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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 trial began on a quiet March morning in St. Albert, Alta., with dozens of binders stacked on tables and cabinets in a small provincial courtroom. 

Reporters squeezed into the public gallery for hearings that, over nearly two months,  gave the practices of the Alberta oilsands industry their closest scrutiny in years.

Oilsands giant Syncrude faced federal and provincial charges for the deaths of 1,606 ducks, which perished after landing on the toxic tailings lake at the company's Aurora mine, about 75 kilometres north of Fort McMurray, on April 28, 2008.

The incident made headlines around the world. Now, more than two years later, provincial court Judge Ken Tjosvold is set to deliberate on whether Syncrude was culpable in failing to prevent the birds' deaths.

The event and the accompanying images of oil-soaked ducks became a lightning rod for environmentalists who say oilsands mining, which produces a product they like to call "dirty oil," is having a dire effect on the land, water and wildlife of northern Alberta.

What happened?

The migrating ducks landed on the open water of the Aurora tailings pond. They became coated in oil and sank to the bottom. The attraction of migrating birds to open water is a known risk, and resource companies commonly use deterrents such as noise cannons to keep them away.

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One of more than 1,600 ducks that landed on the tailings pond on April 28, 2008, in a picture taken by Alberta wildlife biologist Todd Powell. ((Government of Alberta))

Initial reports suggested 500 ducks perished in the incident, but nearly a year later, Syncrude chief executive Tom Katinas announced the number was, in fact, 1,606, a revision that resulted from the recovery of more ducks from the pond in the weeks after the initial discovery.

In the months that followed, environmentalists became frustrated at how long it was taking for either the federal or provincial government to charge Syncrude in the incident.

That frustration culminated in the launch of a rarely used type of legal action known as a private prosecution, which was filed against Syncrude in January 2009 by Sierra Club representative Jeh Custer.

A month later, however, both the federal and provincial governments announced they had laid charges against Syncrude: 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; and one count under 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.

The charges carry potential total fines of up to $800,000.

In September 2009, Syncrude pleaded not guilty to both counts, and it was decided the trial would be held in St. Albert, a small city on the immediate northwest boundary of Edmonton, instead of Fort McMurray, the city closest to Syncrude's operations.

The trial

Prosecutors Susan McRory, from the province of Alberta, and Kent Brown, from the federal government, argued the Crown's case. 

McRory is a senior Crown lawyer for environmental cases in Alberta and represented the province in the prosecution of CN for the 2005 Wabamun oil spill, where the rail company was fined $1.4 million after pleading guilty to three environmental charges.

Timeline:

  • April 28, 2008 — Hundreds of migrating birds land on the Aurora tailings pond owned by Syncrude. Initial estimates put the number of dead birds at 500.
  • Feb. 9, 2009  — Syncrude is charged under the federal Migratory Birds Convention Act and Alberta's Environmental Protection and Enhancement Act.
  • March 31, 2009 — Syncrude apologizes for the bird deaths and announces that, in fact, 1,606 waterfowl perished in the April 2008 incident.
  • Sept. 14, 2009 — Syncrude pleads not guilty to both charges in a provincial court in St. Albert, a city immediately northwest of Edmonton.
  • March 1, 2010 — Trial begins in St. Albert before provincial court Judge Ken Tjosvold.
  • March 2, 2010 — Video showing dying birds stuck in the bitumen "mat" are entered as evidence and released to the media shortly afterwards.
  • March 4, 2010 — Syncrude changes tune and affirms that it had deployed some bird deterrents, including air cannons and scarecrows, at the tailings pond before the ducks landed. Previously it said it hadn't. 
  • March 9, 2010 — An Alberta Environment official testifies about how he had to euthanize a distressed duck he found amid the thick bitumen on the pond.
  • April 20, 2010 — Tjosvold rules that statements given by 28 Syncrude employees to investigators in the wake of the duck deaths can be reported on by the media. The company had argued the statements could unfairly prejudice the trial.
  • April 21, 2010 — The workers' statements are released, revealing that a lack of equipment and staff contributed to the company's failure to deploy waterfowl deterrents such as noise cannons.
  • April 29, 2010 — The court rejects Syncrude's motion to dismiss the charges against it, and the Crown presents its closing arguments.
  • May 12, 2010 — Syncrude lawyer Robert White completes his closing arguments. Tjosvold could take weeks, possibly months, to consider his decision.   
  • June 25, 2010 — Tjosvold finds Syncrude guilty on both charges but doesn't enter convictions. Legal arguments are scheduled to take place on Aug. 20 to determine if convictions should be entered on both counts, because the charges could be considered similar in nature.
  • Aug. 20, 2010 —  Lawyers make a brief appearance in court. The case is adjourned until Oct. 22 at Syncrude's request. Lawyer Jack Marshall is now representing Syncrude.

