Lawyers and witnesses flocked to St. Albert's courthouse Monday for the start of a case involving some 1,600 dead birds in a Syncrude tailings pond.
Prosecutors outlined their case against Syncrude Canada Ltd. at the St. Albert Provincial Courthouse Monday. The oil company stands charged under the provincial Environmental Protection and Enhancement Act and the federal Migratory Birds Convention Act in connection with the death the birds in one of Syncrude's tailings ponds in 2008.
This is the first time that the migratory bird act has been used against an industrial facility, said Adam Driedzic, an observer with the Environmental Law Centre. "It's not just about Syncrude. It's about the power to regulate habitat and the environment and the future of these operations."
Some 1,606 birds, mainly ducks, died on April 28, 2008, when they landed on Syncrude's Aurora tailings pond about 75 kilometres north of Fort McMurray. The incident drew international attention to the oilsands industry.
Syncrude is charged with failing to keep a hazardous substance from contaminating an animal (under provincial law) and depositing a harmful substance in water frequented by birds (under federal law). If convicted on both counts, the company could be fined up to $800,000.
Prosecution's case
The Aurora tailings pond covers 12-square kilometres, said provincial crown prosecutor Susan McRory — a little bigger than Morinville. Birds fly over it regularly, but can also land in it, which is fatal.
"This case is about Syncrude failing in its duty to protect birds," McRory said in court. Unlike other firms in the region, the company had no air cannons deployed on its tailings pond when the birds landed. She alleged this lead to the death of about 1,600 birds. "The number of birds is important, as it speaks to the degree of negligence."
Federal crown prosecutor Kent Brown presented a simple argument: Syncrude deposited a substance harmful to birds in waters frequented by birds, resulting in dead birds. Syncrude could not argue that it did its best to prevent the deaths because it did not have its bird deterrents deployed in a timely manner, he continued; even if it had done so, they still would have deposited a harmful substance (tailings) in water (the pond).
Defence counsel Robert White opened the trial by asking Judge Ken Tjosvold to take himself off the case, arguing he could be biased as he'd worked with McRory at Alberta Justice.
Tjosvold declined. While he had worked in the same department as McRory, he said, he did so 20 years ago, and could not recall any case when he worked with her. No reasonable person would suspect bias in this case, he concluded.
White next argued that the prosecution should drop one of the two charges against Syncrude as they both dealt with the same event. "There is, in law, essentially no difference," he argued, and a defendant cannot be convicted of the same crime twice. He admitted that he had no legal precedents to back up his argument.
640 football fields
As of press deadline on Tuesday, the court heard from the first two witnesses, of what will be many, over the nine-week trial.
Lowell Lyseng, who works with the province's Sustainable Resource Development department showed how, starting in 1994 the tailings pond had grown until, by 2008, it was the size of 640 Canadian football fields.
Todd Powell, a senior wildlife biologist with the province, testified he received an anonymous call about the incident on April 28, 2008. After calling the company, he and several other provincial officials drove out to the site, arriving around 5 p.m.
When he arrived on scene Powell could see hundreds of dead and dying ducks. While leaving the site, Powell said he told Syncrude workers they had to do something quickly to get the ducks out of the water.
Syncrude is challenging Powell's testimony regarding what the employees told him. The court heard the evidence, but its admissibility will be decided Thursday.
On the second day of his testimony Powell showed photographs and videos depicting the scene, including several ducks struggling to stay above water. The ducks were mired in the heavy bitumen and eventually pulled to the bottom.
Outside the courthouse White urged the public not to jump to any conclusions and said evidence would be coming forward explaining how the terrible situation took place.
"Something happened that day and I know what it is and as the evidence unfold you will as well."
He said the company agreed that the incident was tragic, but it was an accident not a crime. "This is not a callous company, but a mistake was made."
He also said the province spent much more time documenting the incident than trying to mitigate it.
The trial continues today and tomorrow and will starts again on Monday.
