Takaro Case

TIM TAKARO COMMENCES APPLICATION IN B.C. SUPREME COURT TO SET ASIDE TMX INJUNCTION

HEARING SET FOR MARCH 3, 2021, IN VANCOUVER

DOCUMENTS:

Dr. Tim Takaro, a medical doctor and professor of environmental and occupational health sciences at Simon Fraser University, on December 20, 2020, filed an important legal application in the B.C. Supreme Court challenging the appropriateness of an injunction order that has been used for the past three years to prosecute and jail opponents of the Trans Mountain Pipeline Expansion Project (TMX).

This is a long running fight. Over four years ago, on November 27, 2016, the Government of Canada authorized the construction of TMX, a new pipeline that will expand the shipping capacity of an existing line from Alberta’s oil sands to Vancouver’s harbour.

Since then, tens of thousands of Canadian citizens in B.C have challenged the project, raising deep concerns about the climate and the emissions implications of expanding oil sands production; about the infringement of the land rights of First Nations whose traditional territories extend along the entire pipeline route in this province; and also the increased risks that expanded tanker traffic will bring to the marine environment in the Salish Sea and the Fraser River estuary, which surround the approaches to the pipeline’s marine terminal.

Even before the pipeline had been authorized, when the preliminary survey work was being done in the fall of 2014, large crowds of people protested on Burnaby Mountain near the planned TMX West Coast terminus in opposition to the project. Hundreds were arrested in 2014, but the charges were subsequently dropped because the pipeline company had failed to accurately identify the injunction zone.

In March 2018, when construction work on the pipeline was about to start, thousands of people again gathered at the TMX West Coast terminus and on Burnaby Mountain, relying on peaceful civil disobedience to halt or delay the project, and to direct public attention to the unfolding climate catastrophe. The owner of the pipeline, a corporation called Trans Mountain Pipeline LLC, obtained an injunction order from a judge of the B.C. Supreme Court, which barred protesters from stepping into a prohibited zone of land adjacent to the planned construction.

Injunctions have long been used as a tool in British Columbia, going back at least 40 years, when they were widely employed to break citizens’ efforts to halt the clear-cutting of the province’s forests. An injunction, with all its punitive power if disobeyed, becomes a fearful instrument to break the will of individuals who seek to challenge industrial projects destructive of the natural world.

Once the corporation obtains an injunction, and if an individual disobeys the injunction order, the government itself (in this case the Attorney General of B.C.) takes over the case, declares the citizen’s conduct to be “criminal contempt of court,” and the prosecution proceeds as a serious criminal charge.

Since March 2018, criminal contempt charges have been brought against over 240 citizens in B.C., using an escalating range of punitive sanctions, which since late 2018 have risen to prison sentences of 28 days and longer for peacefully protesting — by standing or sitting quietly in a chair on a roadway, or in the case of Indigenous land-protectors, performing ritual ceremony for the land.

Dr. Takaro’s application represents a new stage in efforts to engage the B.C. court in an evidence-based examination of the TMX project and its Canadian and global impacts.  His case challenges the injunction order itself.  

An injunction is an exceptional judge-made remedy, issued in this case to a pipeline company to curb anticipated protest and interference with their construction activities. An injunction order offers the company a quick and stripped-down legal procedure that leaves the protester with few opportunities to raise important defences. The sole question becomes whether they were aware that they were sitting or standing in the prohibited zone. Given their severe character, injunctions are described in the law as a “discretionary remedy”.

In a case where there is substantial evidence that a construction project, if it is allowed to proceed, poses a real threat of causing grave and irreparable harm (for example to the environment, or to the livelihood and health of people affected by the project and its consequences), the judge is bound by law to carefully weigh and consider that evidence before granting the injunction.

If evidence of serious impending harm is presented to the court, the law may require that the judge refuse to grant the injunction order sought by the company. In the circumstances of the Takaro application, the relief requested is that the presiding judge set-aside the existing injunction, which was granted in 2018.

So far, no Court in B.C. has been prepared to even consider expert evidence about the seriousness and imminence of the unfolding peril of climate change and the significance of the TMX pipeline expansion project.       

It should be noted that, when the B.C. Court of Appeal in its September 20, 2020 judgment in Gooderham and Nathan v. The Queen ruled that the defence of necessity could not be raised in our case, the three appeal judges unanimously and explicitly declared that whether or not the evidence shows that humanity is now facing an “imminent peril” due to climate change, and however desperate the situation may be, protesters will still not be excused from criminal liability for disobeying the injunction. They refused to consider the scientific evidence. The injunction must be obeyed however severe and exigent the climate peril.  The Court’s rationale was that we had other “legal alternatives”, other than to disobey the law. One “legal alternative” they suggested was to stay home and do nothing. A second legal alternative they suggested was that protesters should make an application to the Court to set aside the injunction order.

Dr. Takaro’s application presents to the B.C. court detailed evidence showing that the continued expansion of sands production facilitated by the TMX pipeline will result in very significant growth in the annual level of Canada’s greenhouse gas emissions, and that the project is incompatible with meeting Canada’s emission reduction commitments under the December 2015 Paris Agreement. He requests that the Court set aside the  injunction.

updated January 23, 2021