In April 2008, a late spring snowstorm resulted in the diversion of ducks from their flyway to a tailings pond ("Aurora Pond") near Fort McMurray, Alberta, operated by Syncrude Canada Ltd. ("Syncrude"). The ducks landed on the Aurora Pond and were killed by the toxicity of the pond.
Syncrude was charged with two offences related to the death of 1,606 waterfowl: failing to store a hazardous substance in a manner that ensured that it did not come into contact with any animals, contrary to s. 155 of the provincial Environmental Protection and Enhancement Act (Alberta) ("EPEA"); and, depositing a substance harmful to migratory birds in an area frequented by migratory birds, contrary to s. 5.1(1) of the federal Migratory Birds Convention Act (Canada) ("MBCA"), a charge usually used to regulate bird hunting. With the conviction Syncrude may be liable for fines totalling $800,000 under the two statutes.
Over the course of an eight week trial, the Crown argued that migratory birds use the Aurora Pond every year and that is why Syncrude typically installs sound cannons to deter birds from landing on the Aurora Pond. Syncrude stated that the storm prevented it from installing these cannons.
Syncrude further argued that the charges brought against it were inappropriate as environmental legislation prevents hazardous substances from entering the environment, but there was no entry into the environment in these circumstances because the hazardous substances (mainly bitumen) were contained within the Aurora Pond. Furthermore, the Aurora Pond was licensed by the Alberta Government and as a result the provincial Government was complicit in the violation. Finally, Syncrude contended that the Aurora Pond was not a natural nesting area for migratory birds; therefore, the Aurora Pond does not fall within the charging provision of the MBCA.
The decision was issued by the Alberta Provincial Court on June 25, 2010. Syncrude was found guilty pursuant to both the provincial and federal charges, with a sentencing hearing to follow on August 20, 2010 at which time the amount of the fine will be determined.
This matter raises a novel concern from a jurisdictional perspective. Previously, charges have only been laid in similar circumstances pursuant to provincial authority. As the Crown was successful in prosecuting the federal MBCA charge, there is now a heightened possibility of both federal and provincial charges being laid in environmental matters in the future for a single incident.
The due diligence defence, Syncrude's primary defence, also figured prominently; however Syncrude was unsuccessful in establishing the due diligence defence. Provincial Court Judge Ken Tjosvold found the hazardous nature of the Aurora Pond foreseeable, and that Syncrude had not taken sufficient steps to ensure that birds would not be harmed. The Court found that Syncrude had reduced its deterrence measures and staffing with respect to bird protection and that there were reasonable legal alternatives to the measures employed by Syncrude that would have met the criteria of the due diligence defence.
This case demonstrates how important it is to take all precautions to protect wildlife from environmental hazards created by business operations. Employing adequate preventive measures during the course of ordinary operations will ensure that the due diligence defence can be relied upon if similar charges are prosecuted.
It is worthy to note that Syncrude was charged prior to the new enforcement provisions for the MBCA, pursuant to federal Bill C-16 which received Royal Assent on June 18, 2009, but which are not yet in force. These much tougher enforcement provisions will see a large company facing a potential fine under the MBCA of $4,000,000 (summary conviction) to $6,000,000 (indictable offence), with a minimum of $100,000 (summary) to $500,000 (indictment), as compared to the $300,000 maximum applicable to Syncrude under the current MBCA.
Counsel for Syncrude has indicated that Syncrude intends to appeal the decision.
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