Images of dead and dying ducks stuck in the bitumen atop Syncrude's tailings pond made headlines after they were submitted as evidence at the oilsands company's trial in St. Albert, Alta., on March 2. (Government of Alberta)

The lawyer for Syncrude said he will ask that all charges against the embattled oilsands giant be dismissed when the trial resumes Tuesday.

Syncrude has been charged under the Alberta Environmental Protection and Enhancement Act and the federal Migratory Birds Convention Act with failing to protect migratory birds from a toxic tailings pond.

Defence lawyer Robert White said Monday he will argue that the prosecution has not proven its case in the April 28, 2008 incident when 1,600 ducks died on Syncrude's Aurora tailings pond in northern Alberta.

The pond collects the byproducts of bitumen extraction from oilsands. The migratory birds got stuck in the toxic sludge of bitumen remnants, clay, sand and metals and sank to the bottom of the pond.

White said the charges facing the company are intended for companies that dump toxic materials into lakes or rivers, not companies that have legal tailings ponds.

"We're containing this stuff in a safe fashion. It can't get out to hurt anybody or anything. The way we're doing it has been approved by government. The wildlife has come and entered into our storage facility and that's not [something] we did wrong," White said.

Crown not surprised by tactic

The prosecution wrapped up its case against Syncrude on Monday, and federal Crown prosecutor Kent Brown said he isn't surprised at White's tactic.

"It's pretty straightforward," Brown said. "[White's] got a very difficult task ahead on a non-suit application. Basically we have to show there is some evidence on each of the elements that a reasonable person essentially would be able to find guilt on, and we think we can do that."

Evidence presented by the Crown during the trial, which began March 1 in a provincial court in St. Albert, Alta., has indicated that adequate deterrents to dissuade birds from using the pond, including air cannons and scarecrows, weren't in place at the time of the incident.

Syncrude officials have long maintained that a spring storm had delayed the erection of such equipment around the tailings pond.

An accident, not a crime

White says what happened was an accident, not a crime.

"The clear wording of the charges are that we permitted this hazardous substance to get loose and contact wildlife, whereas the evidence is that the hazardous substance was contained and for the circumstances that we've heard the wildlife came to the substance," White said.

Syncrude faces one count under Section 155 of the Alberta Environmental Protection and Enhancement Act for allegedly failing to ensure that hazardous substances directly or indirectly not come into contact or contaminate any animals, plants, food or drink.

It is also charged with one count of violating the federal Migratory Birds Convention Act for allegedly depositing or permitting the deposit of a substance harmful to migratory birds in waters or an area frequented by birds.

Syncrude could be fined as much as $800,000.