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Syncrude loses bid to dismiss wildlife charges

Oil sands company Syncrude Canada Ltd. is legally responsible for the death of 1,606 ducks on one of its tailings ponds largely because it failed to deploy adequate mechanisms to scare the birds away, a Crown attorney told court Thursday.

Provincial prosecutor Susan McRory gave her closing arguments in a long-running case against the oil company following the deaths of the birds on April 28, 2008. She argued that while the two other major oil companies operating in the region had deployed scare cannons and other devices in late March and early April to ward off birds, Syncrude failed to do so in time.

"The birds died because there was no protection [keeping them from the pond] Why was there no protection? It wasn't set up and wasn't turned on. It was too late. The birds got there first," Ms. McRory argued in court.

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The company received a warning about incoming bird flocks on April 17, a Thursday, but didn't act immediately because none of its relevant staff work Friday, Saturday or Sunday, she alleged.

"You have what I would suggest is a system that isn't capable of responding, isn't capable of responding because they don't work weekends," Ms. McRory said.

Syncrude has argued it was a freak snowstorm that forced the birds onto the tailings pond, leading to the deaths. Both Ms. McRory and federal prosecutor Kent Brown retorted that such a storm, while large in scale, came at least 48 hours before the discovery of the birds and should have been anticipated.

"I would submit that bad weather is not unforeseeable in Northern Alberta in the spring. In fact, I would submit bad weather is to be expected," Mr. Kent told court in his closing arguments.

The Crown's closing remarks come in the trial's ninth week, and after judge Ken Tjosvold delivered a decision earlier Thursday to reject a motion by Syncrude to dismiss the case altogether.

Mr. Tjosvold ruled that "sufficient evidence" had been called to continue with the charges - one provincial of failing to store a hazardous material in a manner that prevents it from coming in contact with wildlife, and a federal charge of "permitting the deposit" of a substance harmful to migratory birds.


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Defense lawyer Robert White had asked for both charges to be tossed out, saying none of the evidence supported the actual charges. He also contends they overlap, forming a "double jeopardy," and has unsuccessfully asked for them to be thrown out.

Mr. White had argued the provincial law is designed for oil spills, not cases where birds came to a toxic substance. Mr. Tjosvold rejected that.

"The bird is contaminated by the substance whether it moves to the substance or the substance moves to it," the judge said.

Mr. White acknowledged he was "disappointed" by Mr. Tjosvold's ruling, but suggested he'd rely on much of the same argument in his defense as in applying for dismissal, which he though had a "slightly better than even chance" of passing.

He dismissed Ms. McRory's assertion that more cannons would have kept the birds away, saying weather conditions forced their landing.

"Sure it would have been nice to have them [the cannons]out already, because we wouldn't have been charged. But it wouldn't have kept the ducks away," he said.

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The case will rest largely on whether the judge decides Syncrude did its due diligence in attempting to keep ducks off its pond. If he finds it did, Mr. Kent has already signalled he will not then ask for a conviction on the federal charge.

The defense will make its closing arguments on May 5. If found guilty, Syncrude faces fines of up to $800,000.

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