A tale of tailings and birds: The Syncrude duck trial (Part 2 of 2)
(continued from Part 1)
Other mine operators had their deterrent systems operating by the end of March in 2008. A snowstorm arrived on April 20th that delayed deployment of cannons and scarecrows at Syncrude. Warm weather arrived shortly after the snowstorm and melted the surface around the tailings lake, preventing crews from gaining access to the lake to deploy deterrents. To complicate matters, natural water bodies in the area remained frozen over, reducing the places where migratory birds could land in safety. When the birds arrived at the end of April there were only minimal deterrents in place at Syncrude’s Aurora North tailings lake to ward them off. The birds landed and the rest is history.
The crown prosecutors made it clear that as long as mine operators exercise due diligence by having their bird deterrents out and operating in time for the spring migration, charges are not laid for the few birds that normally die every year in the tailings lakes.
The trial wrapped up with defense arguments on May 12. Syncrude’s legal team argued that the snowstorm and subsequent warm weather were unusual conditions over which the company had no control and therefore Syncrude should not be held responsible for the deaths of the birds. Judge Ken Tjosvold will consider the evidence over the coming weeks and will render a verdict by June 25.
The trial raises the issue of what is acceptable in terms of wildlife loss in exchange for industrial development. The Migratory Birds Convention Act currently does not allow any loss of migratory waterfowl as a result of industrial operations. The federal government wants to amend the regulations under the MBCA to permit an incidental take of migratory birds from industrial activities. Environment Canada is proposing to implement a risk-based framework to determine conditions for incidental take based upon the scale and type of industrial activities underway.
Any regulatory changes will need to account for provisions of the Species at Risk Act. There is at least one endangered species with the potential to be harmed by an unscheduled stop in a tar sands tailings lake. Whooping Cranes nest in Wood Buffalo National Park a few hundred kilometers north of where bitumen is mined in Northern Alberta. The largest of North America’s cranes migrate over the tailings lakes every year in their journeys to and from wintering grounds in Texas. The vast and growing toxic tailings lakes have the potential to undo conservation work underway since the mid 1960s that has so far succeeded in protecting and preserving the last remaining self-sustaining wild population of whooping cranes in the world.
Currently there are 840 million cubic metres of toxic fluids in tailings lakes that cover 170 square kilometers of Northern Alberta. Whatever the outcome of the trial or the proposed change in migratory bird regulations, it’s clear that tar sands mines will continue to present a serious hazard to migratory birds as long as tailings lakes remain on the landscape.
J.T. Nalbach and R.R. Goforth. 1973. Migratory Waterfowl and the Syncrude Tar Sands Lease, Environmental Research Monograph 1973-3, Published by Syncrude Canada Ltd.
Susan McRory, Alberta Justice Environmental Coordinator. 2010. Summary of the Facts, Docket No. 090157926P1, In the Provincial Court of Alberta Criminal Division between Her Majesty the Queen and Syncrude Canada Ltd.
Transcript for May 12, 2010, St. Albert Alberta, in the trial of Her Majesty the Queen versus Syncrude Canada Ltd. Available at http://www.edmontonjournal.com/pdf/may12transcript.pdf
Environment Canada website, Development of a New Regulatory Approach to the Management of Incidental Take of Migratory Birds, http://www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=FA4AC736-1, accessed May 18, 2010
Environment Canada website. About Incidental Take, http://www.ec.gc.ca/paom-itmb/default.asp?lang=en&n=17F9BCD1-1, accessed May 18, 2010
Environment Canada website. 2007. Summary of Environment Canada’s approach to the Incidental take of Migratory Birds under the Migratory Birds Convention Act, 1994, http://www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=EB70151C-1, accessed May 18, 2010
Environment Canada website. 2007. Environment Canada Background Document on the Management of Incidental Take of Migratory Birds: Towards an Updated Regulatory Approach, http://www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=F8C0333F-1, accessed May 18, 2010
MBCA 5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.
EPEA Section 155 A person who keeps, stores or transports a hazardous substance or pesticide shall do so in a manner that ensures that the hazardous substance or pesticide does not directly or indirectly come into contact with or contaminate any animals, plants, food or drink.