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Conviction in ducks case could open oilsands to flood of prosecutions: Lawyer
News Articles | Edmonton Journal | Darcy Henton | April 29, 2010
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ST. ALBERT, Alta. — A conviction on federal and provincial charges stemming from the deaths of 1,600 ducks on a toxic oilsands tailings pond could spark a flood of private prosecutions against oilsands companies, a lawyer for energy giant Syncrude Canada said Thursday after a judge rejected his motion to dismiss the case.
Robert White told reporters the federal Migratory Birds Convention Act makes tailings ponds illegal so a conviction could open the door to environmental groups laying multiple private charges.
“If we’re convicted because we have a tailings pond and we have a tailings pond . . . there’s nothing to prevent Sierra or Greenpeace or anybody else from filing a prosecution,” White said.
He equated it to being parked in a no parking zone. He said as long as the vehicle is there, an offence is being committed and the owner could come back to find multiple tickets on his windshield.
“That’s why I said industry can’t carry on,” he said. “It was not an exaggeration because anybody can prosecute us any day. The Crown might say: ‘Well, we won’t,’ but that doesn’t bind Sierra or Greenpeace or any other citizen, and that’s a huge concern.”
Syncrude was charged under the Alberta Environmental Protection and Enhancement Act for failing to prevent hazardous substances from coming into contact with wildlife.
It was also charged under the federal Migratory Birds Convention Act for depositing a harmful substance in waters or an area frequented by migratory birds.
Greenpeace climate and energy campaigner Mike Hudema said environmental groups can take that approach regardless of whether there’s a conviction in the duck case. He noted it was the Sierra Club that filed the initial charges against Syncrude over the April 28, 2008 duck incident.
“I would say the door is already open, but I think the federal prosecutor definitely widened the door when he argued the tailings lakes themselves, because of their toxic nature, violate Canadian environmental legislation,” Hudema said. “I do think you will see environmental groups, affected downstream community members and other people concerned about protecting our environment use private prosecutions to hold these companies to account because we haven’t seen the governments do that.”
Hudema said he thought it unlikely a conviction in the Syncrude case would cause the industry to shut down as White suggested, but he said it will add weight to private prosecutions in the future.
White had asked the court to dismiss the case on the basis that the Crown had failed to prove the essential elements of the offences, but Provincial Court Judge Ken Tjosvold ruled Thursday that there is sufficient evidence to proceed with both charges.
While he agreed with White that birds will land on tailings ponds regardless of the best deterrent systems, he rejected the argument that the application of the law will prevent access to the oilsands.
“The provincial law does not require that Syncrude perform the impossible,” he said in his 16-page ruling. “If Syncrude takes all reasonable steps to prevent contamination of birds in tailings ponds it cannot be convicted . . . even if birds are contaminated in the ponds.”
He said the defence of due diligence is available by virtue of case law for the federal charge as well.
Provincial Crown prosecutor Susan McRory said in her closing argument Thursday that there was no evidence to support Syncrude’s contention that it was late in deploying the bird deterrents because of a late spring snowstorm.
She rejected the argument that the incident was unforeseen, an act of God or beyond the control of Syncrude, noting that two other oilsands companies, Albion Sands and Suncor, both had their bird deterrents deployed well in advance.
“In contrast to the other companies in the area who had policies and procedures in place to ensure an early deployment, in the year before the alleged offence Syncrude had reduced staff, days of operation and their inventory of equipment.”
McRory said employees told investigators they were called in to work later in the year than usual and didn’t have the necessary manpower or vehicles to deploy scarecrows and noise cannons. And while the company claimed it staffed the bird deterrent unit seven days a week, investigators later discovered the employees only worked four days a week, she said.
The prosecutor noted Syncrude’s own employees noticed birds landing on the company’s Aurora tailings pond 11 days before the incident and called for the bird deterrents to be deployed, but nothing was done.
“You have a situation where there’s a complaint made April 17,” she told the judge. “You have a failure to respond to that complaint. You have what I would suggest is a system that is incapable of responding . . . because they don’t work weekends.”
White told reporters that due diligence requires foresight and the company could not have expected the incident because it had a 30-year period of successful bird deterrence.
He said it would have “been nice” to have had the bird deterrents deployed because then the company wouldn’t have been charged, but he argued it would not have saved the ducks from dying.
“It would not have kept the ducks away,” he said. “This was the only water these birds could land on and if everything had been deployed and banging, the Crown has not proven beyond a reasonable doubt that these birds wouldn’t have landed.
“Where would they go? There was nowhere else to go.”
White said the only other open water nearby was Syncrude’s Mildred Lake tailings pond “but we had deployed our cannons at Mildred Lake.”
“That was it,” he said. “Land here or nowhere.”
Syncrude has opted not to call any witnesses for the defence. White said he plans to make his closing argument Wednesday.
Tagged with: ducks, tailings ponds, migratory birds convention act
