DeSmog Canada put Alberta’s “creative sentencing” process under a spotlight late last week, looking back on the use of the C$2.45 million in penalties that Syncrude Canada paid after it failed to prevent the deaths of an estimated 1,600 ducks on one of its tailings ponds in 2010.
The story is as current as this week’s headlines, appearing just days after another 123 birds died or will be euthanized after landing on a Suncor tailings pond, and a few days before Syncrude appears in court in another case involving blue herons.
“Convictions like Syncrude’s are supposed to help to prevent the deaths of waterfowl on oilsands sites,” writes Mount Royal University journalism professor Janice Paskey. “So why are we here again?”
After Syncrude was found to have broken federal and provincial laws in the 2010 trial, it was assessed a $3-million penalty, the large majority of which was to be paid out to community beneficiaries in what became the biggest “creative sentence” in the province’s history. “A deeper look at what happened to the $2.45 million provides a glimpse into the intriguing world of creative sentencing and how companies like Syncrude, along with a tight-knit network of organizations, can quietly benefit from environmental crimes while avoiding public scrutiny,” Paskey notes.
Paskey and her research team, including DeSmog reporter James Wilt, reviewed 83 creative sentences for environmental crimes in Alberta, discovering that beneficiaries of creative sentencing awards “are usually hand-selected by both prosecution and defence and presented to the judge for consideration. There is no opportunity to apply for creative sentencing funds, and no rationale is provided to the public as to why certain candidates are chosen over others—though our research shows connections to offending companies sure can help.”
It would seem that environmental law campaigners like Ecojustice, on the other hand, need not apply.
Often, companies convicted of environmental wrongdoing can distribute their creative sentencing awards as “sponsors” or “donors”, gaining “a possible reputational boost for what is seen publicly as philanthropy,” Paskey notes. While the University of Alberta has been the main beneficiary of the program, funds have sometimes been directed to the Canadian Association of Petroleum Producers, and in one instance, to a government department.
In the tailings pond case, the three recipients of Syncrude’s mandatory largesse were the U of A ($1.3 million), the Alberta Conservation Association ($900,000), and Keyano College ($250,000). The bulk of the funds were to go for improved research on bird monitoring and deterrence, even though Syncrude’s sentencing hearing heard it had failed to use existing research—including the company’s own studies dating back to the 1980s—to minimize risk at its site.
The court ordered Syncrude to respond to the report produced with the University of Alberta grant, but gave the company the option of implementing measures it found “reasonable, reliable, and cost-effective”. In the end, Syncrude responded to 21 of 43 recommendations, and failed to mention some of the specific cautions in the report. After the provincial ministry of environment failed to appeal the company’s response, the bird monitoring program “was privatized and [taken] largely out of public view,” Paskey notes.
“Looking back, Syncrude’s creative sentence can be said to be investing in research and education—but given the new Syncrude charges, it didn’t seem to address weaknesses in the system,” she writes. “Perhaps, the notion of preventing migratory birds from landing on tailings ponds some 640 football fields in size is just not doable. But companies are obliged to try.”