Syncrude has fought the two charges ever since they were laid, attempting to have the judge removed
early in the trial. The next strategy the corporation took was to ask for one of the charges to be dropped altogether, saying it was unfair for the corporation to face two charges
, one from Alberta, the other from the Government of Canada. Judge Ken Tjosvold issued his ruling Friday, finding Syncrude guilty of both charges. Syncrude will most likely appeal the ruling.
Judge Tjosvold has not decided on whether to have the corporation convicted of the two charges, however. Tjosvold found Syncrude guilty mainly because the evidence entered in court demonstrated that Syncrude had cut staff and spending on monitoring the tailings ponds. Syncrude blamed a surprise spring snowstorm for the deaths of the ducks. The Globe & Mail
reported Tjosvold had said
"... Syncrude did not take reasonable steps to prevent the birds from landing on its pond.
“Syncrude had in previous years cut back substantially on a number of deterrents. Staff had also been reduced,” Judge Tjosvold said in finding the company guilty of both charges it faced - a provincial charge of failing to prevent a hazardous substance from coming into contact with wildlife, and a federal charge of depositing a substance harmful to migratory birds.
“It should have been obvious to Syncrude that deterrents should be in place as early in the spring as possible,” Judge Tjosvold said. “Syncrude did not deploy the deterrents early enough or quickly enough.”
Syncrude was found guilty of "Allowing hazardous substances to contact animals counter to s.155 of Alberta’s Environmental Protection and Enhancement Act (EPEA)" and "Depositing hazardous substances in an area frequented by migratory birds counter to section 5.1 of Canada’s Migratory Birds Convention Act (MBCA)." The Alberta Environmental Law Centre
has a breakdown of the legal points of the case.
If both convictions are upheld, Syncrude could face a total of $800,000 in fines.
Environmental organizations are celebrating the ruling. The Sierra Club of Canada
issued a press release saying
“It is great to see Syncrude charged as guilty under federal and provincial laws," said Sheila Muxlow, Interim Director of Sierra Club Prairie. "I just hope the federal and provincial governments see that it's time to shut these projects down and begin the transition towards a clean, green, renewable energy economy."
The verdict concludes a nine-week trial launched against Syncrude when 1600 ducks died after landing in a toxic tailings pond near Fort McMurray in April 2008. As part of Sierra Club Canada’s policy to ensure that environmental laws are properly applied across the country, the Club’s Prairie chapter filed a private prosecution against Syncrude in January 2009. The embarrassed Canadian and Albertan governments then took over the case, charging Syncrude with failing to employ measures to protect the birds as required by federal and provincial law.
“This has to be a first,” said John Bennett, Executive Director of Sierra Club Canada. “A lot of people will be shocked to learn it's possible to violate Alberta's environmental protection laws. It certainly will be news for the oil companies.”
Syncrude had argued, through its lawyer, that a ruling of guilty would effectively shut down the oil sands industry, reported the Edmonton Journal
. The Globe & Mail
"... Mr. White argued that because the tailings pond was licensed, a guilty verdict on either charge could spell doom for the oil sands because even properly licensed ponds would be in violation of environmental laws."
That assertion was reiterated in a press release
issued by Syncrude about the ruling. CEO Tom Katinas said
“This is a significant decision and it is important that we take the time to decide our path forward. Our decision to go through a lengthy and difficult trial wasn’t about the fine. As we said in court, we are deeply concerned that the judge’s decision on these charges sets a precedent that could have serious ramifications on Canada’s mining industry.”
The federal charge, in particular, perturbs the petroleum corporation CEO.
"The use of these charges could have serious ramifications for the Canadian mining industry because it challenges the legality of settling basins. This leaves Syncrude and other industrial facilities open to private prosecutions and business and operational uncertainty, even if the federal and provincial governments do not file charges. Under today’s technology, settling basins remain a critical environmental component of the operation since they permit the storage and recycling of process water, thereby reducing the use of fresh water."
Syncrude representatives also emphasize that Syncrude
has changed how it monitors its tailing pond to prevent such an incident from happening again.
"... We sincerely regret the incident and resolve to prevent it from ever happening again. We have enhanced our waterfowl and duck protection program with additional resources and revised protocols to discourage waterfowl from tailing ponds areas."
Alberta NDP Environment Critic, Rachel Notley, issued a statement
Friday saying the Albertan government bears responsibility in the deaths of the ducks along with Syncrude.
“The real crime here is that for the last 36 years – since my dad first raised concerns about birds landing on tailings ponds – Progressive Conservative governments in Alberta have allowed tailings ponds to grow 50-fold, while deliberately ignoring monitoring and enforcement standards."
Calling the Alberta government "gutless," Notley called for stronger regulation of the oil sands, saying
"Ed Stelmach’s priority is to make oilsands operators happy, not to safeguard Alberta’s environment and Albertans. People want this government to implement and enforce stronger regulations for oilsands development.
... If these companies are allowed to continue operating like BP North, we could face an environmental disaster so great this duck tragedy will pale by comparison.
If we have learned anything from the catastrophic oil spill in the Gulf of Mexico, it is that industry cannot be allowed to police itself..."
Notely wasn't saying anything new. The Pembina Institute
had already found that most of the oil sands operations in Alberta are not in compliance with Alberta requirements for tailing ponds in a report titled Tailings Plan Review