Alberta Environment rejected Syncrude’s waterfowl protection plan just days before more than a thousand birds died on that company’s tailings ponds.
Carrie Nugent of Alberta Fish and Wildlife was one of several people called to the stand this week at the Syncrude trial in St. Albert.
Syncrude Ltd. has been charged under the provincial Environmental Protection and Enhancement Act and the federal Migratory Birds Convention Act in connection with the deaths of about 1,600 birds on the Aurora tailings pond in April 2008. If convicted on both counts, the company could be fined up to $800,000.
Nugent, a wildlife biologist, told the court that she evaluated Syncrude’s proposed waterfowl protection plan in January 2008 to see if it met provincial requirements. It did not.
“Much of the wording was vague or difficult to understand,” she said. Nor did the plan deal with the issue of wildlife habituation — a problem where birds get used to noise cannons and scarecrows, making them ineffective.
She also found that the company had planned to put fewer deterrents on its tailings ponds.
In 2002, the company used 14 people, 150 scare cannons and 100 effigies to keep birds off its Mildred Lake tailings pond, which covered 17 square kilometres. The plan she examined would have had just eight people, 67 cannons and 27 effigies on both the Mildred and Aurora ponds, which together covered 29.2 square kilometres.
She recommended that the plan be rejected as a result. “At this point, we don’t have a plan from Syncrude we deem adequate,” she said.
Alberta Environment sent Syncrude a letter informing them of this rejection on April 18, 2008, Nugent said. Most of the 1,600 ducks landed and died on the Aurora pond 10 days later.
Nugent also noted that this was not the first time that Syncrude had seen a spike in bird deaths on its ponds — roughly 600 had died around 1979. That far exceeds annual death counts, which are usually less than 50, according to testimony from Albian Sands and Suncor officials.
Due diligence examined
Nugent was one of a string of witnesses questioned this week on the subject of due diligence — a principle that legal experts predict Syncrude will use to defend itself. To use this defence, the company will have to convince the court it had taken all reasonable steps to keep toxins in its tailings ponds from getting in contact with birds.
Wayne Spencer, a retired enforcement officer with the Canadian Wildlife Service, said in court that he repeatedly emphasized to companies such as Syncrude the need to “maintain diligence” when it came to bird deterrence operations.
“We very emphatically emphasized the need for a deterrence program,” he said. “They [the oilsands companies]had to do everything and anything to make sure those deterrents were in place and working.”
The tailings ponds would be “very inviting to all birds, including waterfowl,” Spencer said, and would have been next to the Athabasca River, a major bird corridor. Death would be imminent for any bird that landed in the pond.
Provincial Crown prosecutor Susan McRory has previously claimed that Syncrude did not have its bird-deterring noise cannons deployed when the approximately 1,600 birds died in 2008.
Albian Sands has used an on-demand radar-based deterrent system for years to avoid bird habituation, testified Arthur Dupuis, a wildlife specialist with the company. The system uses radar to fire scare cannons only when birds were over a tailings pond.
Dupuis and Nugent both referred to a 2005 paper in the Journal of Applied Ecology that found this on-demand system to be better at scaring birds than existing ones, which fire cannons at random or set intervals. Colleen Cassady St. Clair, one of the authors of that paper, is scheduled to testify at this trial in late April.
The trial itself is expected to last a couple of months. Most of the next two weeks have been dedicated to 24 mini-hearings to determine if certain witness statements can be accepted as evidence.