Kinder Morgan decision to be handed down on Nov. 17
Environmental activists blockading the Kinder Morgan oil pipeline expansion through Metro Vancouver have been targeted by the energy giant for speaking out against climate change, a defence lawyer told B.C. Supreme Court.
But the protesters have a fundamental right to freely express their views within the conservation area of Burnaby Mountain, where they’ve prevented employees of subsidiary Trans Mountain from conducting survey work, said lawyer Jason Gratl.
“The purpose of this lawsuit is to stop the expressive activities of my clients,” he told Associate Chief Justice Austin Cullen on Friday in defence of two protesters. “The plaintiffs consider my clients to be political leaders in marshalling expression against their project.”
Mia Nissen and Adam Gold are named with Simon Fraser University professors’ Stephen Collis and Lynne Quarmby, and Alan Dutton, who leads the Burnaby Residents Opposing Kinder Morgan Expansion, in two legal actions launched by Kinder Morgan.
Company lawyers have argued for an injunction to dismantle around-the-clock encampments at two bore hole sites and a nearby park in Burnaby, a suburb of Vancouver.
The group, calling itself the Caretakers of Burnaby Mountain, is also the subject of a multimillion dollar civil lawsuit over claims of trespass, assault and intimidation against the workers.
Pipeline builder Trans Mountain was granted approval by the National Energy Board to assess a prospective underground route for the $5.4-billion tripling of an existing crude oil passage from Alberta to B.C. for export. On Friday, the City of Burnaby asked the federal court to expedite its own appeal of the NEB’s decision.
Gratl told the judge that he wasn’t asking him “to adjudicate on global climate change,” but instead recognize the “life-and-death struggle for continued existence” was crucial in the context of the drama that heightened on the mountainside in late October.
The company contends activists have organized a conspiracy to harm Kinder Morgan, alleging profanity, blasting a bullhorn near workers’ ears and projecting menacing facial expressions that constitute assault. The nefarious expression argument by company lawyers swiftly prompted a social-media trend in which people posted photographs of mock snarls and bemused scowls.
Court heard Gratl’s clients Nissen and Gold have a “deep and abiding interest” in climate change issues, which have been amplified because the NEB has refused to scrutinize whether the company’s actions could play a role in the global phenomenon.
The lawyer proceeded to give evidence of two instances of Kinder Morgan’s damaging environmental history. He cited a 2007 accident where city crews struck the existing pipeline, causing oil to rain down upon a Burnaby, B.C., neighbourhood, and a pipeline rupture in California in 2004 that killed five workers.
He then described actions by his protesting clients that stopped the Trans Mountain employees from carrying out their field studies, including profanity-laced shouting.
“When my client Mia Nissen says ‘Kinder Morgan, you’ve got blood on your hands,’ that is because, my lord, Kinder Morgan does have blood on its hands,” Gratl said. “That is not coming out of nowhere, it is not hyperbolic. It is pretty accurate, even if a merciless expression of the reality.”
He also referenced photo and video footage showing the accusation that Gold was directing his megaphone directly into a worker’s ears. The photo shows the tree faller donning thick hearing protection, he said.
“Which in many senses is a fine metaphor for what’s going on,” Gratl said, eliciting applause from the gallery, which has been packed with supporters throughout the proceedings.
“Falling on deaf ears,” quipped one man in attendance. A clear, protecting shield in the high-security courtroom stops the judge and lawyers from hearing remarks from the gallery.
Gratl then announced he was asking Cullen to fully dismiss the civil suit against his clients.
“If somebody brought a claim to this court that consisted of that little outtake, that would be an abuse of this court,” he said.
Swearing is also not wrongful behaviour, he said, adding “the F-bomb is just not illegal.”
Kinder Morgan lawyer Bill Kaplan later told court the protesters’ lawyers had “sullied” the concept of freedom of expression.
“These defendants have a right to express themselves and they have a right to assemble,” he said in his reply. “This isn’t about free expression. This is about the imposition of these defendants’ view of the world on others through the engagement of tortious behaviour.”
Police have made two arrests at the camp since it began in early September, a lawyer for the RCMP told the court. A man who chained himself under a vehicle will not be charged, while another man faces charges of obstructing a police officer.
Cullen reserved his decision until Nov. 17. The protesters named in the suit said they would speak to their lawyer before deciding whether to return to the mountain, even as a handful of others continue the vigil.
By Tamsyn Burgmann of The Canadian Press