The oilsands industry is “doomed” if Syncrude is convicted in connection to dead birds on its tailings pond, says the company’s lawyer. What’s more, the province would be complicit in the crime.
The trial of Syncrude Ltd. rolled on in St. Albert provincial court Wednesday. The oilsands giant is charged under federal and provincial law in connection to some 1,600 birds that died on its Aurora tailings pond on April 28, 2008.
Robert White, the lawyer for Syncrude, asked Judge Ken Tjosvold to throw out both charges because the Crown had failed to prove its case.
The provincial law, Sect. 155 of the Environmental Protection and Enhancement Act, deals with leaks or seepage of substances from storage, he argued, and no such leak has occurred here. “We are being prosecuted under a section that has nothing to do with the facts at hand,” he said.
The federal charge, Sect. 5.1(1) of the Migratory Birds Convention Act, deals with areas frequented by migratory birds. Birds do not frequent the tailings ponds, White argued — they fly over them, but don’t land on them unless there’s no other open water available.
He also argued that based on the grammar of the provincial law, the Crown must prove that the toxic substance, tailings, actively made contact with the birds in question. “The hazardous substance is that which must do the bad deed,” he said, which isn’t what happened — the birds landed in the substance, not the other way round.
To say otherwise would mean the end of the oilsands industry, White said. As no deterrent system is perfect, any bird could land in a tailings pond and cause its owner to break the law — even if they have a permit to operate the pond.
A guilty verdict would effectively outlaw tailings ponds and make oilsands extraction impossible, White said. “If Syncrude is guilty of this crime, the government is complicit and the industry is doomed.”
Absurd argument, says Crown
This is why Syncrude has put so much effort into fighting these charges, White said outside of court. “We’ve got a permit in our hand that says we can do it [operate a tailings pond], but if we do it we’re going to be convicted of a crime.”
This causes the industry much alarm, he said. “If the Crown can make the statute say what it doesn’t, we’re done.”
A successful conviction would not shut down the oilsands industry, provincial Crown prosecutor Susan McRory said outside of court, as Sect. 155 has the defence of due diligence.
In other words, if a company breaks the law when a bird lands in its tailings pond, it can escape conviction if it can prove it used all reasonable means to prevent that landing.
She also said that Syncrude had been charged under the right part of the act. “Sect. 155 is very clear: a person who has a hazardous substance who stores it or keeps it has to do it in a certain way,” to wit, a way that keeps it away from animals. Spills and leaks fall under a different part of the act.
McRory challenged White’s interpretation of the law in court, noting that it is about a person who stores a hazardous substance and how he or she stores it — not the substance itself. “It is absurd to say that somehow it is the hazardous substance that must do the deed,” she said. “My friend would be saying it is the bird’s own fault for doing this.”
Federal Crown prosecutor Kent Brown said there was ample evidence that the Aurora pond was an area frequented by migratory birds.
“The pond itself is an area that is used by birds every year,” he said outside of court. “That’s why they set the cannons out.” Evidence suggests that birds have frequented this area for the last 10,000 years, he added. “Putting a bunch of tailings there doesn’t change that.”
Bird deaths lowballed
The court heard earlier in the week that Syncrude had done a poor job of tracking bird deaths on its tailings pond.
White cross-examined bird deterrent expert Colleen Cassady St. Claire for about eight hours this week.
In connection with his examination, White read passages from Alberta Environment inspections of Syncrude done in 2009 that suggested the company did not have the access it needed to properly deter or monitor birds on its tailings ponds. Company employees were not seen taking notes when birds were over the pond, White read, and “showed limited knowledge of bird types.”
St. Claire cited these passages, which had not previously been raised by prosecution, as evidence that the company may have “dramatically” underestimated the number of birds that died on Aurora over the years. The monitoring program the inspectors described relied almost entirely on casual observation, she said, and would not be enough to accurately report bird deaths.
Tjosvold will rule on White’s request Thursday. Prosecutors will present final arguments later that day unless the judge throws out both charges.
White said outside of court that he did not plan to call witnesses in this trial, as he had obtained the evidence he needed from the Crown’s witnesses.
War of words
Much of White’s arguments stemmed from the precise wording of the laws in question.
The provincial law is Sect. 155 of the Alberta Environmental Protection and Enhancement Act, which reads, “A person who keeps, stores or transports a hazardous substance or pesticide shall do so in a manner that ensures that the hazardous substance or pesticide does not directly or indirectly come into contact with or contaminate any animals, plants, food or drink.”
The federal law, Sect. 5.1(1) of the Migratory Birds Convetion Act, reads, “No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.”
White argued that “area” refers to the surface of the Earth, so the tailings ponds would not be an “area frequented by birds” as they flew over it. He also argued that they did not habitually land there.