Implications of the Syncrude Duck Trial

The trial of the Syncrude Canada, Ltd. oil company is now almost three weeks old. Syncrude is facing criminal charges for the death of over 1600 migratory waterfowl at its Aurora tailings pond in St. Albert, Alberta on April 28, 2008. A major point of contention that has emerged in the trial has been around the use of deterrents (noise cannons and scare crows) to keep the ducks from landing on the tailings pond. Syncrude attorney Robert White has argued that a late winter storm prevented Syncrude from deploying them by April 28 while Crown prosecutor Susan McRory maintains that Syncrude “ought to have known” that such an incident could have occurred, pointing out that other companies in the area had their bird deterrents in place by that time.  

The Crown’s focus on Syncrude’s failure to deploy deterrents neglects a more important point in this trial: the tailings ponds themselves are illegal under the Migratory Birds Act of 1994 (MBA). The MBA clearly prohibits the depositing of substances that are harmful to migratory birds “in waters or an area frequented by migratory birds.” The existence of tailings ponds in Alberta’s Boreal Forest, where between 22 million and 170 million migratory birds come to breed every year, is a blatant violation of this prohibition, of which the Syncrude trial is only one example. The annual rate of tailings pond-related bird fatalities is estimated at anywhere from 8,000 to a staggering 100,000 plus, many of which go unreported. Such a high fatality rate should come as no surprise, since tailings ponds, located right at the heart of migratory birds’ breeding ground, cover over 50 sq. miles and contain billions of gallons of toxic waste. Even at the lowest level this fatality rate is unacceptable under the MBA. This trial should demonstrate to the federal and provincial governments that they have a legal obligation to reevaluate their relationship with the oil companies who are gutting the Albertan landscape in search of bitumen.  The existence of tailings ponds, an unavoidable by-product of tar sands extraction, violates the letter of the law, with lethal consequences. Now that this situation is on display, there is no excuse for government inaction. Convicting Syncrude under the MBA will set a precedent that is applicable to all tar sands-extracting companies in the region. Tailings ponds pose an unlawful risk to the wildlife in the Boreal Forest, regardless of the presence of deterrents. At the very least, this fact should prohibit the provincial and federal governments from approving further tar sands expansion.

Such a situation should also make policymakers in the United States reconsider its involvement with tar sands extraction. To date, the strongest manifestation of this involvement is the proposed Keystone XL pipeline. According to a briefing recently released by the NRDC, this massive project, if approved by U.S. and Canadian authorities, will transport up to 900,000 barrels of tar sands oil from Alberta to the United States per day. This will cause a dramatic increase in extraction, thus further expanding the tailings ponds. On top of that, the XL pipeline will jeopardize our national oil savings goals, cause an increase in carbon emissions, and endanger the rural Midwestern landscape which it will cross to reach the Gulf of Mexico. When all of these pitfalls are considered along with the legality issues surround the tailings ponds, the prohibitive costs of tar sands become all too evident. There is simply no way we can be responsible stewards of our environment while still scraping bitumen from beneath the surface of Alberta, a process which will only expand with the construction of the Keystone XL pipeline. The Canadian governments and the U.S. government should take this trial as an indication of what tar sands really are: an expensive, impractical, and toxic source of energy with a legally precarious method of extraction.  At a time when our environmental and economic future depends on transitioning to clean energy, it makes no sense for energy companies, with the support of government, to be trying to exploit bitumen. 

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