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

Mychaylo Prystupa

November 29th 2014

#14 of 162 articles from the Special Report: Canada's Oilsands

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: MP

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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 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."

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.

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.

Finally, the high judge sided with Kinder Morgan, and issued a court order barring citizens from interfering with the disputed pipeline-drill tests. On the evening the injunction took effect on Nov.17, some 800 people rallied on the mountain (we counted). What started as a trickle of attendees to the beautiful conservation park had become a massive crowd.

For a couple of days, there was calm. Protesters kept coming, but the company had not. (For the record, we never witnessed a Kinder Moran spokesperson on the mountain. Its media team only communicated with us via emails, tweets and press releases – nobody in person.) The small camp site at one of the planned borehole sites quickly grew to a key staging area for pipeline opponents. Food, hot chocolate, and supplies were on hand, and a sacred fire burned.

Each day, citizens braced for what they knew would likely be their arrest for violating the court order. Some trained on how to lock their arms, to make their removal more difficult. And spontaneously, a Vancouver Opera violinist showed up and beautifully bowed Thais Meditation – a century-old song about a woman about to die. "I just dropped everything to come up here. To me [the pipeline] is just wrong,” said violinist Carolyn Cole.

The arrests begin

Then on Nov.20, the RCMP stormed in with police vehicles, and dozens of officers to make their arrests. One young man was forcibly removed from a tree. We arrived just in time to photograph and witness several protesters getting cuffed, and directed into police vans. Sensing that history was in the making, we invested in new camera equipment. You can see many of our photos on our Flickr site.

Among the arrestees was Bridgette DePape – a Vancouver activist famous for holding a "Stop Harper" sign in Parliament in 2011, when she worked as a Senate page. Also arrested was a young man whose grandfather happens to be David Suzuki. Tamo Campos -- founder of the activist group Beyond Boarding -- was taken into custody. The next day, he gave an impromptu speech so emotionally and persuasively, our story about it has more than 34,000 Facebook shares -- (that's a lot.)

For awhile, it seemed the whole Suzuki family was getting arrested: David's daughter, granddaughter, and grandson were all cuffed for crossing into the injunction zone, where drillers busily brought up borehole sample after borehole sample, under intense 24/7 RCMP protection.

Vancouver activist Bridgette DePape arrested on Burnaby Mountain in November. Photo by Mychaylo Prystupa.

Suzuki himself, who had been travelling in Asia, had written a letter of support for his grandson's actions crossing the police line. But many wondered if the legendary broadcaster / scientist / environmentalist might show up.

Then one week ago on Sunday, he made a surprise appearance. "My grandson was dragged across the line and was arrested!" he shouted at the RCMP police line - his voice filled with emotion. "I'm disappointed and it grieves me because of the respect we have for you!" Our video of this moment now has more than 80,000 views, and was picked up by the Huffington Post and UPworthy.

Suzuki railed against the pipeline project as fundamentally devaluing the ecology (air, land, water and climate) that provides all people with life. He told the Vancouver Observer that he himself would not cross the police line, fearing that such an action would get him fired from his CBC host job with The Nature of Things.

All the while, the arrest count climbed. 53, according the the RCMP, last weekend. Some waited their time, unsure if they should risk arrest. Finally, Lynne Quarmby made her decision. She held a rain-soaked press conference to announce that she had done all the “right” things to oppose a pipeline: written op/eds, spoken with elected representatives, and written letters to regulatory bodies – but a final act was needed.

"At the end of the day when you're dealing with unjust law and abusive power, the last resource we have is civil disobedience….So now, I'm going to turn around and walk up this hill -- and be the best citizen I can be," said the biochemist with emotion. She then promptly walked across the police line to her arrest before an array of TV cameras and photographers. (She intends to teach a university class in civil disobedience in January. One expects she’ll have lots of material to work with.)

In many ways, this is all just theatre. During her arrest, the wrist-bound scientist was polite to the RCMP, and so too were the police polite to her in turn. The lead officer even smiled and patted Quarmby warmly on the back as he led her into the police van. She was then driven a few minutes to a golf course, dropped off, and charged with Civil Contempt.

But the effect seemed to have made it even more acceptable for ordinary people to risk arrest too. Many came every day to emotionally cross the police line. They included famed enviro-author J.B. MacKinnon (100-Mile Diet), a librarian, a physician, a business owner, an IT professional, an ecology scientist, parents, retirees, even children. One mom went across with her young daughter. The refrain was often the same: I’m doing this for my kids’ future.

Stealing the “who will be arrested today” show on Nov.26 was 87-year-old Jean McLaren. The frail grandmother, who said she’s been protesting various causes since 1947, prompted RCMP to scratch their heads when she crossed the police tape. Though a small number of the total arrests involved rough-handling by officers to force protesters into compliance, not so with McLaren. She, along with others arrested in the infamous Clayoquot Sound protests of the 1990s, were taken into custody peacefully, with huge cheers from the large crowd gathered on that weekday.

87-years old Jean McLaren crosses police line on Burnaby Mountain last week. Photo by Mychaylo Prystupa.

