The Law is an Ass- Rafe on Burnaby citizens' loss to Kinder Morgan

The Law is an Ass: Rafe on Burnaby citizens’ loss to Kinder Morgan

The Law is an Ass- Rafe on Burnaby citizens' loss to Kinder Morgan
Kinder Morgan contractors clash with citizen protestor on Burnaby Mountain (Darryl Dyck/CP)

“If the Law says that”, said Mr. Bumble, “the Law is an ass”.

The good citizens of Burnaby have lost their case against the large international corporation, Houston-based Kinder Morgan, who wish to extend their pipeline from Alberta to Burnaby.

The company sought and received from the Court an injunction to keep protesters from interfering with their work on Burnaby Mountain Conservancy.

Kinder Morgan case harkens back to past injustices

Over the past few months I’ve found myself reading up on legal writing from the past. I’ve become interested in judges of yore and in particular have been reading the famous letters between Sir Frederick Pollock and the great American jurist, Oliver Wendell Holmes.

This has taken me back to my days in Law School, so many years ago, and as I read the decision regarding Burnaby, I thought of England in the Middle Ages when the law had become so hidebound that nobody could get justice.

What had happened is that over the years, the “causes of action”, or the things people could sue for, were further and further restricted and the documentation that one had to use became so technical that the slightest mistake had one thrown out of court. This was so unfair, except to lawyers and judges, that The Lord Chancellor interfered and thus came about the Court of Equity, called the Court of Chancery.

The main principle of this new body of law and courts to enforce it was “Equity will not suffer a wrong without a remedy”.

Just imagine if that laudable principle applied to the Courts today!

Eventually in the late 19th century, the Court Of Chancery, was amalgamated with the Common Law courts, with the principles of equity supposed to remain.

People can no longer sue for their rights

I don’t think there is much doubt that we have once more reached the position where people can no longer sue for their rights.

Surely there has developed the right of people to a clean environment, to Crown Land not being unnecessarily desecrated, a public say when it’s proposed that that it will – to waters being clean and fish being preserved, neighbourhoods being safeguarded, natural beauty being preserved, clean air, and so on.

Yet none of these things are recognized by the law as things the citizenry can enforce in the courts.

“Public Process”, a phrase so adored by Conservatives, is a sham. One only has to look at the National Energy Board, appointed by a Conservative government from Conservatives in the Calgary oil patch and read what the distinguished Energy expert, Mark Eliesen has to say about just what a bad joke they are.

Environmental “Kangaroo Courts”

It’s no different with the Federal-Provincial Environmental Committees looking into so-called “run of river” projects.

With these “Kangaroo Courts” the public is invited and then are treated like children, denied the right to speak their minds or cross-examine witnesses, and then they’re utterly ignored.

Crown land, which is to say the land that belongs to all of us, is administered by the governments – governments clearly in the pocket of companies like Kinder Morgan and other politically-donating companies and they couldn’t care less about honest, decent folks whose great “sin” is to band together to protect where they live.

No “cause of action”

When these neighbours go to court, as we have seen, they’re told they have no “cause of action”. The government doesn’t care because they’re so few in number that their votes won’t matter. Furthermore, by the time elections roll around, there will be many other issues such that these folks and those who agree with them are swamped.

Why can’t people defend what is the theirs just because it isn’t exclusively theirs? The right of the Crown to dispose of rights on Burnaby Mountain is not absolute. As we have seen, through the torturous process of what little democracy we have left, the public could toss the government out and impose their own wishes. Unfortunately, this right is about as easy to enforce as it was to gain access to medieval courts in England.

“The Rule of Law”

It is high time that we, the public, force governments at all levels to recognize this gross distortion of fairness.

One thing is for sure coming out of the Burnaby Mountain situation – there will be more people protesting as time goes on. And good, decent fellow citizens will go to jail so that large corporations can work their wicked and selfish ways.

I notice in the Weekend Sun that the president of an LNG plant proposed for Kitimat is applauding British Columbia for having “The Rule Of Law”. For that, read that he is delighted that “The Rule Of Law” is that he can do whatever he damn well pleases.

From LNG to Kinder Morgan: Citizens rising up

I happen to live on Howe Sound. The citizens from Horseshoe Bay north, led, I might say by First Nations and grassroots community groups, are much exercised about an LNG plant proposed for Squamish. The Clark government, utterly unconcerned about environmental issues and what they consider protesting nuisances, is determined that it will go ahead and the public is determined that it will not. There will be protests and no doubt the usual consequences.

I believe in “The Rule of Law” – provided the law is fair. The law under which we operate with respect to the things that God gave us is totally unfair. If citizens can’t defend that which is their birthright, how can “The Rule Of Law possibly be considered fair?

