The Canadian division of Texas-based multinational energy giant Kinder Morgan is seeking to get some money from anyone who gets in the way of its Trans Mountain pipeline expansion project, the company indicated in legal papers to be reviewed on Wednesday by B.C.'s Supreme Court.

The company has been trying to get construction underway on the west coast oil pipeline expansion project, despite fierce opposition from First Nations, local governments and others in British Columbia. But it says that recent protest activity has been blocking access to construction sites in Burnaby B.C. "almost every day" since Nov. 30, 2017, causing the company to "suffer significant harm."

The claims made by Kinder Morgan in court contrast starkly with the message that the company's executives have been giving shareholders in recent months.

If built, the Trans Mountain expansion would triple the capacity of an existing pipeline network, allowing the company to ship up to 890,000 barrels of crude oil per day from Edmonton to a Burnaby terminal in the metro Vancouver region.

Supporters, including the Alberta and federal governments say the multibillion dollar project is key to jobs and new expansion in the oilpatch, while opponents, such as the B.C. government and local First Nations communities say it would push Canada's climate change targets out of reach and lead to dangerous spills.

Kinder Morgan Canada, pipeline, Trans Mountain expansion, protest, Burnaby
Thousands of people came out on March 10, 2018, including Guujaaw, Grand Chief Stewart Phillip, Joan Phillip, Shane Pointe, Robert Nahanee, Rueben George, Chief John Ridsdale, and Chief Dziggott, to make the trek up Burnaby Mountain to demonstrate their opposition to Kinder Morgan's Trans Mountain pipeline expansion project. Photo by Trevor Mack

Kinder Morgan asked the court on March 8 to issue an injunction that would stop a group of Canadian activists from interfering with construction. It has also asked the court to require the protesters to pay for the company's losses and legal fees, arguing that ongoing blockades have been designed to "cause delay and financial harm... with the ultimate goal of stopping the project entirely."

Justice Kenneth Affleck agreed to an interim injunction on March 9 in response to the company's statement of claim, which names 15 different people who are opposed to the project, along with John and Jane Doe and other "persons unknown." The injunction would then be reviewed with the hearing that was slated to begin on Wednesday.

But despite the temporary ruling, thousands of people descended on Burnaby on Saturday to march against the project. They also erected an Indigenous "Watch House" to symbolically keep an eye on the energy company's activities.

Casey Leggett, a lawyer for one of the defendants, told The Canadian Press in an interview last week that the company's claim, which included a proposed 50-metre exclusion zone for protests, was "arbitrary" and "going too far."

Bina Salimath, one of the people named in the claim, said she is taking action to support the community, while she accuses Kinder Morgan of proceeding with its plans for a "very limited number of shareholders."

The claims made by Kinder Morgan in court contrast starkly with the message that the company's executives have been giving shareholders in recent months. #TMX #bcpoli #abpoli #oilsands #climatechange #cdnpoli

"Kinder Morgan has got the political clout, the backing from the system, and the money to go after a working class mom with a kid," she said. "If they want to go after me it speaks more about Kinder Morgan than it does about me. And if the courts allow it, that says more about the system than it does about me."

Salimath added that she had deeply personal reasons for taking the position she has taken against the company.

"My family walks a lot in the forests around B.C., and even in the last 10 years we have noticed a lot being cut down," she said. "We can still hear some frogs croaking and the migrating birds are coming back in the spring. But Kinder Morgan is threatening to cut these trees down. Imagine coming back after work, and your home is gone. For me that is a very strong reason."

In its statement submitted in court, Trans Mountain said it had exhausted all reasonable means of minimizing the effects of the blockades. It also alleged that blockade participants physically obstructed workers by occupying work-zones and forcing work stoppages.

"The Defendants agreed amongst themselves and have acted in combination for the predominant purpose of injuring Trans Mountain through unlawful and/or lawful means," the company said in its claim. "The Defendants either knew, or certainly ought to have known, that their actions, including their participation in and creation of blockades... would injure Trans Mountain. Trans Mountain has suffered injury and loss due to the Defendants' misconduct."

Kinder Morgan, pipeline protest, Trans Mountain expansion, Burnaby, National Energy Board
Representatives of First Nations were prominent at a March 10, 2018 demonstration against Kinder Morgan's Trans Mountain pipeline expansion project. Photo by Trevor Mack

Kinder Morgan CEO Steve Kean said 'main thing' on his mind was route hearings

Kinder Morgan's message from company executives to shareholders has been different in its recent quarterly conference calls last October and in January. In October, executives cheerfully touted progress in securing provincial and municipal permits, noting that progress was "slower than we expected it to be."

One month later, the company filed legal papers with the National Energy Board that frantically warned of massive losses of more than $90 million per month, due to delays that it alleged were provoked by the City of Burnaby.

Then in a Jan. 17 conference call, Kinder Morgan president and CEO Steve Kean told investors that the company was watching for upcoming court and permitting decisions which might interfere with its planning and schedule. But despite some delays, he noted that there was some "good progress" on the file.

This was followed, less than two months later by the company's March 8 statement of claim, listing its warnings about losses caused by protests.

The company made these complaints even though Kean failed to tell investors about any major concerns about protests causing losses, damage or delays. Instead, Kean said that the main thing on his mind in January was getting through National Energy Board hearings to determine the exact route of the pipeline, allowing the company to seize control of the land it needed, in exchange for monetary compensation offered to affected landowners.

