The City of Burnaby’s Application for Leave to Appeal to the Federal Court of Appeal, about the NEB’s Ruling, is being served today.
By Roy L Hales
Kinder Morgan has filed an injunction against Burnaby residents preventing one of its crews from doing a feasibility study on Burnaby Mountain. At 5 pm Thursday, five defendants were served with a pile of legal documents “over three inches deep.” Simon Fraser University (SFU) professor Lynne Quarmby, SFU professor Stephen Collis, Adam Gold, Mia Nisson and Alan Dutton will appear in BC Supreme Court today at 2 pm today. The court will decide whether to “restrain” them from their “trespass upon Burnaby lands, and their wrongful obstruction, impeding, interfering with and prevention of” the pipeline company’s activities. Kinder Morgan is claiming it loses at least $5.5 million in direct costs and $88 million in lost revenue every month the Trans Mountain Pipeline project is delayed is also seeking a permanent injunction, damages, interest and cost. Yet the pipeline company is in the park against the City of Burnaby’s expressed wishes and it is not certain if the NEB ruling that gave the pipeline company access is legal.
The City of Burnaby ejected the pipeline company’s crew from the park on September 2, after it proceeded to redirect city traffic and cut down trees without permission.
The National Energy Board (NEB) intervened last week, stating Kinder Morgan can work in the Burnaby park. Only the NEB has never overruled a municipality before and, according to Burnaby’s lawyer, there is nothing in the NEB Act that gives it the authority to do so.
The City Burnaby’s lawyer, Greg McDade, emailed, “The application for leave to appeal to the Federal Court of Appeal is being served today. How long it will take the court to decide is in the court’s hands.”
While the city waits, local residents are opposing Kinder Morgan on Burnaby Mountain.
Two of them, with a “stop Kinder Morgan” banner, were at the entrance of Centennial Way this morning.
According to Karl Perrin, there were “No Entry” signs on the side of the path on Wednesday, but it looked “like they were posted to bar entry to the woods.”
“There was no indication people were not supposed to be on the path,” he said.
Three or four men with cameras were with the Kinder Morgan crew when it arrived on the site Wednesday. Perrin believes they were hoping to provoke an incident.
Video footage given to the BurnabyNOW shows protesters quietly blocking a group of Kinder Morgan workers (carrying clipboards, cel phones and cameras instead of tools) as they walk through the forest.
“Your access is unrecognized, you’re not entering,” someone said.
“No, You’re not coming through. You are not going to use physical force with anyone here, you are going to leave,” another speaker added.
The protester’s voices were firm, but calm and non confrontational. They locked arms to prevent the Kinder Morgan workers from passing.
Then a male voice somewhere in the background screamed, “No Pipelines!” It was a chant that was picked up by one or two female voices. One of Kinder Morgan people turned to look at these newcomers. That was the point at which the video clip ended.
Paragraph #15 in Kinder Morgan’s statement appears to focus on events after this:
“When the Trans Mountain crew tried to access Borehole No. 1, they encountered a number of protesters congregated in and around the site of Borehole No. 1. The protesters physically blocked access to Borehole No. 1, shouted slogans and comments at the crew and behaved in a manner that made it clear to the crew that if they attempted to perform the tasks for which they came to the site of Borehole No. 1 there would be a physical confrontation and that they would be physically prevented from doing so.”
One of the protesters told the ECOreport that Kinder Morgan workers abandoned the attempt after being “shouted out,” and tried to gain access by another route.
Perrin was at the second site, “The crew had about two chainsaws and then there were about three who had video cameras and the crew chief. They stood around on the path and Brad (another protester) and I stood with them. Nothing happened for about four or five minutes.”
Instead of two men standing with them, paragraph 18 of Kinder Morgan’s account says, ” … two women arrived at the site, went to the area where the crew was working, and seated themselves in the area which stopped the work.”
Perrin said, “Then Adam Gold, Mia Nissen and about two or three others came down the path. When they got within about forty feet of where the crew was standing, they started yelling abusive language at them, swearing and telling them to ‘get the fuck out of there.’ One of them had a bullhorn. They got closer and closer. Then they were within a few inches of their ears telling them they had to leave.”
Kinder Morgan’s account (paragraph 19) describes this incident, “Shortly thereafter, additional protesters arrived. They surrounded the work crew in the work area, walking past the NO ENTRY signs and taking them out of the ground. The protestors acted in a very load and aggressive manner, including yelling with a bullhorn and using the siren function of the bullhorn close to the ears of the work crew. The protesters succeeded in halting to ongoing work. Eventually the RCMP attended at the site and the Trans Mountain crew departed …”
Perrin said the police arrived within five minutes.
