted from maps in schedule A of Trans Mountain's Order Made AFter Application
Adapted from maps in schedule A of Trans Mountain’s Order Made AFter Application

Kinder Morgan’s senior project director, Greg Toth, described these events differently, “Trans Mountain is seeking an injunction order against trespassers on Burnaby work sites so that we can safely continue field studies mandated by the [National Energy Board].”

“Our preference is to work cooperatively, and we respect the right to peaceful protest.  However, we are required by the NEB to complete these studies in order to support our application, and we are pursuing our legal options.”

The NEB’s deadline for these studies is December 1, 2014, and, at this point, it is not certain what will happen if Kinder Morgan does not meet it.

Their opportunity is being attacked from another direction. The City of Burnaby questions the legality of the NEB’s ruling. No previous tribunal has ever claimed the power to override municipalities. There does not appear to be anything in the NEB Act that gives the board authority to take this action. Burnaby has started the appeal process.

When Kinder Morgan’s crew returned to the site Wednesday, armed with the NEB’s ruling, they were blocked by local residents.

Kinder Morgan expected this. They brought cameras to record it. In the second of the two incidents that ensued, a group of protesters were verbally abusive and right got into the crews face with a bullhorn. The following day two of the protesters known to have been verbally abusive (Adam Gold & Mia Nissen) and three leaders of the citizen’s groups protesting Kinder Morgan’s intrusion (Alan Dutton, SFU English professor Stephen Collis & SFU Biology professor Lynne Quarmby) were served with what Collis describes as a “1,000-page lawsuit.”

Burnaby Mountain Overlooking Indian Arm - Courtesy Heather Harvey, CC By SA, 2.0
Burnaby Mountain Overlooking Indian Arm , note the approaching tanker – Courtesy Heather Harvey, CC By SA, 2.0

How long does it take to prepare a 1,000 page lawsuit? Are we supposed to believe Kinder Morgan’s lawyer, Bill Kaplan, did it in 24 hours? Or was most of it prepared in advance?

Then we have the fact that a witness says Kinder Morgan’s crew brought three cameras and two chainsaws to the site on Wednesday.

This sounds like a set-up.

Kinder Morgan claims it incurs $5,643,000 in expenses, as well as $88 million per month in lost revenues, every month the Trans Mountain Pipeline Project is delayed.

They seem to regard the fact Burnaby doesn’t want their pipeline is irrelevant.

Entrance to Kinder Morgan's Westridge Marine Terminal - Courtesy the Wilderness Committee video "Save the Salish Sea"
Entrance to Kinder Morgan’s Westridge Marine Terminal – Courtesy the Wilderness Committee video “Save the Salish Sea

Kinder Morgan claims the protestors were “trespassing.”

“Kinder Morgan has been given temporary access to do survey work.  That does not exclude the access rights that everyone else has to that land.  And they are asserting exclusive access,” the lawyer for “Burnaby Residents Against Kinder Morgan Expansion” told the Vancouver Observer.

Justice Miriam Gropper turned down the defendant’s request for a stop work order. On Wednesday, November 5, she will decide whether to grant KInder Morgan an injunction barring protestors from the parts of the park where work is being done.

Kinder Morgan’s second legal suit, seeking damages from the five defendants, is future.

One has to ask what the pipeline company hopes to gain? Do they think that the opposition will crumble before their threats? Do they seek to make an example of the five defendants? If so, does Kinder Morgan realize that creating martyrs is not good publicity? Does Kinder Morgan even care what people think?

Loaded Oil Tanker leaving Vancouver - From the Wilderness Committee Video Save the Salish Sea
Loaded Oil Tanker leaving Vancouver – From the Wilderness Committee Video “Save the Salish Sea

The Pipeline company’s arrogance during the so-calling National Energy Board (NEB) hearing has done nothing to allay public concerns. Trans Mountain not only refused to answer many of Burnaby’s questions, it repeatedly stated it was open “to continue discussions on these matters with the City of Burnaby when it is ready to reengage.“ To put it crudely, this would seem to mean “we might answer your questions if you accept our pipeline, otherwise go fuck yourself.”

(Image at top of page: Vancouver Courthouse – Courtesy Gary (gcD600) , CC By SA, 2.0)

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