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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

In a landmark ruling, a judge has found oil sands giant Syncrude Canada Ltd. guilty of a pair of environmental charges stemming from the deaths of 1,606 birds two years ago.

Provincial Court Judge Ken Tjosvold ruled Friday that Syncrude was indeed responsible for its tailings pond where the ducks were found, and it "did not deploy the [bird]deterrents early enough and quickly enough" around the 12-square-kilometre pond, which contained toxic, oily bitumen byproduct.

"I am convinced beyond reasonable doubt that Syncrude could have acted lawfully by using due diligence to deter birds from the [pond] whether or not it was successful in its attempts at deterrence, and it did not do so," Judge Tjosvold said.

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The ruling is a major victory for environmentalists who oppose oil sands development - the engine of the Alberta economy - because of its heavy environmental toll. The prosecution itself was sparked after a private complaint by a member of the Sierra Club.

The case, however, is far from over. Syncrude was found guilty of two charges: a provincial charge of failing to prevent a toxic substance from harming wildlife, and a federal one of depositing a substance harmful to migratory birds. But the guilty findings haven't been formally entered.

Syncrude lawyer Robert White argued the charges amount to "double jeopardy." Lawyers will return Aug. 20 to argue whether to convict on one charge or two.

"We're very pleased, obviously. But we've got a lot more work to do," provincial prosecutor Susan McRory said outside court.

Afterwards, court will hear arguments on sentencing. The provincial charge allows for a fine of up to $500,000 and other unspecified "creative sentencing."

The federal charge allows for a fine of up to $300,000 and jail time for company executives. Federal prosecutor Kent Brown said he won't seek the latter, but the option of seeking a maximum fine per duck - totalling as much as $481-million - is "still something that's available to us."

Mr. White will recommend his clients appeal because he believes the "judgment is incorrect," arguing that to find the company guilty when its tailings pond was provincially licensed could effectively make all such ponds illegal.

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Syncrude spokeswoman Cheryl Robb also warned of "serious ramifications on Canada's mining industry."

Judge Tjosvold's ruling, though, made it clear that a defence of due diligence is still available to companies. Syncrude just didn't do enough, he ruled. Before the grim 2008 discovery, Syncrude had cut back the number of seasonal bird deterrent staff, giving them only one truck, and was weeks late in deploying scare cannons and effigies meant to keep the birds off the massive tailings pond.

"Due diligence does not require clairvoyance or that the accused should have seen every possible failure," Judge Tjosvold wrote.

Opposition parties and Greenpeace framed the ruling as a failure of the Alberta government, which they allege is cutting its monitoring budget and allowing industry to police itself.

"We have a gutless government which, quite frankly, missed all the failings that were cited by he judge today, because we're cutting our monitoring rather than increasing it," New Democrat MLA Rachel Notley said.

The ruling is a "wakeup call" for Alberta industry, said Alan Ross, an energy and regulatory lawyer with Borden Ladner Gervais in Calgary. "Any time you get a high-profile case that drags a company like this through the prosecutions process, it will cause alarm or concern for other companies. Certainly, oil companies will take notice."

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Suncor, a Syncrude oil sands competitor, withheld comment until it could review the ruling.

Environmental groups hope this will be the sign of an increased will by government to pursue charges against major industry.

"The public and the courts as aware as they ever have been about the need to preserve the environment," added Mr. Brown, the federal prosecutor. "And that's what this case was always about."

With a report from Nathan VanderKlippe in Calgary

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About the Author
Parliamentary reporter

Josh is a parliamentary reporter in Ottawa. Before moving to the nation's capital in 2013, he covered provincial affairs in Edmonton and throughout Alberta. He joined the Globe in 2008 in Toronto before returning to his home province in 2010. More

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