The BC Supreme Court ruled on Thursday to uphold an injunction granted in 2018 against blocking access to Trans Mountain pipeline sites in Burnaby, including the Burnaby Mountain tank farm and the Westridge Marine Terminal.
Judge Kenneth Affleck wrote in his reasons for judgment that if the injunction was lifted, he expected protests to continue again, disrupting work at the Burnaby sites.
“The submission that the plaintiff could apply for another injunction if its business were disrupted following the dissolution of this injunction is only superficially attractive," Affleck wrote. "I have little doubt that, if the injunction were set aside, some interference with the plaintiff’s lawful activities will continue. Seeking another injunction would likely be time consuming. The RCMP cannot reasonably be expected in the meantime to use the somewhat cumbersome provisions of the Criminal Code to prevent the obstruction of lawful work. The strain on RCMP resources is already significant and the inability to rely upon the injunction would likely increase instances of confrontation between the protestors and the plaintiff’s contractors, employees or agents."
Approximately 230 people have been arrested for allegedly violating the injunction since March, many of whom have been convicted of criminal contempt of court. Sentences have ranged from fines to jail time.
The ruling was responding to an application filed by lawyer Casey Leggett on behalf of anti-pipeline activists to have the injunction set aside. Leggett argued that since the expansion of Trans Mountain’s oil pipeline from Edmonton to Burnaby has been halted following a Federal Court of Appeal ruling, the injunction is now “moot.”
Leggett told Judge Kenneth Affleck in B.C. Supreme Court in November 2013 that the injunction should be overturned because there is no longer a “live controversy” around the project, Trans Mountain can’t demonstrate irreparable harm would be caused without the order and the injunction is “impermissibly indefinite.”
Maureen Killoran, counsel for Trans Mountain ULC (a Crown corporation), argued the injunction issued by Affleck on March 15, 2018, provided local police with an essential tool in dealing with repeated blockades and interference with the company’s lawful activities at its tank farm and Westridge.
She said the injunction is needed to protect pipeline’s existing operations, as well as “stand-down” work necessary since construction on the expansion stopped following the federal court quashing the federal government’s approval of the project.
“This work needs to be completed as quick as possible,” Killoran said.
“The injunction was intended to dissuade land defenders and water protectors from blocking access to the Trans Mountain pipeline and tanker project’s construction sites, located on unceded territories,” according to a news release from the anti-pipeline group Protect the Inlet.
But Affleck wrote that people can still protest the project.
"It is important to emphasize yet again that the injunction expressly provides that those persons who oppose the Project are entitled to engage in peaceful, lawful and safe protest. The injunction has been read aloud by members of the RCMP in its entirety on multiple occasions to those who have defied it and been arrested for alleged contempt of court, usually in the presence of large numbers of their supporters. Paper copies of the injunction have been given to those subject to potential arrest and they have been given ample time to read it and to avoid arrest. No alleged contemnor has denied knowing of the right to peaceful, lawful and safe protest. The evidence I have heard throughout these proceedings and some oral submissions persuades me that the intention of many persons opposed to the Project has been, and will continue to be, to defy the injunction and to seek arrest in order to draw attention to their cause, rather than to exercise a right to peaceful, lawful and safe protest.”
Trans Mountain issued a statement on Friday regarding Affleck's ruling: "We respect the right to peacefully protest and there are many ways to express opinions in a safe and lawful manner. The Injunction was put in place to allow our employees and workers to safely go about their business. As always, the safety of the community, workers and our pipeline system is Trans Mountain’s top priority."
