No ‘irreparable harm’ in pipeline protests, lawyer maintains

B.C. Supreme Court judge expected to grant Trans Mountain injunction

Citizens have a constitutional right to protest the expansion of the Trans Mountain pipeline, even as the company paints what is mere inconvenience as blockades in its quest to get an injunction against demonstrators, a lawyer says.

“The inconvenience, which my friends call a blockade, hasn’t gotten to the level of establishing irreparable harm,” Casey Leggett told B.C. Supreme Court on Thursday.

Leggett, who represents one of 15 people named in a notice of civil claim, read from affidavits presented in court by a Trans Mountain lawyer, saying the company’s security staff noted protesters have sometimes stood peacefully at or near access roads to two marine terminals in Burnaby without disrupting vehicles or workers and left after police arrived.

He said in one case, a woman was seen praying on a road and didn’t engage with security staff while on another day a woman sat in a lawn chair as vehicles were guided around her at slow speed.

Justice Kenneth Affleck said while the first protester’s conduct was unobjectionable, the second woman had no right to sit in the middle of a public road and the police would be justified in removing her.

Affleck also suggested Leggett was cherry-picking incidents that did not involve blockades aimed at stopping work at the Burnaby Terminal and the Westridge Marine Terminal.

Leggett replied that Trans Mountain has done the same and also focused on blockades rather than inconvenience, which he said does not justify an injunction.

Affleck has already granted the company an interim injunction that prevents protesters from coming within 50 metres of the two sites, though Leggett has argued that’s too broad and includes public roads, a trail and private residences.

The judge suggested he will be granting an injunction with a narrower buffer zone, but he asked for input from Leggett, another lawyer representing a second defendant, as well as counsel for Trans Mountain and the RCMP.

Frances Mahon, a lawyer who represents the second defendant, argued that two structures, called Camp Cloud and Watch House, are within the 50-metre perimeter and should also be considered constitutionally relevant.

“Camp Cloud and Watch House are examples of expressive content that are protected by freedom of expression in Canada,” she said, adding a hereditary chief of the Squamish Nation gave consent for Camp Cloud to occupy land that is across the street from the Burnaby Terminal and near a trail.

She said the structure hosts a sacred fire and is of religious significance to the Coast Salish people and is also a place for storytelling.

While a lawyer for Trans Mountain has argued Camp Cloud is a meeting place for protesters intent on blocking operations, there is no evidence of that, Mahon said.

Protests at the two work sites began in November, and activists have vowed to continue opposing the $7.4-billion project that would twin an existing pipeline from Edmonton to Burnaby.