It was bad weather that caused thousands of birds to die on Syncrude's tailings pond in 2008, argued the company's lawyer, and there was no way those deaths could have been prevented.
Defence counsel Robert White made his final arguments Wednesday in St. Albert Provincial Court. His client, Syncrude Canada Ltd., is on trial in connection with the deaths of about 1,600 birds on the Aurora tailings pond on April 28, 2008.
Syncrude has been charged under Sect. 155 of the Alberta Environmental Protection and Enhancement Act for failing to keep a hazardous substance from contaminating an animal, and under Sect. 5.1(1) of the Migratory Birds Convention Act for depositing a substance harmful to migratory birds in waters or an area frequented by such birds.
White argued that an unforeseeable combination of heavy snow, warm weather and frozen water caused the bird deaths.
Heavy snow followed by warm weather produced quicksand-like conditions around Aurora that interfered with the placement of bird deterrents, White argued. The pond was also the only piece of open water around at the time, which he said was unprecedented. These conditions did not stop Syncrude from deploying deterrents on the nearby Mildred Lake pond, he said, but that pond was more easily accessed.
"Syncrude didn't make it snow," White said. "Syncrude didn't raise the temperature."
And it did not freeze rivers and lakes in the region. "If any one of those three things had not happened, this would have been a year like any other."
Syncrude should be acquitted of all charges as a result, White said. "Under the circumstances that presented themselves, there was nothing that could have prevented those ducks from coming down."
Crown prosecutors have previously argued that Syncrude failed to protect birds because it was late in deploying its deterrents and didn't have the necessary resources, and not because of the snowstorm. The company had also been warned two weeks prior to April 28 that birds were on the pond.
Dictionary defence
White argued that the Crown had misinterpreted the meaning of the laws it used, citing the Oxford English Dictionary as evidence.
The provincial law requires Syncrude to "ensure" birds stayed off the pond, but "ensure" means "to make certain" in the dictionary — an impossibility, White argued, as deterrents are not 100 per cent effective. The law also deals with the "storage" of hazardous substances, which didn't happen at Aurora — the tailings were disposed of, not stored (which implies keeping for later use).
The federal law requires a hazardous substance to "come into contact" with a bird, White said, which did not happen as there was no "hitherward motion" by the tailings towards the birds — the birds landed in the tailings. The pond was not an "area" frequented by birds, as "area" refers to the Earth's surface. "The pond is not an area. It is not on the surface of the Earth."
A conviction in this case would leave oilsands companies no choice but to shut down or break the law, White argued, as it would effectively outlaw tailings ponds. White argued that the law required companies to keep birds off the ponds at all times, which he said was impossible.
White raised these arguments earlier in the trial when he tried to convince Judge Ken Tjosvold to throw out the Crown's cases. Tjosvold rejected them.
Hole in regulations
Kate Saunders, a lawyer on White's team, pointed out that Syncrude had met all provincial requirements to run the Aurora pond even though its waterfowl protection plan had been rejected. Provincial rules required Syncrude to submit and implement such a plan, but did not require the plan to be approved.
This points to a gaping hole in the province's regulation of the oilsands, said Mike Hudema, speaking outside of court for Greenpeace. Companies can meet provincial rules for bird protection even if their protection plans don't work.
"It provides no protection," he said. "The fact that the Alberta government is allowing corporations to get away with this needs to be severely questioned."
He also criticized the federal government for allowing tailings ponds even though, according to federal prosecutor Kent Brown, they break federal law.
Tjosvold said he would deliver his verdict on June 25.
