July 13, 2010
More than just Syncrude Canada was on trial last month for the oily death of migratory birds in a northern Alberta tailings pond. Oil sands and mining companies feared, and environmental lawyers argued, that the future of tailings ponds in general was at risk. Syncrude warned about any precedent that might be set.
In his ruling, Provincial Court Judge Ken Tjosvold wrote, "Clearly, not every space under a flyway should be labeled an 'area frequented by migratory birds.' However a large body of water (and other substances in this case) without sufficient operating deterrents located under the flyways will inevitably be attractive to migrating waterfowl. I am satisfied that effective operating deterrents can reduce the number of birds that will land on the water body, but I find that the [Syncrude's] cannons and effigies were not operating at the Aurora Settling Basin on April 28, 2008."
In other words, even in areas thick with migratory birds, companies can get a pass if they can create pockets in which migratory birds do not land, essentially altering the birds' natural path.
"It is a sensible and reasonable interpretation of the definition of 'area frequented by migratory birds'," comments Dennis Mahony. (Torys was not involved in the dispute.) "If the tailings ponds operator can put in place mechanisms to keep the birds away, it can effectively prevent that area from being an area frequented by migratory birds. That takes the fear out of the potential conclusion that tailings pond facilities are inherently unlawful. The judge essentially concluded each case will be assessed on its facts and a tailings pond owner can affect the otherwise natural condition of a migratory area."