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Ottawa is overstepping its bounds as it pursues charges against the oil sands company charged with killing 1,606 ducks in its toxic waste pond, a lawyer for Syncrude Canada Ltd. says.

Syncrude has been charged with a single count each under both provincial and federal laws after the birds landed on its massive 12-square-kilometre tailings pond in April, 2008. Their deaths stirred international furor, and, to oil sands critics, have come to symbolize the environmental destruction of the massive crude-extracting projects around Fort McMurray, Alta.

Syncrude has pleaded not guilty to both charges. But on the first day of the two-month trial which includes both charges, Robert White, a lawyer acting for Syncrude, told reporters that the federal Migratory Birds Convention Act, under which the company is charged, "was not ever designed to be used to regulate Alberta's natural resources. This is the toe of the federal government coming into the regulation of Alberta natural resources."

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Mr. White wants the court to force prosecutors to drop at least one of charges against the company. Making Syncrude face both provincial and federal charges at the same time would be akin to double jeopardy, the legal principle that bans multiple convictions for the same offence, he argued in court.

There is no precedent for such a ruling at the outset of a trial. The judge is weighing the defence's motion to have one of the charges dropped.

Todd Powell, a senior wildlife biologist with the Alberta government, arrived at the tailings pond on April 28, to find hundreds of duck heads stuck in a thick mat of heavy bitumen. Many were so covered with oil that the only way to identify them was by the colour of their eyes. Many were dead. Others were dying. "You could see their bills move, their heads struggle, small body motions," Mr. Powell said.

It took Syncrude more than a day to bring boats on the lake to begin attempting to rescue ducks, Mr. Powell said. A boat was not stationed on the lake at the time, and the truck that could transport them was in for maintenance at the time.

The suggestion of having some charges dropped drew ire from environmentalists, however, who accused Syncrude of "ducking its responsibility" - especially since federal legislation is considered more stringent. Federal rules ban toxic ponds outright in areas frequented by migratory birds, while provincial law makes it an offence only when those ponds contaminate plants and animals.

"What's really on trial here is not just Syncrude, but tailing lakes in general," said Greenpeace energy and climate campaigner Mike Hudema.

Syncrude has publicly apologized for the deaths of the ducks, raising questions over why it is fighting the charges in court, a process that Mr. Hudema argued will be costly to the public purse.

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Mr. White told reporters Syncrude is fighting the charges because it made a "mistake," but committed no legal wrongdoing. "There's no question that the settling basin [the tailings pond]and its contents was the reason that these birds died. And there is no question at all that the settling basin is Syncrude's responsibility, and [the company]is morally culpable. But they are not guilty of criminal offences," he said.

Syncrude's case could turn on the narrow wording of legislation that bans it from harming migratory birds.

"What the statute says is that we're not supposed to bring any hazardous substance into contact with these birds," Mr. White said. "The problem arises when the birds come into contact with our hazardous substance. Is there a way that we can ensure that that not happen?"

Still, provincial prosecutor Susan McRory argued that Syncrude did not respond quickly enough to the arrival of birds in the area. "They were too late," Ms. McRory told the court.

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About the Author
Asia Bureau Chief

Nathan VanderKlippe is the Asia correspondent for The Globe and Mail. He was previously a print and television correspondent in Western Canada based in Calgary, Vancouver and Yellowknife, where he covered the energy industry, aboriginal issues and Canada’s north.He is the recipient of a National Magazine Award and a Best in Business award from the Society of American Business Editors and Writers. More


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