Syncrude's legal team was led by veteran Alberta lawyer Robert White, who is known for representing more than 60,000 people who invested in the Edmonton-based Principal Group of Companies, which failed in 1987.

The rows of thick binders lined up in the small courtroom speak to the complexity of the case, which sought to find out what exactly happened leading up to the moment the ducks landed on the tailings pond.

A key issue in the trial was why Syncrude hadn't yet fully deployed their noise-making air cannons that year.

In the days after ducks were discovered, Syncrude officials said a late winter storm prevented them from setting up the cannons. Then during the first week of the trial, Syncrude lawyer White said some air cannons were on site, but they hadn't been fully deployed. The company hadn't been able to say otherwise until then because of legal reasons, White said.

For its part, the Crown called witnesses to testify about the timeline of the day in question, when migrating birds were first found in the area, and when a winter snowstorm hit the area.

The Crown's case took weeks to present in court, after which defence lawyer White moved to have the charges against Syncrude dismissed. When that failed, White declined to call any witnesses, choosing instead to rely on his cross-examinations and closing arguments to rebut the prosecution. 

On June 25,  Tjosvold delivered his decision to a packed courtroom. He found Syncrude guilty on both counts, but didn't enter convictions, because he anticipated future legal arguments on the issue.

Lawyers were then scheduled to return to court on Aug. 20 to argue whether convictions should only be entered on one of the two counts, to prevent the company from potentially suffered two convictions for the same offence.

Those legal arguments didn't take place on Aug. 20. Instead, the judge granted Syncrude's request to have the matter adjourned until Oct. 22. The court was also told that Syncrude is speaking to both prosecutors about a creative sentencing option.

Lawyers wouldn't say what options were under discussion but past creative sentencing arrangements have seen fines go toward conservation projects, research initiatives or college scholarships.

Video of ducks struggling

In the first week, the Crown called evidence from the wildlife officials who were first on the scene and took pictures and video of oil-covered ducks struggling in the pond.

One of the first witnesses, Todd Powell, a senior wildlife biologist with the Alberta government, testified about the video and dozens of photos he took when he first arrived at the tailings pond on April 28.

In one series of pictures, two ravens are shown killing and scavenging the remains of an oil-covered duck trapped in the bitumen. 

In another piece of video shown widely in media reports, a male duck is seen struggling to free himself from the bitumen-covered lake.

As the trial entered its second week, the court was shown more video from another witness, Alberta Environment official Cory McLaughlin, which showed the attempted rescue of one of two ducks trapped in so-called "bitumen mat" that floats on top of the tailings pond.

Toward the trial's end, Tjosvold ruled to allow the media to report on statements given by 28 Syncrude employees to investigators in the wake of the duck deaths. The company had hoped to keep the statements under wraps, arguing that they could unfairly prejudice the proceedings.

Among the things workers told investigators was that the company had been using only one truck, instead of the usual four, to deploy its bird-deterrent equipment in the days before the duck disaster. Employees also said there was a shortage of staff to get the equipment in place, according to the released statements.

Who owns Syncrude?

Syncrude is owned by a number of resource companies: Canadian Oil Sands Ltd., Conoco Phillips Oil Sand Partnership II, Imperial Oil Resources, Mocal Energy Limited, Murphy Oil Company, Nexen Oil Sands Partnership, Petro-Canada Oil and Gas (which is now part of Suncor).

What is bitumen?

Bitumen is a thick, sticky substance that is commonly described as having the texture of molasses.  At Syncrude and Suncor, oilsands are mined in open pits. The bitumen is then extracted from the oilsands through the use of a hot water process and then refined or "upgraded" into synthetic crude oil.

What is a tailings pond?

The ponds — which are actually the size of lakes — are bodies of water that collect what is left over after bitumen is extracted from the oilsands.  The mixture includes leftover bitumen, clay, sand and trace amounts of metals that are left to settle and dry out in hopes they can someday be reclaimed.

The use of tailings ponds is controversial as scientists and environmentalists say the toxic water can leach into the ground, which in turn has an effect on the region's rivers, land and wildlife.

Researchers are looking at ways to speed up the reclamation of tailings and reduce the amount that is produced during oilsands production.

Syncrude was given a reclamation certificate from the Alberta government in 2008 for reclaiming Gateway Hill, a 104-hectare parcel of land north of Fort McMurray, a first for the Canadian oilsands.

According to the Pembina Institute, this represents only 0.2 per cent of all the land that was been "disturbed" by the mining of oilsands.