Oilsands giant Syncrude was found guilty Friday on both environmental charges it was facing in connection with the April 2008 deaths of 1,600 ducks in one of its northern Alberta tailings ponds.
Syncrude was 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.
In a decision delivered to a packed courtroom in St. Albert, Alta., provincial court Judge Ken Tjosvold said Syncrude didn't exercise due diligence in preventing the birds from landing on the water.
"I am convinced beyond reasonable doubt that Syncrude could have acted lawfully by using due diligence to deter birds from the basin, whether or not it was successful in its attempts at deterrence, and it did not do so," Tjosvold said in his written decision.
The judge pointed to evidence presented during the trial that showed Syncrude had reduced staff responsible for its bird deterrent systems because of retirements and had scaled back the number of deterrents it used in the years before the ducks died.
"I will make it clear here that I am convinced beyond reasonable doubt that the cannons were not placed at the Aurora Settling Basin prior to April 28," he wrote, adding later in the ruling that the company did not deploy the deterrents "early enough and quickly enough."
The ducks died April 28, 2008, on Syncrude's Aurora tailings pond in northern Alberta, about 75 kilometres north of Fort McMurray.
After Friday's ruling, Syncrude spokesperson Cheryl Robb said the company was disappointed with Tjosvold's decision. Syncrude has always regretted the death of the ducks and that it has since improved its deterrent systems, she said.
"We have learned from the incident in 2008," she said. "We've made significant changes to our system, because we don't want — nobody at Syncrude, 5,000 employees-plus, nobody wants — to go to work and harm the environment or harm waterfowl or wildlife."
Both the federal and provincial Crown prosecutors said they were pleased with the ruling.
"I think, certainly, the decision today vindicates … [our] position that, clearly, it was appropriate to lay and pursue these charges," said federal Crown prosecutor Kent Brown.
The judgment also is a rejection of Syncrude's argument that a conviction would mean every company operating a legal tailings pond would have to close them down, provincial Crown prosecutor Susan McRory said.
"Due diligence is a defence, and the judge has found that Syncrude was not duly diligent but has reconfirmed that it is a defence available to any corporation to prevent convictions by taking reasonable steps to avoid the offence in the first place," said provincial Crown prosecutor Susan McRory.
More legal arguments to come
While Tjosvold found Syncrude guilty on both counts, he did not enter convictions.
Legal arguments will take place on Aug. 20 about whether convictions should be entered on both counts, because the charges are similar in nature.
Defence lawyer Robert White plans to recommend to Syncrude that the company appeal Friday's decision.
"You appeal for one reason and that's because in your opinion the judgment is incorrect," he said.
The trial, which started on March 1 and wrapped up on May 12, featured some dramatic evidence, including video and still images of ducks struggling in the bitumen that floated on top of the tailings pond.
The Crown argued that adequate deterrents to dissuade birds from using the pond, including air cannons and scarecrows, weren't in place when the ducks died.
Syncrude officials said a spring storm delayed installation of such equipment.
Defence lawyer Robert White argued the charges against Syncrude were intended for companies that dump toxic materials into lakes or rivers, not companies that have legal tailings ponds.
Province lax in enforcement, opposition charges
Opposition politicians and environmental groups said the ruling was a reflection on the Alberta government's monitoring and enforcement practices in the oilsands.
"We have a gutless government which quite frankly missed all the failings that were cited by the judge today because we are cutting our monitoring, rather than increasing it," said Alberta NDP MLA Rachel Notley.
"At the end of the day, if we have learned nothing from the Gulf oil disaster, what we should have learned is that we cannot continue to act like BP North and let industry police itself."
"It's sending a message to the industry that there are serious consequences and they need to meet a standard. The problem is the government does not set a high enough standard for all industry to step up to," said Alberta Liberal MLA Laurie Blakeman, who also called on the government to disallow the creation of new tailings ponds.
Greenpeace campaigner Mike Hudema said he was pleased with the judge's decision.
"I think it vindicates a lot of the things that we've been saying, that this is a toxic industry," he said.
"The government is completely absent when it comes to trying to bring out any type of enforcement and monitoring.
"They continually cut back their budget and number of people that they have to regulate this industry and they've let companies monitor and enforce themselves and that is simply not acceptable."