A St. Albert judge rebuffed an attempt this week to get the charges in the Syncrude bird trial thrown out.
Judge Ken Tjosvold rejected an application on Thursday to toss the charges levied against oilsands giant Syncrude. The company is on trial in St. Albert in relation to the deaths of 1,600 birds on its Aurora tailings pond on April 28, 2008.
Robert White, Syncrude's lawyer, asked the judge Wednesday to throw out the charges because the Crown had not proved its case. He based his argument on the wording of the two laws Syncrude had been charged under: Sect. 155 of the Alberta Environmental Protection and Enhancement Act and Sect. 5.1(1) of the federal Migratory Birds Convention Act.
The provincial law requires a person who keeps a hazardous substance, to do so in such a way that it does not "come into contact with or contaminate any animals." White argued that this meant his client could not be charged unless the contaminated substance concerned, tailings, actively contaminated the birds, which did not happen — the birds landed on the tailings, not the other way around.
Tjosvold disagreed. "It seems to me that the ordinary meaning of the term 'come into contact with' does not require the substance to come to the animal," he said. Syncrude's interpretation was also at odds with the law's objective, environmental protection. "The bird is contaminated by the substance whether it moves to the substance or the substance moves to it."
He also rejected White's reasoning for dismissing the federal charge. White argued that the tailings ponds were not "frequented" by birds, as the birds did not habitually land there, so the charge did not apply.
Tjosvold noted the Crown had presented evidence showing that birds did, in fact, frequent the ponds. "That is the whole reason for the deterrence systems."
White had also claimed that the oilsands industry would be "doomed" if Syncrude were convicted on these charges, as there was no foolproof way to stop birds from landing on tailings ponds.
Tjosvold noted that companies could still run tailings ponds despite this risk. "The provincial law does not require Syncrude to perform the impossible," he said — just to take all reasonable steps to keep birds off its pond.
Crown concludes case
Crown prosecutors Susan McRory and Kent Brown then made their closing argument in the case against Syncrude.
Many details of the case are not in dispute, said McRory, the provincial Crown. The Aurora pond contained bitumen that was harmful to birds, and, as shown in pictures, videos and testimony, birds landed in it and died, she said.
Tailings ponds are technically illegal under federal law, Brown said, but are allowed so long as companies show diligence in keeping birds off them. Syncrude did not. "They didn't implement the [deterrent] system in a timely way," he said, which removes the defence of due diligence.
Syncrude was negligent in its duty to keep birds off the pond, McRory argued. Research by the company and its competitors made it clear that the pond was a major risk to birds, especially during spring, and that deterrents had to be in place to protect them.
Despite this, Syncrude did not start deploying them until April 28 — a date even its own employees agree was too late — weeks after the first dead migratory bird was reported on April 3. The company also had significantly fewer staff, scare cannons and effigies available due to cuts, and had no formal schedule as to when and where to put deterrents.
Heavy snow would not have stopped Syncrude from getting its deterrents out on time, she said. Other companies avoided the snow by deploying early, and Syncrude employees said that the snow did not stop them from working on the pond.
But the most damning evidence came from the company's reaction to an e-mail from employee Rick Corcoran on April 17, 2008, McRory said, in which he told the head of the deterrent team that birds were landing in the tailings pond because of a lack of deterrents.
Syncrude did not scramble extra workers in response to this concern, she said. Even if they had, they would not have had the resources for quick deployment: they had one truck instead of four, and didn't work weekends.
More than 1,600 birds died as a result of Syncrude's actions, McRory wrote, which suggests the degree of their negligence. The events of April 28 were not unforeseeable or an act of God, she argued, and could have been avoided by early deployment.
White is set to present his closing arguments Wednesday.