In a joint press release, issued this morning, the three defendants not mentioned yelling at Kinder Morgan during the second incident (Dutton, Collis & Quarmby) said:
“The mass of paper was confusing, intimidating and overwhelming to the citizens who have been holding vigil in the park since Kinder Morgan began trying to conduct geophysical testing on public lands, against the express wishes of the City of Burnaby, on constitutionally suspect grounds, and against the wishes of the majority of Burnaby residents.
“The US-based corporation has the audacity to claim residents are “trespassing” in the park. Clearly, Kinder Morgan is using the courts to silence opposition, suppress dissent, and deprive Canadian citizens of their constitutional rights. This is Big Oil against the people, in its most raw and offensive form, forcing its project through regardless of local concerns or the average citizen’s wishes.”
The City of Burnaby maintains the Trans Mountain Pipeline expansion project would bring little benefit and much harm to the local economy:
“Though short-term jobs would be created in pipeline construction, there is no guarantee that any of these jobs would be for local workers. The number of long-term jobs that would be created is insignificant. Kinder Morgan president, Ian Anderson, has admitted this fact.
“The economic value of any taxes Kinder Morgan would pay would not offset the negative economic impacts to other businesses and the significant permanent limitations the pipeline right-of-way would put on land-use opportunities.
“Burnaby has long-term plans – developed with our citizens – for town centre, transportation, residential and recreational developments. All would be severely negatively impacted by the pipeline, tank farm and docks.
“Given the planned and potential economic development opportunities that would be eliminated, the taxes Kinder Morgan would pay would not compensate for the permanent damage the project would cause – even without the devastating economic, social and environmental impacts of an oil spill or tank farm fire.”
Burnaby is also among the British Columbian cities and municipalities that say the questions they submitted through the NEB hearing process have not been answered.
A letter from the City of Burnaby saids Kinder Morgan “chose not to answer 62% of our questions and gave partial answers to 14%. Kinder Morgan said most of the City of Burnaby’s questions were not relevant.”
One of the questions the city says Kinder Morgan did not answer is, “Will Trans Mountain build this pipeline and expand the Burnaby Terminal tank farm and Westridge Marine Terminal without the consent of Burnaby or its citizens”
Instead of saying “yes” or “no,” the pipeline company responded,
“As a federally regulated entity under the National Energy Board Act, if Trans Mountain Pipeline ULC (Trans Mountain) is granted a Certificate of Public Convenience and Necessity, it will proceed to apply for all permits and authorizations that are required by law. Trans Mountain will also continue to work with the City of Burnaby to understand the applicability of its bylaws and standards to the construction and operation of the Project. As the City of Burnaby is aware, Trans Mountain has offered numerous opportunities for City of Burnaby staff to engage on discussions regarding permitting and bylaw issues that pertain to the Project as is outlined in the attached Table 1 (provided as City Burnaby IR No. 1.01.03a – Attachment 1). Trans Mountain remains open to opportunities to continue discussions on these matters with the City of Burnaby when it is ready to reengage.”
Kinder Morgan also refused to answer questions about the integrity of its existing pipeline. This is supposedly “not relevant,” though the pipeline’s existence is the reason Kinder Morgan is not considering alternate routes.
Eoin Madden, Climate Campaigner with the Wilderness Committee, will be among those at the BC Supreme Court Hearing this afternoon.
“This latest move by Kinder Morgan makes me really angry,” he said in a press release this morning. “We are going to work with the people of Burnaby for as long as it takes to ensure that they no longer have to endure Kinder Morgan in their backyards.”
“The people of Burnaby love their parks and protected areas. They’re also very concerned about the impact of this project on climate change. It’s not right that this Texas-based pipeline company is attempting to bully them out of the way so it can dig up this conservation area to build its tar sands pipeline,”
Kinder Morgan is a Houston-based, multinational energy company, founded by former Enron executive Richard Kinder. They entered into the energy market by purchasing of Enron Liquids Pipeline.
The pipeline company purchased the Trans Mountain Pipeline in 2005 and there have been a number of spills since that time. One of the largest took place in Burnaby. Fifty houses were impacted as 1,572 barrels of crude oil drenched the neighborhood. One of the victims is now a leader in the resistance to the Trans Mountain Pipeline Expansion proposal. The spill entered the Burrard Inlet through a storm sewer, spreading along the shoreline and negatively impacting local wildlife.