Kinder Morgan Burnaby Mountain protest injunction granted

Kinder Morgan has been grantedan injunction againstprotesterswho have been blocking crews from doing work in theBurnabyMountain Conservation Area.

The company saidthe protesters have beeninterfering with survey and drilling work it needs to complete for its submission to the National Energy Board onthe proposed Trans Mountain pipeline expansion.

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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 andbarricades, and to clear out of Kinder Morgan's surveywork areas.

Associate Chief Justice Austin Cullen said in his judgment that one majorconsiderationhe hadto balance is the interest oflegitimate protest involving freedom of expression against potential unlawful activity, which would include assault and intimidation.

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"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 plaintiffs representatives from accessing their work sites."

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Cullensaidthe question ofirreparable harm caused by granting or not granting the injunction came downin favour of Kinder Morgan, which stands to lose money through delays toits 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 strongprimafaciecase of liability fortortiousbehaviour," 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 opinionis "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 Mountains 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 arearights 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."

• On mobile? Click here to read Justice Cullen's decision

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.

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

"It's really a SLAPP suita 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 projectwould almost triple the current petroleumproduct throughputcapacitybetween the Edmonton areaand B.C.'s South Coast,from 300,000 barrelsa day to almost900,000.

Kinder Morgan has said it would prefer to bore its new pipeline through Burnaby Mountainrather than follow the existingpipeline route throughresidential and business areas.

The City ofBurnabyhas said it opposes the expansion.