The latest episode in the ongoing and expanding saga of pipeline opposition in British Columbia is the BC Supreme Court’s decision on November 14, 2014 granting an injunction to Trans Mountain Pipeline ULC (“Trans Mountain”) to prevent protestors from continuing to interfere with Trans Mountain’s investigative work in the City of Burnaby. The work is part of Trans Mountain’s investigation of routing options for its proposed pipeline expansion from Edmonton to Burnaby. A full copy of the decision can be found here.
Trans Mountain sought an injunction to stop protesters from interfering with the survey and drilling work for the assessments required by the National Energy Board ("NEB”). The geotechnical work will include borehole testing within a conservation area on Burnaby Mountain, which is required to determine the feasibility of a tunnel under Burnaby Mountain. The work has been prevented to date by protestors who used aggressive and threatening tactics to disrupt the survey crews, including the blowing of bull horns in the ears of the survey crews, making threating comments and chaining themselves to vehicles. Videos of the protesting tactics can be seen in this CBC news story.
Trans Mountain's underlying action seeks damages for trespass, nuisance, assault, intimidation, intentional interference with contractual relations and conspiracy.
In support of its application for an injunction, Trans Mountain argued that a delay in completing the field studies would delay the hearing before the NEB and thereby create uncertainty about the project. Delays would lead to direct financial harm to Trans Mountain, and to others contracting with it, estimated to be $5.6 million per month with additional, unquantified losses of revenue. Trans Mountain also pointed to potential harm to third parties that could result from the failure to enjoin the defendants' activities, including lost opportunity to consult in the process, financial harm to local, provincial and federal economies and delay and compromise of a Canadian national infrastructure project.
Conversely, the defendants argued that the: (i) the Court either lacked jurisdiction to hear the application, or ought to decline it in deference to the NEB; (ii) that the application was premature in that it is an attempt to circumvent the appeals before the Federal Court of Appeal and the B.C. Court of Appeal; and, (iii) that on the merits the application failed to meet the test for an injunction.
The defendants' arguments all failed. First, the Court held that the allegations of tortious behaviour were within the Court's domain; not the NEB, who lacked the authority to assess or award damages for tortious conduct. Second, the Court held that the issues relevant to the injunction application have "nothing to do with the proceedings under appeal which involve the City of Burnaby, the plaintiff, and the NEB" and therefore could not be considered premature. Finally, the defendants failed to convince the Court that the evidence advanced by Trans Mountain did not establish a strong prima facie case or a serious question to be tried, and that even if this threshold had been met, the balance of convenience did not weigh in favour of dismissing the application.
The Court concluded that a failure to grant the injunction was more likely to result in irreparable harm to Trans Mountain, than the defendants, given the substantial costs and potential loss of revenue associated with the delays. On the contrary, the Court indicated that the minimally intrusive nature of the preliminary work, and limited number of trees to be felled, did not constitute irreparable harm to the defendants. This was based, at least partially, on the fact that the City of Burnaby (the occupier of the land), despite appealing the NEB's approval of the work, had not applied for stay of that approval. Recent reports are that a stay application is pending, though the City will face similar difficulties as the protestors did here in meeting the three part test for a stay (prima facie case, irreparable harm, balance of convenience).
The Court gave the protestors until 4:00 pm on November 17, 2014 to remove their property and to stop interfering with Trans Mountain's activities. The more aggressive contingent have been quoted in the press as saying they will refuse to abide by the terms of the order. UPDATE: On November 20, 2014 the RCMP moved in to enforce the order and began making arrests. As of writing, reports were at least six protestors had been arrested.