R. v. Syncrude Canada Ltd. 2010 ABPC 229 — A Case of Overstated Significance?

1. Introduction

   On June 25, 2010 Syncrude Canada Ltd. ("Syncrude") was found guilty on two charges arising out of the death of approximately 1,600 ducks in its settling pond in Northern Alberta. The charges were brought pursuant to Alberta's Environmental Protection and Enhancement Act, (the "EPEA") and Canada's Migratory Birds Convention Act (the "MBCA").1 Both the EPEA and the MBCA provide statutory "due diligence" defences.2 Syncrude raised a number of additional defences including an act of God, abuse of process and officially induced error.

   This decision has received considerable media attention. It is being heralded as a monumental victory for environmentalists and by some commentators as devastating to the oil sands industry. Some commentators have gone further to suggest that this decision undermines any comfort that businesses can take from the fact that they have an environmental approval for their operations. In our opinion, this decision is not as menacing to industry as some of the commentators would lead us to believe.

   The message in this decision is not that tailings ponds are illegal or contrary to the prohibitions in environmental legislation nor is it that companies must achieve a standard of perfection to prevent waterfowl from coming in contact with the hazardous substances contained in tailings. To the contrary, the message is simply that companies are obligated to take all reasonable measures to avoid foreseeable harm to wildlife and, at a minimum, to comply with the requirements of their environmental plans and approvals.

2. Background

   As part of its oil sands operations in the Fort McMurray region of northern Alberta, Syncrude operates a large settling basin, the Aurora Settling Basin (the "Basin"). The Basin is a large artificial pond, approximately the size of 640 football fields,3 used to extract water from the tailings that result from the processing of the tar sand deposits. The tailings, which are deposited into the Basin by large pipes, are generally composed of water, sand and bitumen that remain after the processing of the oil sands. The Bitumen is a viscous material with the consistency of roofing tar and is found throughout the Basin as strands, lumps and mats. Bitumen mats on the surface can trap waterfowl that land on the basin leading to almost certain death.

   Deterring waterfowl from the Northern Alberta oil sands tailings ponds presents many challenges due to the proximity of the Athabasca River and Peace Athabasca Delta, because tailings ponds are indistinguishable from natural water bodies for many species of birds and because tailings ponds are warmer than other water bodies in the area and, as result, tend to thaw earlier and become preferential landing sites in the early spring break up. Expert evidence during the trial indicated that some waterfowl will die in the oil sands tailings ponds regardless of deterrence efforts and even more birds will die without effective deterrents.

3. Facts

   Approximately 1,600 ducks died on April 28, 2008, after they landed on...