Syncrude has been found guilty of two offences relating to the large duck kill of 2008. That April, 1606 migrating ducks died after landing on the toxic tailings pond of the huge Aurora tar sands mine. A member of the Sierra Club laid the original charges, another vindication for private prosecution.
Syncrude was charged with:
- failing to store a hazardous substance in a manner that ensured that it did not come into contact with any animals, contrary to s. 155 of Alberta’s Environmental Protection and Enhancement Act and
- depositing a substance harmful to migratory birds in an area frequented by migratory birds, contrary to s. 5.1(1) of Canada’s Migratory Birds Convention Act. This is a federal statute to fulfil Canada’s international obligations under the Migratory Birds Convention.
In April, Judge Tjosvold dismissed Syncrude’s nonsuit motion. Syncrude had argued that it could not be convicted of the provincial charge because the ducks came to the tailings pond, not the tailings pond to the ducks. Second, Syncrude argued that the ducks didn’t “frequent” the ponds. Third, Syncrude argued that it was impossible to keep all ducks away from the ponds, which it had been specifically authorized to build by the province, and that strict application of environmental laws would prevent all development of the tar sands. Judge Tjosvold found the first two arguments invalid, but invited Syncrude to prove that it had used due diligence to keep the ducks from the pond.
Now, Judge Tjosvold has decided that Syncrude did not use due diligence to deter the ducks, because its deterrents were not employed “early enough or quickly enough”. In fact, the court heard evidence that Syncrude had cut back on staff and resources devoted to keeping birds off its ponds, so that they could not do their job properly. Bad weather made things worse, but did not excuse the entire failure.
In August, the judge will determine whether Syncrude can be convicted of both charges, or only one; Syncrude argues that conviction on both would be barred as “double jeopardy” under the Kienapple rule. Only after that will Judge Tjosvold determine the sentence that should be imposed, which could be a substantial fine.
Meanwhile, Premier Ed Stelmach said he plans regulations to slash the amount of liquid tailings that oil miners generate, which end up in the toxic ponds.