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Burnaby Mountain battle: our notes from the courts, the woods and 100 arrests

History unfolded on Burnaby Mountain.  This is the Vancouver Observer's account of what we saw.

Burnaby Mountain protesters cross police line Kinder Morgan Mychaylo Prystupa
Protesters in the background raise their hands in triumph after crossing the police line to be arrested on Burnaby Mountain last week. Among them, David Suzuki's daughter and granddaughter (hidden from view). An RCMP officer videotapes the crowd. Photo by Mychaylo Prystupa.

Kinder Morgan removed its drill equipment this weekend, after several momentous weeks culminating in more than 100 arrests on Burnaby Mountain.  The stories, photos, videos and emotions were incredible.  The following is some of our reporters’ notes from the field – from the courtroom to the conservation forest – where the dramas around the Trans Mountain pipeline expansion proposal unfolded.

Our news team started seeing matters "heat up" on Burnaby Mountain in early September.  That’s when Kinder Morgan began cutting down 13 trees (the number is disputed) in the city's conservation park on the mountain.  But its authority to do so was in question.  Burnaby's Mayor Derek Corrigan expressly forbade the company from cutting down the trees, and said doing so was in violation of municipal bylaws.  It then began legal manouvres to try and stop the company.

Kinder Morgan drillers under RCMP protection Burnaby Mountain Mychaylo Prystupa

Kinder Morgan's borehole drillers under 24/7 RCMP protection last week on Burnaby Mountain.  Photo by Mychaylo Prystupa.

Ostensibly, Texas-based Kinder Morgan, known locally as Trans Mountain (after the name of its pipeline), was seeking to do borehole testing, to see if the mountain's geology could handle the last leg of the company's hoped for Edmonton-to-Burnaby pipeline expansion.  Kinder Morgan is the largest pipeline company in America, and the Trans Mountain pipeline expansion in Canada is the company's most important project on the continent, a chief executive told investors recently.

If the export pipeline is approved by the NEB and the Harper cabinet next year, construction would begin in 2016, requiring approximately 4,500 workers for it to be built.

To some the geotechnical survey on Burnaby Mountain was a fairly ordinary industrial exercise – mere testing, to see if the mountain was even suitable for the proposed pipeline.  The survey was ordered by the NEB earlier this year, after the company proposed a new routing for the pipeline under the mountain.  The company said the pathway came about after extensive community consultations, that suggested the mountainous route would help it avoid streets and homes. 

Burnaby Mayor Derek Corrigan - Kinder Morgan protest - Mark Klotz

Burnaby Mayor Derek Corrigan at a Kinder Morgan protest on Burnaby Mountain in September.  Photo by Mark Klotz.

But to a committed group of citizens that quickly grew into a movement – plus Burnaby's Mayor – the testing represented so much more. Some didn't like the expanded pipeline's proximity to homes and schools, others opposed the expansion of the oil sands and the worsening of climate change.  Yet others worry about the ecological risks of a catastrophic oil spill on land or at sea.

A word about Mayor Derek Corrigan.  One national syndicated news service described his opposition to the pipeline as being a mere legal quibble, over which laws held more weight: local or federal ones.  So we sought clarification.  Corrigan was unequivocal.  He wants the pipeline stopped, period.  He opposes the muscling of a U.S. multinational acting against the wishes of his elected council, and the marshalling of raw Alberta bitumen energy for export only.  He also said he believes cities should have a bigger say over oil pipeline approvals.

“Kinder Morgan was not entitled to carry out this destructive action,” he said about the tree removals in September.  “We will do everything we can as a City to ensure Kinder Morgan does not return."

The self-described former hippie -- who once had hair past his shoulders in the 70s -- said he would use the power of the city's legal team (he himself is a UBC law grad) to try to thwart the company's plans through Burnaby.  The Mayor has been generous with his time in explaining his position to our team, at times speaking for 25 minutes or more by phone.  He often mentions the city's poll of Burnaby citizens showing 68% opposed to the project.

And if there was any doubt about how stridently opposed the mayor was to the pipeline, he erased it when he gave a firebrand speech one weekend in early September to an anti-Kinder-Morgan rally on the mountain. 

But in response, Kinder Morgan's PR efforts went into overdrive.  TV ads kicked in during municipal election campaigns, and the company’s Canadian president Ian Anderson hosted "dial-in" town halls, where anyone in the Lower Mainland could ask him questions.  To the executive’s credit, Anderson is ostensibly a straight shooter - a likeable professional who appreciates fully that many people do not support his project, but that many others do.  Unlike other pipeline companies, such as Enbridge, Trans Mountain generally responds to all reporter questions and media inquiries. 

NEB Aboriginal hearings Kinder Morgan Chilliwack - Mychaylo Prystupa

NEB Aboriginal hearings about the Trans Mountain pipeline expansion in Chilliwack in October.  Photo by Mychaylo Prystupa.

