Trans Mountain Pipeline ULC v. Misavair

Two individuals were arrested in August of 2018 for ignoring a court-ordered injunction in protest of the Trans Mountain Pipeline expansion project in British Columbia, Canada. Both defendants sought to invoke the defense of necessity, arguing that the proposed pipeline expansion would cause irreparable harm to the climate. The defendant's case was summarily dismissed by the Supreme Court of British Columbia.

Trans Mountain Pipeline
The Trans Mountain pipeline carries crude and refined oil from Albertan mines to the western coast of Canada. Prior to being purchased by the Government of Canada, the previous owner of the pipeline, Kinder Morgan, announced the expansion project in 2012. The expansion would consist of building a second pipeline in parallel to the already existing pipeline to both increase capacity and introduce the ability to transport diluted bitumen. In 2018 the Government of Canada purchased the Trans Mountain Pipeline and continues to own and operate the pipeline through the Trans Mountain Corporation.

History of Disputes
From the outset, the Trans Mountain expansion project was highly disputed amongst government, environmentalist groups, and First Nation communities. After numerous delays and repeated environmental reviews, former Liberal B.C. Premier Christy Clark announced her support of the project in 2017. Following Clark's public announcement the NDP and Green parties of British Columbia announced their intention to form a coalition to take down the pipeline. Later, the 2017 provincial election proved successful for the coalition, defeating the incumbent liberal party. Current NDP Premier John Hogan has publicly denounced the expansion; however, provincial efforts to block the expansion have had minimal success. Hogan conceded defeat in the pipeline battle and acknowledged its legality in early 2020.

Environmentalists are concerned with the possible fallout of oil spills in vulnerable ecosystems, water contamination, earthquakes triggered by drilling along active fault lines, and tank fires that may be caused by the construction and expansion. In addition, opponents of the project highlight the disconnect between prioritizing the transition away from fossil fuels to support the environment and further expanding pipeline capacity.

Both opposition and support for the pipeline also exist amongst First Nations communities. The proposed expansion travels through First Nation lands, with many leaders publicly denouncing the project for wrongly invading First Nations lands.

Burnaby Protests
In early March 2018, following multiple occasions of protestors blocking the entrance to the Burnaby Terminal, a construction site along the expansion project in B.C., an injunction was granted forbidding those involved in the protests from impeding construction of the legal pipeline expansion. Jennifer Nathan and David Gooderham, defendants, were named in this injunction. Later in March, Ms. Nathan admitted to being among 60 individuals who intended on disobeying the injunction. She was arrested for blocking access to the Burnaby Terminal. In August, Mr. Gooderham was similarly arrested for blocking access to a different construction terminal. They were both charged with contempt of court for disobeying the injunction. Both individuals were aware that construction of the pipeline was lawful at the time of their arrest.

The defendants, or applicants, sought to raise the common law defence of necessity. Further, the defendants sought to invoke s.7 of the Charter of Rights and Freedoms, by arguing that the expansion constitutes state action threatening protected citizens' rights to a stable climate. J. Affleck of the Supreme Court of British Columbia presided over the case. He was requested by all counsel to conduct a Vukelich hearing, in which he dismissed the applications of Mr. Gooderham and Ms. Nathan.

Relevant Laws and Principles

 * Vukelich Hearing


 * Defence of Necessity


 * Section 7 of the Charter of Rights and Freedoms

Ruling
In December of 2018 J. Affleck summarily dismissed the applications in the Vukelich hearing for lack of reasonable prospect of success. J. Affleck's decision rested on the applicants failing to meet the conditions of necessity required to invoke that defence. Necessity requires:
 * 1) The Peril, Danger and Harm are Unavoidable
 * 2) The Absence of Reasonable Legal Alternatives to Disobeying the Injunction
 * 3) Proportionality Between the Harm Inflicted and the Harm Avoided

In his analysis, J. Affleck found both conditions 1 and 2 were not met. Canadian jurisprudence on condition 1 requires "clear and imminent peril", otherwise clarified by the Supreme Court of Canada in R. v. Latimer to mean: "the peril must be on the verge of transpiring". The applicants sought to introduce evidence of rising global temperatures and the inherent connection with climate change; however, J. Affleck noted that temperatures have been rising for decades. He argued that government, private industry, and citizens can take societal measures to curb climate change, and this takes the consequences of the impending peril outside the bounds of "virtual certainty" and into the realm of "foreseeable or likely". This condition does not satisfy the common law requirement of the peril being unavoidable.

J. Affleck also found the applicants submissions on condition 2 unconvincing. He noted that no effort was made by the applicants to dispute the injunction in court. Without clearly exercising the alternative, legal, means available to the applicants, the second condition was deemed unsatisfied. Condition 3 was not discussed in J. Affleck's decision as a result of his previous two conclusions.

Lastly, the Charter submissions were dismissed on the account that the applicants invocation of s.7 was misconceived. The applicants sought to broaden the court's responsibilities from determining guilt and innocence of the defending parties to critiquing federal policy. J. Affleck argued that to entertain the s.7 applications in the manner sought by the applicants, the trial of the defendants would be transformed into a "inquiry into the wisdom of federal government involvement with the enhancement of the Trans Mountain Pipeline; the extent and nature of the impact of the petroleum transported through that intended pipeline on climate change, and its potential threat to human life." J. Affleck wrote this was not the role of the court under these circumstances.

The applicant's appeal to the Court of Appeals of British Columbia was dismissed in 2020.

Takeaways
The Supreme Court of British Columbia's decision, and consequent dismissal by the Court of Appeals of British Columbia, are in agreement with the jurisprudence on common-law necessity. Climate change is not seen in this context as an "inevitable peril" that will cause imminent harm. Further, J Affleck's ruling is a warning to those trying to broaden the scope of contempt trials. Whereas the reason for disobeying the injunction was the opinion that said injunction, in effect, constitutes public policy encouraging the construction of an argued climate-change-accelerator, that policy was not on trial before the courts. Rather, the defendants actions were, and these actions were deemed illegal without sufficient justification for ignoring the law.

Links

 * Climate Case Chart Summary


 * Supreme Court of British Columbia Ruling


 * Court of Appeals of British Columbia Ruling