Earlier in June, I had a post about the court case in Alberta that involved charges that had been laid against Syncrude’s in the death of 1600 waterfowl. Last Friday, Provincial Court Judge Ken Tjsovold released his verdict in the case. He found that Syncrude was responsible for the tailings ponds where the dead and dying ducks were found and that Syncrude did not act with due diligence in their efforts to ensure that migrating waterfowl did not land in the 12 square kilometre Aurora tailings pond that contained a toxic soup of water, sediment, heavy metals and bitumen. From the decision document, here is the description of the tailings pond:
"The tailings include water, sand and bitumen. When deposited, the tailings still retain heat from the extraction process so ice on the Basin will melt before ice on nearby natural water bodies. Bitumen is found throughout the pond in strands or lumps. It is also found in a mat of the type that trapped the waterfowl on April 28, 2008. The mat was described as being several inches thick, viscous and cohesive with the consistency of a frothy roofing tar. It moves within the pond and eventually sinks, taking birds with it in this case. The mat found on April 28, 2008 covered a significant part of the pond. "
From the same document, here’s what happens to the birds when the land on the ponds:
"A significant amount of the bitumen in tar sands, probably between 3 and 10%, cannot be recovered and ends up in tailings ponds. Bitumen mat on the surface of the tailings pond can trap the waterfowl that land on it and the birds will eventually sink with the bitumen. As bitumen contamination increases, birds lose buoyancy and the insulating effect of feathers. There is a loss of the feathers’ waterproofing, leading to hypothermia or drowning. Birds will lose their ability to fly. A heavily oiled bird will almost certainly die…
Birds that attempt to preen bitumen from their feathers and those that forage on the shores of the pond may ingest bitumen which is toxic to them. Even a light oiling can interfere with a bird’s reproductive abilities. Relatively small amounts of some petroleum products may also result in high levels of mortality for bird embryos."
Sounds lovely doesn’t it? Here’s Syncrude’s defence to the provincial charge:
"Respecting the provincial charge, Syncrude argues that:
1.By adding the word “fail” to the charge, the Crown has alleged an offence unknown to law.
2.The word “fail” imposes on the Crown the obligation to prove Syncrude’s conscious dereliction of the duty to ensure that a harmful substance did not come into contact with birds.
3.The Crown has failed to prove that Syncrude did “keep” or “store” a hazardous substance.
4.The Crown has failed to prove that a hazardous substance did “come into contact with” or “contaminate” any animals."
You’ve got to love how lawyers can spin these things. I particularly like points three and four. I guess no birds died and there was no bitumen kept or stored in the tailings ponds that the non-existent birds didn’t die in! In the words of Syncrude’s lawyer, the bitumen had been "disposed of" by the company; I guess once the waste bitumen left their upgrader, it’s like it never existed.
Fortunately, Judge Tjosvold didn’t see things the way the defence lawyer saw them. Syncrude was found guilty of two charges: a charge of failing to prevent a toxic substance from harming wildlife under the provincial act and a federal charge of depositing a substance that is harmful to migratory birds. Judge Tjosvold noted in his ruling that Syncrude simply did not do enough to ensure the safety of the birds. They had inadequate staffing levels and vehicles for bird deterrence and were weeks late in deploying bird deterrent equipment.
The federal charges could bring a fine of $300,000, which could be applied per bird, for a total of as much as $481 million (extremely unlikely), with the provincial price tag ringing in at a maximum of $500,000.
What I found quite interesting was that Alberta Provincial Crown prosecutor Susan McRory said the prosecution wants to pursue a “creative” sentence in this case. In light of that, I have come up with three suggestions for a"creative" sentence:
1.) Require the three top executives of Syncrude to swim or wade across one of the tailings ponds with no protective gear.
2.) Require the three top executives of Syncrude to drink one glass of water from the tailings pond.
3.) Require the three top executives to publicly re-enact the deaths of the waterfowl (since the death of one of the birds was caught on video) after which they will recite in unison an apology to the families of the waterfowl killed in the incident.
You don’t need to thank me for my suggestions, Ms. McRory, but credit given in a mainstream newspaper would be nice.
By the way, Syncrude’s lawyer, Mr. Robert White, is recommending that his client appeal the verdict. Lawyers will return to the courtroom on August 20th, 2010 to argue whether Syncrude should be convicted on one or two charges.
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