I applaud the good citizens of Burnaby.

Far from being law breakers, they are, in the best traditions of freedom and democracy, upholding what is right – and God bless them.


About Rafe Mair

Rafe Mair, LL.B, LL.D (Hon) a B.C. MLA 1975 to 1981, was Minister of Environment from late 1978 through 1979. In 1981 he left politics for Talk Radio becoming recognized as one of B.C.'s pre-eminent journalists. An avid fly fisherman, he took a special interest in Atlantic salmon farms and private power projects as environmental calamities and became a powerful voice in opposition to them. Rafe is the co-founder of The Common Sense Canadian and writes a regular blog at

13 thoughts on “The Law is an Ass: Rafe on Burnaby citizens’ loss to Kinder Morgan

  1. At the links below some writing I’ve found useful for understanding 1) the public trust doctrine as it relates to citizen non-violent civil disobedience, & 2) a legal scholar’s argument that all environmental law ought to be based on the public trust doctrine.

    I’ve read Mary Wood’s book and her insights as to the futility of standard ENGO strategy strike me as quite sound. I was a wilderness and parks advocate for a Canadian ENGO for 14 years last century and we’ve been co-opted mostly into corporatist planning processes and roundtables. And continue to be. And I’m using corporatist in the meaning John Ralston Saul lays out in Unconscious Civilization. Not just the influence of big corporations but a poltical ideology and system where groups and government negotiate public policy based on their interests. Legislatures and citizens are subordinate/marginalized.

    Some like T. Berman are still advocating more high-level corporatist negotiations/roundtables/policy forums between corporate leaders and FN’s and ENGO’s as the process solution. I see that as an unreal detachment from the lessons of the last 40-50 years of activist history.

    Sam Gunsch

    1. Would that be the T. Berman who was shilling for Gregor (I hate poor people & increase cop budgets to beat up activists, am owned by corporate development companies, take oil money & pretend to be anti pipeline and green, Jack Boot Juice Hippie) Robertson? That T Berman? Because she abandoned the principles that she held so dear at Claoquot long ago.

  2. The only way to stop these atrocities by large multinationals and our complicit justice system is to band together and show up on site in large numbers. A hundred people they will just laugh at and bully them in the courts. A few thousand not so much. So if you want to stop this atrocity show up and bring your children, spouses, grandparents and encourage your neighbours to do the same. We’re fighting only to have control over our own environment in BC. KM can keep the pipeline they already have but we’ve got to send the message loud and clear that there’s no bloody way they will be allowed to expand. This is our line in the sand moment.

  3. For those interested, my column for for the 24th discusses the absence of democracy in this country and province.



  4. Thank you Rafe Mair – you have a strong voice in BC thank you for using it – God bless the passionate people of Canada – power to you – from a small voice in Kamloops

    1. Thank you so much Rafe Mair for this excellent information. Much appreciated and thanks for all the work that you’re doing. I’m so disappointed in the court decision granting Kinder Morgan access to do as they please on Burnaby Mountain, despite countless voices of local residents showing their distaste. Where is the true democracy here? Certainly not there for the people, and clearly showing that it ‘supports’ corporations with deep pockets. I hope as we, the people, continue to fight this battle, that one day, the environment will be given more consideration in the courts and less-so to whomever has the deepest pockets $, and power.

  5. If KM is already piping Albertbit through BC to the coast via Trans Mountain, where are they getting the diluent and how is it being transported and where does it end up after all is said and done?

  6. I believe I almost choked on my drink when I heard the ruling from the Court on Friday. I believe that Kinder Morgan ( estimated value $90,000,000,000.00) was arguing that it would “suffer greivous financial loss” if the protesters were allowed to remain.
    Excuse me?
    Kinder Morgan is still just drilling for soil samples on Burnaby Mtn. Checking the rock for pipeline suitability.
    Where’s the “greivous financial loss” ? Whats it cost for a drill rig for a few weeks ? $100,000.00? $200,000.00? Chicken feed to a company worth 90 Billion.
    Yes Rafe, the Law IS an ass but dont let Wally Oppal hear you say that!
    When he was still Attorney General and a Judge let a child molster off with probation a news reporter asked Wally if the Judge might have been a tad leinient, and “out of touch” with the publics wishes. Wally turned into a sputtering, outraged “victim”, “How DARE you question the sanctity of our court system.!”
    And Judges wonder why people take the Law into their own hands……Perhaps because whats “Just” and whats “Right” are two entirely different things that only a high paid lawyer for Kinder Morgan can figure out.

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