And a note about the crowds. Though TV cameras could deceptively show only small numbers of people gathered (depending on the angle), the crowds varied from 50 to 800, depending on the day, time, and inclement weather. But most days of the two-week injunction saw some 200, in our view.

The way into the “protest zone” on the mountain was via a roadway, cut off to vehicle traffic by the RCMP, who greeted everyone warmly at the base. The climb up the mountain became a kind of pilgrimage for people concerned about the environmental issues or just plain curious. The beautiful, often misty treed corridor is breathtaking, with the sound of rain water rushing down both sides.

RCMP on the front lines

RCMP treatment of people at the top of the mountain was not always seen as positive, according to some observers. Some disliked the shoving that often went on as officers attempted to push back the crowds. There are allegations even seniors were pushed to the ground. One woman told us the plastic cuffs were tied unnecessarily tight and she and other women had to sit for an hour and a half in a stiflingly hot paddy wagon. Emotions typically flared when citizens stepped up, one by one, to be arrested. Nearly riotous crowds would crush up to the police tape and the wall of yellow-reflective-vested officers to vent their frustration. “Protect the people! Not Kinder Morgan!” was one chant, directed at the police.

But by and large, many people said the RCMP were professional. One 21-year-old RCMP officer woman we photographed was particularly disciplined. She was yelled and sworn at intensively inches from her face. In response, she said calmly, “You have a right to your freedom of expression. But don’t shove me,” and she smiled.

The arrests culminated with a highly symbolic one on Nov.27. The Grand Chief of the Union of BC Indian Chiefs, Stewart Phillip, arrived to fulfill a long-held promise to be arrested if “push came to shove” to stop an oil sands pipeline into B.C. He first gave a press conference on the mountain’s roadway, surrounded by more news cameras than we’ve ever seen him surrounded with.

“I'm here to cross the line and be arrested in solidarity with the 100 people who have chosen as a matter of principle to demonstrate their opposition the Harper government vision of $600 billion development of natural resources in British Columbia," he told the media.

Then the Grand Chief made a long walk, holding the hand of Tsleil-waututh Elder Amy George. She is the mother of Rueben George, who is a leading spokesperson for the Tsleil-waututh's fight against the pipeline and is well known for marching the annual Healing Walk in the Tar Sands, as well as in anti-pipeline rallies in Vancouver. The Tsleil-waututh First Nation, as well as enviro-group ForestEthics, are waging a constitutional challenge to the NEB, to try and slow or stop the Trans Mountain pipeline expansion.

Grand Chief Stewart Phillip just before he was arrested for crossing the police line on Burnaby Mountain last week. Photo by Mychaylo Prystupa.

Accompanied by singers and drummers, Phillip walked deep into the woods of the conservation forest (on a muddy walking path now substantially widened by the weeks of intense public attendance to the mountain) to a borehole drilling site, protected by RCMP officers and police tape. Some 200 people witnessed (including faith groups, reporters, film-makers, First Nations and other citizens) as he approached lead officer RCMP Sgt. Andy LeClair at the police tape. LeClair treated him with great respect, but also advised him of his legal position.

“I'll be standing here in person to take you into custody, and obviously I want to do that with as much dignity as possible," said the Sergeant.

"Appreciate that," responded Phillip.

The First Nations leader then ducked under the tape, to cross into the injunction zone. Some sang a women’s warrior song. The dramatic moment was captured by the Vancouver Observer on video. SFU professor Stephen Collis said it was incredible that an Aboriginal leader of Phillip’s stature would risk arrest to bring greater public attention to the issues.

Charges dropped

But in a stunning legal development, later that afternoon in downtown Vancouver at the BC Supreme Court, the charges against most of the 100-plus protesters were dropped. It turns out, the RCMP police tape around one of the injunction zones was made too wide, so many citizens had not actually broken the law, according to Stephen Collis. It was a technicality, but a huge victory for pipeline opponents. Kinder Morgan had also hoped to extend its injunction a few more days to do further drilling, but that was rejected by the court.

"It was unfortunate the situation on Burnaby Mountain led to arrests," Kinder Morgan told The Vancouver Observer in a statement. "We respect the court's decision related to the charges. We did not have intention of pursuing damages."

Finally, the company’s helicopters and crews removed its equipment from the mountain. The company said in a statement yesterday:

“This morning, Trans Mountain finished removing the final pieces of supplies and equipment from the second of two work sites on Burnaby Mountain.”

“Trans Mountain is confident we have obtained a sufficient level of information from the geotechnical and geophysical work completed over the past week, together with the engineering, geophysical and geotechnical work, and other data already compiled to complete our analysis. The work will be reflected in the December 1, 2014 filing to the National Energy Board (NEB); however ultimately it will be up to the NEB to determine.”

Crowds gathered this weekend on the mountain to celebrate. The Horizons Restaurant, at the top of the mountain, which suffered a loss of business during the protests, is now booked Sunday night with an 80-person reservation of citizens to reflect on the momentous times.

The next major public engagement for the project is expected in early 2015, when the NEB’s public hearings into the proposed pipeline are scheduled to begin. The Vancouver Observer will continue to report on this story deeply. Stay tuned.