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Trans Mountain lawyer says protesters remain a threat, urges judge to uphold injunction

"This is not an oppressive remedy," RCMP lawyer says
protest
Anti-pipeline activists took part in a peaceful protest - three of them chained to a fence - outside Kinder Morgan's Westridge Marine Terminal in Burnaby on Sunday/Monday.

If a B.C. Supreme Court judge grants a request to end an injunction against anti-pipeline activists, they will be given free rein to restart blockades, hurt Trans Mountain’s bottomline and even jeopardize the environment and public safety, according to a lawyer representing the pipeline company.

Maureen Killoran, counsel for Trans Mountain ULC (a Crown corporation), argued the injunction issued by Judge Kenneth 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 Burnaby Mountain tank farm and Westridge marine terminal. 

Approximately 230 people have been arrested for allegedly violating the injunction since March, many of whom have been convicted of criminal contempt of court.

She 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 Affleck in B.C. Supreme Court on Thursday 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.”

Important work threatened, TM says

But Killoran called Leggett’s reasoning “circular and absurd.” 

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.

She said any new blockades could delay the stand-down work, currently costing the company more than $220,000 a day. 

A blockade could also delay the installation of pile caps and erosion mitigation mats at the Westridge marine terminal on Burrard Inlet, Killoran said.

“If this is not maintained properly, it will have an irreparable impact on the marine environment,” she said.

A shutdown of the Westridge terminal could even impact flights out of Vancouver International Airport, she said, by cutting off the supply of jet fuel coming from the facility.

Protests could also force trucks to stop and turn around on the road outside the tank farm, creating “potentially hazardous conditions and unnecessary safety risk to TM’s employees and the public,” she wrote in her response to Leggett’s application. 

Lawyers clash over likeihood of blockade

But those are all unlikely hypothetical threats, Leggett said.

“There is no credible evidence of an impending blockade,” he said.

There have been no arrests under the injunction since Aug. 24. According to Leggett, that’s because the FCA ruling less than a week later, on Aug. 30, “was a resounding victory for opponents of this project.”

Leggett said opponents saw the ruling as ending the need for active opposition to the pipeline twinning. While the federal government has signaled it intends to continue with the project following a re-examination by the National Energy Board, the court should rule based on the current reality, Leggett said.

“That’s the lay of the land now; We can’t hypothesize as to what will happen,” he said. 

Killoran, however, said the protests had stopped thanks to the Crown seeking harsher and harsher sentences – including jail sentences of up to 14 days – for protesters convicted of criminal contempt of court for violating the injunction.

“It is the increasing severity for a breach of the injunction that explains the decrease in arrests,” Killoran said.

This assertion drew a chorus of laughter from the pipeline opponents gathered in the courtroom gallery. 

Killoran also pushed back against Leggett’s contention that there is not an active and organized opposition to Trans Mountain.

“There is live controversy,” she said. “Activists intend to continue unlawfully impeding Trans Mountain.”

Activists 'bluster' on social media

The corporate lawyer cited multiple social media posts from anti-pipeline activists, which she said demonstrate the ongoing threat to the company’s operations.

“Activists continue to promote blockades at the sites with the intent to delay and frustrate Trans Mountain’s operations,” Killoran said.

Killoran read excerpts from several Facebook posts, including from the Tiny House Warriors, a group led by Secwepemc woman Kanahus Manuel. Killoran said the group, currently based in Blue River, B.C., intentends to impede work on the existing Trans Mountain pipeline.

She cited a Facebook post that she said misinterpreted legal maintenance work on the existing pipeline as “illegal” expansion work. This proves the need for an ongoing injunction, according to Killoran.

Leggett said the social media posts did not prove the activists had any intentions or concrete plans to obstruct the pipeline or work on it.

“It’s talk. It’s bluster at times,” he said.

Court order 'not an oppressive remedy'

Killoran said there’s no evidence the activists’ right to free expression was being violated by the injunction and the balance of convenience in the case favours upholding it. 

“What can’t they do? They can’t break the law,” Killoran said. 

A lawyer representing the RCMP also spoke in favour of upholding the injunction. Kyle Friesen said the order is a “significant law enforcement tool” that has become integral to how police deal with protests.

“Without the injunction, the RCMP would be deprived of law enforcement options,” Friesen told the judge, adding that it allows activists to continue protesting lawfully, peacefully and safely.

“The injunction is not an oppressive remedy,” he said.

But Leggett and Martin Peters – another lawyer representing a protester and advocating to have the injunction quashed – both argued Killoran and Friesen failed to show a need for the injunction to remain in place.

Peters pointed out that without an injunction, it’s still illegal under the criminal code to obstruct a roadway. The police already have the powers they need to deal with any potential future interference with Trans Mountains sites in Burnaby and beyond, he said.

Judge Affleck reserved judgment on the application. It’s not clear when a ruling will be made.