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Burnaby residents ask court to toss out Kinder Morgan’s lawsuit

“This [Kinder Morgan] application should fail.  The court should dismiss it," a Burnaby resident's lawyer told the B.C. Supreme Court.

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Kinder Morgan work crews leaving Burnaby Mountain - Mychaylo Prystupa

Kinder Morgan work crews leaving Burnaby Mountain last week.  Photo by Mychaylo Prystupa

Chantler also said the company’s court application that protesters are “trespassing” has “no merit” since the company itself was made not welcome by the City of Burnaby.  The Mayor of Burnaby has personally attacked the company in a September speech to protesters on Burnaby Mountain.

"When you think about the potential catastrophe that could occur as a result of one of those tankers being damaged in our inlet – the destruction that that would cause to the reputation of this city," Mayor Corrigan told the Sept.15th crowd.

“We’ve stood up aggressively against this because we don’t believe anything Kinder Morgan says,” the mayor added.

Federal court case also underway to stop pipeline

Crucially, the citizen’s defence lawyer argued that the City of Burnaby is already using a federal court to try and stop the pipeline survey work in its conservation forest, so this current case before the B.C. Supreme Court should be thrown out.

The city is seeking is seeking to overturn a recent order of the National Energy Board that allowed the company to sidestep city bylaws regarding conservation lands.

“If the federal court of appeal reverses the NEB’s decision, the very basis for Trans Mountain to do any work in the Burnaby Conservation lands disappears.  Trans Mountain will have no authority to perform survey work that infringes Burnaby’s bylaws,” Chantler told the court.

He also stated that Kinder Morgan is creating unnecessary “duplicate proceedings” in the courts with the aim of inflicting significant legal costs on the defendants.

Chantler said the whole matter should be more properly dealt with by the NEB - a statement that raised eyebrows in the court's public gallery.  Outside the courtroom, the lawyer explained Kinder Morgan might be using the B.C. Supreme Court for strategic reasons.

“They might think it’s more of an enforceable order, quicker, and easier to get the police involved, than if it was at the NEB level,” said Chantler. 

RCMP have so far shown restraint in its dealings with protesters.  A young man who chained himself to a Trans Mountain jeep last week was not charged – a court order barring citizens from interfering with the company would change that.

SFU Professor Stephen Collis Kinder Morgan lawsuit defendant - Mychaylo Prystupa

SFU Professor Stephen Collis Kinder Morgan lawsuit defendant.  Photo by Mychaylo Prystupa.

A second defence lawyer, Casey Leggett – representing two SFU professor defendants -- tried to dispel the idea that Stephen Collis was some sort of “master mind” behind the protesters.  Collis often speaks to the media about the public interest issues at stake in this conflict, and also runs a blog.

The court also heard criticisms about the National Energy Board.  It was read into the court record the resignation letter of Marc Eliesen – a former BC Hydro CEO and energy industry exec who slammed the board as a “truly industry captured regulator” and described its hearing process as a “farce.”

A third lawyer Jason Gratl is expected to defend Mia Nissen and Adam Gold on Friday. 

Both activists have taken acts of civil disobedience in the past, including chaining themselves to a Chevron facility fence.  Both are also alleged to have taken direct actions to obstruct Kinder Morgan’s work crews, including tree fellers.  Gold’s use of a bullhorn at close range of an employee’s ear has drawn a lot of attention. 

But on that score Gratl told the Wet Coast News:

“We think on the evidence, we have individuals with megaphones that are amplifying their voices, and are at times obnoxious.  But is that a crime?  No,” said the defence lawyer.

Officially, Trans Mountain is asking for an injunction barring protesters from blocking its crews from doing survey work at the Burnaby Mountain Conservation Area Park.  The company is also asking for damages and costs in a civil lawsuit over what it claims is trespass, assault and intimidation by protesters who chased away workers.

“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,” a Trans Mountain spokesperson wrote this week.

The judge is expected to rule on the injunction Friday.  The hearing resumes at 10am at 800 Smithe Street and is open to the public.

Neil Chantler defence lawyer Burnaby Kinder Morgan - Mychaylo Prystupa

BROKE lawyer Neil Chantler outside court room on Thursday.
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