"Those are the places where we deal with route objections," Kean told investors on the call. "If we get objections on the route, we get a right of entry first. And then the question becomes what's the level of compensation involved? But first, we need to have the right of entry and then we can determine or reach an arrangement on the compensation level. But the main thing in my mind is we need to see the route hearings progress. And they are."

Economist Robyn Allan, an opponent of the project who has been tracking developments, said that the mixed messages from the company appear to be part of a pattern.

"The construction schedule with the in-service date of December 2019 was totally unattainable and they knew it," said Allan, a former president and CEO from the Insurance Corporation of British Columbia, in an interview with National Observer. "We know they won't start pipeline construction until next summer, so to suggest there is this huge cost because protectors of the public interest have been standing in front of the entrance to the marine terminal is not consistent with the facts."

When asked to explain the apparent discrepancy between its statements to investors that tout progress and its legal filings which warn of losses, Kinder Morgan didn't immediately respond.

Editor's note: This article was updated at 7:45 p.m. ET on March 13, 2018 with new comments by Bina Salimath, a defendant named in the claim. It was updated again at 11 p.m. on March 14 to correct that the temporary injunction has not expired with the start of Wednesday's hearing.

My first thought is, who would want to maintain the right of persons or corporations to launch often frivolous civil lawsuits against defendants who are speaking out on matters of public interest, who are exercising their right of free expression and public participation? Will we now see massive illegal arrests and the kettling of thousands exercising their right to demonstrate strongly against a project that subverts our right to base project decisions based on science? Come on, Prime Minister Trudeau, you still haven’t presented the science backing this pipeline. The imposition of federal emergency powers to override protest has precedent and I am concerned this prime minister has few scruples. He is mostly talk and then acts contrary to his promises and his proclamations of fairness. This repression will destabilize the country. Would it be corporations like Kinder Morgan who do not have social license to endanger our rivers, land, coasts and run rough shod over the rights of First Nations who defend these frivolous civil suits? Public confidence has eroded and will deteriorate completely if companies like Kinder Morgan are legally permitted to launch abusive civil lawsuits against defendants with limited financial ability to match, say, Kinder Morgan's financial might to retain top notch legal council. The emotional costs for defendants faced with this corporate legal juggernaut cannot be over estimated. Justice must not be bought by the highest bidder! A blanket court order supporting Kinder Morgan's assertion that intense public resistance to this unjust, dangerous pipeline has cost them millions does not stand up to scrutiny. Many of the delays in this project have their origins in Kinder Morgan's disinterest and incompetency (perhaps incompetent by design to force the federal government to over ride municipal and provincial regulations) in following the permitting rules the rest of us have to follow. Market conditions to sell bitumen overseas have never been poorer so it is more than possible Kinder Morgan is attempting to recoup profits that were only possible when oil was $90.00 to $100.00 a barrel. Further, the approval of this pipeline was based on a National Energy Board review supported by a federal government that has massively abused the right of Canadians to an open, fair environmental assessment of this dangerous pipeline. The review disallowed cross examination of evidence presented by Kinder Morgan, intervenors were severely limited in requests for full disclosure of risks and risk mitigation plans. Incredibly, the NEB did not include in the review the full life cycle of green house gas emissions or the inherent and real risk of a catastrophic dilbit spill in our waters. Where then is the administration of justice? The continuing effort on the part of the Trudeau govt. to crush massive public disapproval of this project by a company based in Texas, is tantamount to tyranny. Again, will we now see mass arrests? The hypocrisy of this weak prime minister saying the pipeline enables the government to bring in a credible national climate change strategy to meet our Paris commitments keeping world temperatures from spiraling out of control is transparent and patently absurd. No, jobs and the economy are not issues to be balanced with real efforts to keep our climate livable. A deteriorating climate is and will trump jobs in an industry that is poisoning our world. Sustainable jobs and discontinuing the massive federal and provincial subsidies to the fossil fuel industry are necessary. Now. Justice is not being done here. The national interest is not being supported. We are certainly not living in a democracy based on good judgment and fairness. Shameful.

When asked to explain the apparent discrepancy between its statements to investors that tout progress and its legal filings which warn of losses, Kinder Morgan didn't immediately respond.

The NEB approval of the Trans Mountain expansion came with 157 "Conditions". One of these conditions, Number 6, was that Trans Mountain file with the NEB an updated Commitment Tracking Table at least 30 days prior to commencement of construction, and that this Tracking Table be posted on their website. The most recent Tracking Table on their website is dated 17 July, 2017, and it merely describes measures that TM intends to undertake regarding Aboriginal Engagement. If Trans Mountain has not submitted the Tracking Table indicating that they have satisfied all of the Conditions necessary prior to the commencement of construction, why are their crews in a position to be impaired by protestors. Have they started construction in violation of the "Conditions"?
It might be a worthwhile exercise for National Observer to monitor Trans Mountain's progress in satisfying all of the 157 conditions of the NEB approval.

… I suppose National Observer would print the ‘other side’ to the above “fatal flaw” article…maybe PM Trudeau could pen something for us?

What about Canada’s major banks. At least one bank is a major investor for the Trans Mountain Expansion (TMX) pipeline. There is much being said about the ‘community dislike ’ of the TMX and leads me wondering if the banks did their due diligence before committing investors holdings to that community disliked export plan ? There were no independent risk assessments called for to assist the NEB when evaluating this project ,as proposed ? To no one’s surprise the TMX project, preferred by the wannabe Prime Minister, was eventually approved. Like the major banks, our Prime Minister shows no supporting INDEPENDENT science for his ‘preference’ !

Carl Shalansky, P. Eng. (Retired)
(604) 986-4657

Good article