ST. ALBERT, Alta. - Syncrude Canada failed Thursday to get a judge to toss the case against the oilsands giant over the deaths of 1,600 migrating ducks in one of its chemical tarpits.
Provincial court judge Ken Tjosvold rejected Syncrude's argument as legal hair-splitting.
The company's lawyer, Robert White, had argued that the wording of the main environmental charge against Syncrude describes chemicals illegally spilling out and coming into contact with birds.
But in this case, White said, it was the reverse - the birds sought out and came into contact with a legally operated tailings pond.
Tjosvold said the bottom line was that the birds were in a harmful situation no matter how it came about.
"I do not accept the explanation that the animal contaminated itself," said Tjosvold.
Syncrude faces one charge under provincial law and another under federal legislation for failing to stop the ducks from landing on its Aurora tailings pond in northern Alberta on April 28, 2008.
The birds died because they could not escape the thick black goo and were eaten alive by ravens or sank like cannonballs to the bottom of the toxic millpond.
Images entered into evidence at the trial have flashed around the world via the Internet. The case has provided fresh fodder for critics who say the billions of dollars in revenue from the oilsands - the fulcrum of Alberta's economy - can't justify the pollution and harm to environment and wildlife.
White has said that a guilty verdict for a company operating a legal tailings ponds would rock the foundation of the oilsands and threaten its future.
The maximum penalty under provincial law is a $500,000 fine, while the federal penalty is a maximum $300,000 penalty and jail of up to six months for executives. But federal prosecutor Kent Brown has already said the Crown would not pursue jail time because the circumstances don't merit it.
"Regardless of the verdict we will be encouraging people to file private prosecutions to hold these companies accountable for the toxic mess they are creating," said Sheila Muxlow of the Sierra Club.
"The federal government has argued that toxic tailing lakes violate Canada's environmental laws and we agree. These companies should never have been able to create the 170 square kilometres of toxic lakes that we now have to deal with.
"If the government refuses to continue pursuing companies that have toxic tailing lakes, which by their existence violate Canada's Migratory Bird Act, we will urge residents to use private prosecutions to try do the government's job for them."
Tailings ponds are massive lakes contained by earthen walls around Fort McMurray. They are a poisonous cocktail of water, clay, leftover bitumen and heavy metals from massive oilsands operations, where crews either drill down into or scrape off huge tracts of land to get at oil mixed with water and sand below.
Employee statements and other evidence entered into evidence have painted a picture of a company that had inexplicably let its safety systems lapse into disarray in the years and days before the deaths.
By law, the company must take steps to prevent birds from landing on the tailings pits, including the 12-square-kilometre Aurora pond. Firing off noise cannons and putting up scarecrows are two methods. Court heard that a month before the disaster the province asked Syncrude why it had allowed, over the previous eight years, the number of cannons to drop until they were just a small fraction of their former strength. Syncrude officials said they didn't know why.
That April, Alberta Environment was about to reject Syncrude's latest bird-deterrent plan as too vague and ineffective. Meanwhile, messages and emails were coming in from staff to Syncrude managers that ducks were starting to appear on the tailings pond.
Employees assigned with getting the cannons and scarecrows deployed were two weeks behind schedule that spring and didn't get going until mid-April. Even when they did, the seven-member team couldn't do much. Their boats were out of service and they had one truck to deliver all the equipment. They managed to get eight cannons around the pond compared with 130 the year before.
A major spring storm made things worse when it dumped almost 40 centimetres of snow in the area.
In summing up her case Thursday, Crown prosecutor Susan McRory told Tjosvold that Syncrude's accumulated negligence caught up with it.
"Syncrude was too late in 2008," said McRory.
White has focused on the snowstorm as the pivotal cause of the disaster, and is expected to do so again when he makes final arguments next Wednesday.
Not only did the storm delay Syncrude from deploying its cannons, he said outside court Thursday, but the snow also covered water where the ducks could have otherwise landed. That left the migrating birds with little choice but to head for the Aurora pond to rest and refuel.
"This was the only water these birds could land on. If everything had been deployed and banging away, the Crown has not proven beyond a reasonable doubt that these birds wouldn't have landed (anyway)," White said.
"Where were they going to go? There was nowhere else to go."
On the fateful day, the reports came in of hundreds of migrating ducks dying on the tailings pond. Rescue workers saved five birds and eventually nursed three of them back to health. The rest died or were put out of their misery by being shot or having their necks broken.
White's legal manoeuvrings have suggested he's fighting a two-front war - one in provincial court and the other in the court of public opinion.
In the early days of the trial, he chastised a provincial wildlife officer who took graphic photos of the dying ducks. The lawyer called pictures of ravens feasting on the stricken birds "showboating" designed to inflame outrage.
He fought to exclude damning statements Syncrude staffers made to provincial investigators in the days after the ducks were found. He argued the staffers didn't know at the time that what they said could end up in court. He suggested that admitting the statements as exhibits would hamstring future provincial probes.
Tjosvold admitted the statements anyway.
White then fought to have the statements sealed from the media. He argued they contained personal information and details that might not be accepted as relevant to the trial. He said media who wanted to publish the statements were sensationalists.
Tjosvold made the statements public anyway. He noted that legal precedent clearly states information be withheld from the public only in extreme circumstances.
The ducks have become a political albatross for Premier Ed Stelmach and his government.
The original death count was 500 and it took a year before the province revealed the toll was actually more than three times that. The government said it didn't report the new figure to avoid jeopardizing the trial's fairness.
Stelmach was dismissed by critics in the early days of the scandal as a Big Oil glove puppet for noting that more birds died in environmentally friendly wind turbines.
Last month, as the visuals of blackened ducks at the trial made front pages of newspapers, led TV newscasts and went viral on the Web, Stelmach insisted he had never seen the photos. That prompted opponents to suggest that the premier was wilfully blind.
Stelmach later said he'd seen photos of the blackened birds when they first died two years previously.
Stelmach and Environment Minister Rob Renner have been fighting an international public relations rearguard action against heavyweight enviro-critics and celebrities, including National Geographic, the Audubon Society and Hollywood kingpin director James Cameron.
Syncrude president Tom Katinas has apologized and the company has since ramped up measures to protect the birds.
The premier has pledged to make companies clean up and get rid of the tailings ponds.
The opposition NDP says the deaths are one more example of how oil companies can't be relied upon to police themselves.
Marcel Coutu, CEO of Canadian Oil Sands Trust, which has the biggest stake in Syncrude, would not comment on the specifics of the trial.
"Syncrude has always recognized its moral responsibility for the incident, legal issues notwithstanding. We know the incident was unacceptable and we must work to prevent it from happening again."