A St. Albert judge has found Syncrude guilty on both counts for failing to keep birds off its tailings pond.
Judge Ken Tjosvold delivered his verdict in the trial of Syncrude Canada Ltd. in St. Albert court Friday. The oilsands company has been charged under federal and provincial law in connection with the deaths of about 1,600 birds on its Aurora tailings pond on April 28, 2008, and has been on trial since March.
Syncrude had been charged under Sect. 155 of the Alberta Environmental Protection and Enhancement Act for failing to keep a hazardous substance (tailings) from contacting an animal (birds) and under Sect. 5.1(1) of the federal Migratory Birds Convention Act for depositing a substance harmful to migratory birds in an area frequented by those birds.
Tjosvold found that Syncrude had not taken all reasonable steps to prevent the death of the birds. The company could have had well-documented procedures and trained staff to deal with the possibility of a snowstorm, such as the one that contributed to the birds landing on the pond, but it did not. Instead, it cut back on staff and equipment, putting itself in a position where it could not take all reasonable steps to prevent the birds from landing.
"Due diligence does not require clairvoyance," he said. "It should have been obvious to Syncrude that deterrents should be deployed in the spring as early as reasonably possible."
Instead, the company did not start deploying until April 14, and did not have any scare cannons on the Aurora pond by April 28. As a result, the company could not claim the defence of due diligence for these charges.
"I have concluded that the Crown has proven beyond a reasonable doubt that Syncrude has committed the acts described in the charges," Tjosvold said in court. "Today, I have found Syncrude guilty of both counts."
It's a start, says critic
Mike Hudema of Greenpeace, speaking outside of court, approved of the judge's decision. "This case is going to send a message to a lot of people," he said, and vindicates many of the criticisms his group has made of the oilsands industry.
This case has been very hard on Syncrude and its employees, said company spokesperson Cheryl Robb. "No one wants to go to work and harm the environment." Syncrude has now upgraded its bird deterrent plans with more staff, year-round deployment and a radar system.
She said her company would have pleaded guilty to another charge, but fought this one out of fear that it would set a bad precedent. "These ponds are government-approved facilities that are essential to our operations," she said, adding this verdict could open oilsands companies up to more private prosecutions.
Those prosecutions would continue to come so long as the government failed to enforce its own laws, Hudema said. "The government has continued to cut the enforcement and monitoring budget in this province since 2003, which makes events like this far more likely to happen," he said. "They've let corporations monitor and enforce themselves and that's simply not acceptable."
Defence lawyer Robert White said that he would advise Syncrude to appeal the verdict.
Sentence to come
Tjosvold held off sentencing Syncrude because of an unresolved question of double jeopardy.
White argued early in the trial that Syncrude could not be convicted of breaking both the provincial and federal acts. "Your honour has found that Syncrude killed these birds in two separate ways," he said in court — once by depositing a substance, and once by failing to keep it from contacting birds. As you can't be convicted twice for the same crime, he argued that the Crown should drop one of the charges.
Tjosvold will consider this argument when the trial resumes on Aug. 20. Once he does, he will turn to the matter of sentencing.
Prosecutors Susan McRory and Kent Brown did not indicate what sort of sentence they would be seeking in this case, but did say they were not seeking jail time — an option under the federal law.
Syncrude could be fined up to $500,000 under provincial law and up to $300,000 per bird under federal law. McRory has indicated that she would seek an alternative sentence under provincial law.
