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Court hears final arguments in Syncrude trial

An image shown in a court case over the death of more than 1,000 ducks caught in a Syncrude tailings pond.

Todd Powell/Alberta Government

A lawyer for Syncrude says charges faced by the oil sands giant over 1,600 dead ducks on its tailing pond are a cheap shot and a gross overreaction by prosecutors.

Robert White also argued Wednesday that a guilty verdict would threaten the very foundation of business in Alberta.

He said in his final arguments before Judge Ken Tjosvold that the matter should have been handled at the provincial level - with fines - if Syncrude indeed violated its regulatory agreement with the government in the duck deaths.

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Instead, said Mr. White, the company was unfairly bushwhacked "through the back door" with two environmental charges that don't apply.

"That is a denial of fairness, justice, common sense and decency," Mr. White told Mr. Tjosvold in provincial court.

If Syncrude is found guilty, then the ground will have shifted for every company in Alberta, Mr. White argued. It means that even if business owners follow all the regulatory rules, they still might be charged under environmental laws, he said.

Syncrude faces one charge under provincial law and another under federal legislation for failing to stop the ducks from landing on its 12-square-kilometre tailings pond in northern Alberta on April 28, 2008.

Tailings ponds are massive lakes containing a poisonous brew of water, clay, leftover bitumen and heavy metals from oil sands operations.

The birds died because they could not escape the thick black goo on top. They were eaten alive by ravens or sank like stones to the bottom.

Images of suffering ducks entered into evidence at the trial flashed around the world via the Internet and provided fodder for critics who say the billions of dollars in revenue from the oil sands - the backbone of Alberta's economy - can't justify the pollution and harm to environment and wildlife.

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The maximum penalty under provincial law is a $500,000 fine, while the federal penalty is a maximum $300,000 and a jail term of up to six months for executives.

Crown prosecutors, in their final arguments, have said the case is clear: Syncrude is mandated to take steps to keep birds off the tailings ponds and didn't do it.

Court has heard that Syncrude staff assigned to get air cannons and scarecrows deployed on the pond 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.

Mr. White has argued the snowstorm was the linchpin. He said it was freakish in timing and intensity, could not have been foreseen by Syncrude and left the ducks with no water to land on except the tailings pond.

Syncrude has apologized and implemented year-round measures to keep birds away. But Mr. White told Mr. Tjosvold that rather than simply plead guilty and get fined, the company decided to fight because there's a higher issue at play.

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Mr. White said both charges are legal square pegs in round holes and, if proven or admitted to, would set disastrous precedents.

The provincial charge, he has said, is meant for a company that allows chemicals to illegally spill and come into contact with birds. But in this case, he noted, it was the reverse - the birds sought out and came into contact with a legally operated tailings pond.

And, he argued, the federal charge under Canada's Migratory Bird Act, if enforced to its draconian letter, would shut down the tailings ponds because it carries zero tolerance on bird deaths - whether it's one or 1,600.

Regardless of best intentions by Syncrude and other oil sands operators, "it's impossible to keep all birds off" toxic ponds, Mr. White said.

He noted that there have been unavoidable bird deaths in the past on the tailings ponds, but no charges were laid.

A guilty verdict would push Syncrude into an untenable situation, he suggested.

"There would be two options: break the law (by operating tailings ponds that would inevitably kill birds) or shut down."

Mr. Tjosvold was expected to announce later Wednesday the date for his decision.

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