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
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
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
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
Counsel for Syncrude has indicated that Syncrude intends to
appeal the decision.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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