The company appears to not want to make Enbridge's much talked about PR mistakes, and has engaged in extensive consultations with communities and First Nations.  (Though at one NEB Aboriginal hearing in Chilliwack, a Kinder Morgan lawyer perhaps insensitively questioned how much a local First Nation still eats fish – our story about that provoked hundreds of Indigenous people to submit photos of themselves and their children catching, skilleting, and eating fish, as a humourous public response.)

All the while, the battle got legal throughout September.  Queen's Council lawyers (i.e. lawyers of high distinction) from the city and the company presented arguments about the disputed borehole testing to provincial court and the National Energy Board.  The city also has an upcoming legal challenge in federal court.

Kinder Morgan argued that federal laws – and the power granted by the NEB – should take primary force, and therefore the pipeline testing should be allowed.  Burnaby argued municipal laws, given power by provincial constitution, should allow it to have some say over industrial projects.   The city cited its core responsibilities in citizen safety, orderly traffic, and conservation efforts.  Burnaby Mountain is a treasured untouched piece of forest in the heart of the city.  (Burnaby's fire chief also once reported that the proposed doubling of oil tank farms on the mountain is an unacceptable fire-fighting hazard, too close to thousands of homes.  The company disputes this.)

At first, the City of Burnaby seemed to win the legal battle.  The NEB told Kinder Morgan its argument was not persuasive, and it would need to come back with a more constitutional argument.  Our story about that temporary "win" for the city quickly went viral.

But before long, the company was back at the NEB in October at a special hearing in Calgary, where eventually it won an order from the board, with legal force, to proceed with the borehole testing.  The company posted a 48 hour notice of its test work plans, and in response, the city posted the notice on the city’s website. Now everyone knew what was about to take place.

Kinder Morgan crews confronted Burnaby Mountain - Mychaylo Prystupa

Kinder Morgan crews confronted on Burnaby Mountain in late October.  Photo by Mychaylo Prystupa.

The clashes began

Kinder Morgan crews – tree fellers, security guards and engineers – began attending to the mountain in late October.  But everywhere they went, highly organized protesters descended.  Kinder Morgan later said in court that women squatted in front of chain-saw workers, while others stepped on and bent the company's “no entry” signs.  Bull horns were used, and the f-word was uttered, the court heard, to some snickers from the court's gallery.  The company claimed the protesters' snarls and intimidation tactics represented a form of "assault."  Our small, simple story on the resulting #KMFace social media response nearly crashed our web server with 200,000 views.  Newspapers from San Francisco to Toronto also carried the popular story.

In response, Kinder Morgan Canada's president Ian Anderson said: “I know this work has struck a chord, and marshalled resources of opposition."

"I know not everyone supports this project, and I expect and welcome as many voices and opinions as possible....[But] we are firm supporters of freedom of speech."

Jakub Markiewicz under Kinder Morgan truck on Burnaby Mountain Mychaylo Prystupa

Protester Jakub Markiewicz under a Kinder Morgan truck on Burnaby Mountain in October.  Photo by Mychaylo Prystupa.

Soon large numbers of citizens, TV crews and journalists were gathering on the mountain every day.  Then on Oct. 28, clashes between citizens and the company's crews deep in the conservation forest were highly photographed, including by us.  But the company had its cameras too.  Everywhere officials went, company security staff videotaped angry protesters. An 18-year-old also pinned himself under a Kinder Morgan jeep with an Alberta licence plate, frustrating the work crews further.

A biochemist speaks out

Around this same time, a soft-spoken distinguished scientist who opposes the pipeline decided to write an op ed in the Vancouver Observer.  Professor Lynne Quarmby – who leads the molecular biology lab at Simon Fraser University – said she would be willing to be arrested to stop the pipeline testing on the mountain, citing climate change as her biggest worry.

But doing so brought her a world of legal trouble and intense media attention.  On Oct.30, she along with other citizens were slapped with a multi-million-dollar lawsuit by Kinder Morgan.  She quickly became worried she could lose her home.

Also named in the lawsuit was SFU literary professor Stephen Collis, university admin worker Mia Nissen, retiree Alan Dutton, activist Adam Gold, and the citizens' group BROKE (Burnaby Residents Opposed to Kinder Morgan Expansion.)  People with BROKE said all summer they had a hard time getting any media attention.  Now, with the legal attack they described as a “SLAPP” suit, they were getting more attention than they could dream of.   Many in the public were sympathetic.  The defendants crowd-funded more than $50,000 in mere days to pay their legal bills.

The company had made it clear it was serious about removing the protesters from obstructing the work needed for its $5.4 billion pipeline.  It claimed it was losing more than $80 million with every month the project was delayed. 

In addition to the civil suit, Kinder Morgan also sought an injunction (a court order) to direct the RCMP to prevent protesters from interfering with the drilling.  The company's application for the injunction at the BC Supreme Court was attended by more than 100 citizens, who came out in support of the defendants' speeches, and to cram the court room where the legal drama played out for one week. 

To some, climate change was literally put on trial. 

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