Syncrude found guilty, but has justice been served?

More than two years after 1,600 ducks died in Syncrude's Aurora tailings lake, the oilsands operator has been found guilty in a high-profile court case that almost never happened. Since the incident, the amount of tailings (the toxic liquid waste produced by the oilsands extraction process) has steadily increased in volume by 200 million litres, or 80 Olympic-sized swimming pools, every day to now cover an area of 170 km2. It raises the question: Did the ducks die in vain?

Checks and balances left unchecked

The Edmonton Journal's Darcy Henton summarized the evidence on just how those 1,600 ducks died in the first part of his three-part series looking at the case. Here are the highlights from what he found: Syncrude failed to deplDead ducks from Syncrude's Aurora tailings lakeoy duck deterrents despite reports 11 days prior to the incident that migratory birds had arrived. The head of their bird and ecology team had no training in wildlife management. That team was called into work two weeks later  than usual. The team only worked four days out of what should have been seven-day-a-week bird deterrent coverage, and that reduction of staff and workdays wasn't reported to Alberta Fish and Wildlife. The equipment required to deploy duck deterrents — adequate number of trucks, a fleet of operational boats and the batteries (nine-volt available in any convenience store) — was not available. While Syncrude claimed it was an act of God that caused the duck deaths, other oilsands operators, like Suncor, began to operate their bird deterrent systems for the 2008 migration two weeks before Syncrude workers were even called into work.

Déjà vu all over again

Checks and balances are supposed to be in place to prevent incidents like that of April 28, 2008. Syncrude took a lax approach to its wildlife management responsibilities though and, as a result, more than 1,600 ducks died. Similarly, despite the province's Directive 074, new rules designed to limit increases in tailings, the Energy Resources Conservation Board (ERCB) has approved Syncrude's tailings expansion plans and later defended their decision, stating that Syncrude "might not have been satisfying the letter of the Directive until 2014 but they were certainly obeying the spirit of it."

The trial that almost never was

Duck struggling, covered in toxic tailings at Syncrude's Aurora tailings lakeSpeaking of not holding Syncrude to the letter of the law, the company almost bypassed charges for the duck deaths. It was only after Barry Robinson, a lawyer for Ecojustice, filed a private prosecution by an Alberta citizen against Syncrude in January 2009 that both the Governments of Canada and Alberta laid charges the following month, almost one year after the incident.

The verdict

The guilty verdict is significant and it's positive. Further, because of the negative publicity the trial has generated, Syncrude's bizarre legal strategy and the company's unwillingness to accept responsibility for the obvious failures in due diligence, both the oil sands industry and Syncrude have taken a reputational beating. Albertans, Canadians and a growing international audience are casting a skeptical eye on the industry. The trial in the court of public opinion will continue even after today's verdict.

The guilty verdict is probably just one of many that should have come down due to wildlife deaths at oilsands sites. It took a Freedom of Information request to determine that 164 other animals have died at these sites since 2000, a number that undoubtedly underreports actual impacts due to monitoring gaps. Increased monitoring, reporting and transparency are critical.

Tailings lake in northern AlbertaSo, whether this incident was isolated is questionable and so is whether industry and government are responding appropriately. Even if the maximum $800,000 is fined, it's evidence that environmental regulations, even when they are enforced, aren't much of a deterrent. Canadian Oilsands Trust, the largest owner of Syncrude with a 36 per cent stake, had a net income of  $1.5 billion in 2008 and $432 million in 2009. In just the first quarter of 2010, their net income was $165 million, or around $1.8 million per day. An $800,000 fine would represent income from less than half a day of production for Canadian Oilsands Trust, or likely around four hours of profit for the whole Syncrude consortium. Bottom line - even the maximum financial penalty would be but a drop in the bucket.

What needs to happen now?

The ducks were an unfortunate result of the unacceptable waste management practices of an oilsands industry that, during 40 years of weak regulatory oversight, has produced 840 billion litres of toxic waste. While meeting basic standards of due diligence around deploying propane cannons and other aversion strategies are important, the tailings issue is much bigger than ensuring adequate resources are available to ensure birds don't land on toxic waste.

What we need is less toxic waste. Syncrude isn't alone in its plans to not reduce its tailings waste and therefore not comply with Directive 074. An assessment conducted by the Pembina Institute and Water Matters, found Syncrude is one of seven oilsands operators that are not planning on complying with the Directive. Whether the ERCB will enforce its own rules and reject some of these inadequate plans remains an open question.

Rhetoric from politicians and even some industry now acknowledges that tailings lakes are unacceptable, but the problem continues to grow. We need enforcement of current rules and much stricter standards for new projects that would prohibit the creation of liquid tailings. Otherwise, the ducks will have died in vain.