Environmentalists launched a private prosecution against Syncrude Canada in Edmonton on Wednesday over the death of about 500 ducks in a tailings pond north of Fort McMurray, Alta., in April 2008.

The legal action was brought against the oilsands company on behalf of Jeh Custer, a Sierra Club Canada representative in Alberta.

Custer was in court with his lawyer Wednesday for the first step in trying to get Syncrude prosecuted under the federal Migratory Birds Convention Act.

"We're bringing this forward because this incident is further evidence that pollution from tarsands extraction is making the environment too toxic for wildlife, in this case migratory birds," Custer said.

"It's the regrettable failure of the Alberta government and the federal government to enforce their own environmental laws, meaning that ordinary Canadians must act."

Both the Alberta and federal governments investigated the incident, but there has been no word of whether any charges will be laid.

Private prosecutions are rare but allowed under the Criminal Code of Canada, said Custer's lawyer, Barry Robinson, who works for Ecojustice, formerly known as the Sierra Legal Defence Fund.

"It allows a private citizen to bring a charge, in this case, under a federal act," he said.

The next step is a process hearing in February where Custer and Robinson will present the evidence they have gathered to a judge in provincial court.

"The judge will decide at that point whether or not to issue a summons to Syncrude," Robinson said.

A Syncrude official said the company won't comment on the legal action now.

But the spokesperson said the duck deaths are unacceptable and the company is making sure a similar situation never arises again.

It is estimated that about 500 ducks died in April after the migrating birds landed in the toxic, oil-covered tailings pond, part of an oilsands development. Syncrude usually deploys bird deterrents around the three-kilometre-long pond from spring until fall, but had not put them in place yet.