(Source: CBC News) A major operator in Alberta’s oilsands is appealing a $278,000 regulatory fine it was issued after hundreds of birds died in one of its toxic tailings ponds. 

Canadian Natural Resources Ltd. was sanctioned last year by the Alberta Energy Regulator for not stopping the birds from nesting on an island that emerged from a pond at the Horizon oilsands mine, about 60 kilometres north of Fort McMurray.  

Throughout the spring and summer of 2022, more than 400 California gulls died from exposure to the contaminated water.

CNRL was convicted of a single count under the Environmental Protection and Enhancement Act for failing to safely contain the hazardous substances that are found in their tailings ponds.

Six months since the fine was levied, the AER has now granted the Calgary-based company leave to appeal the sanction.

Critics say CNRL should take accountability for the environmental infractions. 

“It sends the wrong message,” said David Spink, an environmental consultant and former industry regulator with the Alberta government.

“There’s no question that the birds died and there’s no question that it was your facility that was responsible.” 

In a statement to CBC News, AER said the sanction is eligible for an appeal under the regulations laid out in the Responsible Energy Development Act but a hearing date has not yet been set. CNRL declined to comment, citing the pending review. 

Spink, who once served as a director of air and water approvals for Alberta, said the fine is small price to pay for an oil and gas giant such as CNRL. The Calgary-based operator reported a net income of $8.2 billion in 2023.

The appeal demonstrates that CNRL is unwilling to answer for its infractions, he said.

“They may not be eager to accept this blemish on their environmental record,” he said.

The contravention is among a string of mass bird deaths in the oilsands.

The high-profile landings prompted years of research and monitoring aimed at preventing flocks from dying in Alberta’s expanse of tailings ponds. 

The Athabasca oilsands are at the centre of a major migratory pathway for birds and protecting the species that fly over the region is a condition of licence for all oilsands producers.

CNRL has previously denied its negligence in the 2022 bird deaths. At the time, the company argued that it should not be held to a “standard of perfection” in its efforts to protect the birds. 

The regulator in turn, ruled that CNRL did not take reasonable steps to prevent the deaths by failing to destroy the island before it became a nesting site. 

Colleen Cassady St. Clair, a University of Alberta biologist and expert in bird deaths in the oilsands, said CNRL should have known that islands in tailings ponds were attractive to birds and posed a risk to passing flocks.

St. Clair was the lead researcher of the Research on Avian Protection Project, a three-year study that examined how to better protect birds in Alberta’s oilsands after 1,600 died at a Syncrude tailings pond in 2008.

She said the industrial hazards to birds have been well understood for decades. 

“They had lots of warning,” she said.  “They don’t have to be perfect, but they should be trying to absolutely minimize those mortalities.

“It’s hard to see an argument that they couldn’t have anticipated this problem.” 

The case dates back to the spring of 2022 when workers at the mine discovered birds on the island in an area known as Tar River Valley on the north side of the Horizon mine.

The island had taken shape the previous spring, at the centre of a tailings pond, due to receding waters and re-emerged the following year. 

According to the CNRL’s formal bird protection protocols, such islands should be destroyed to prevent birds from touching down. But the company failed to act in this case. They considered the island low risk as birds had initially shown no interest.

The small stretch of land soon became a nesting and hatching site for colonies of birds.

By May 21, 2022, CNRL workers counted a single Canada goose nest and 271 California gull nests along its beaches. 

The company informed the regulator on June 7, more than two weeks later. By then, CNRL reported that it had installed bird deterrents on the island, including pyrotechnics and rockets.

But the hazing efforts were unsuccessful. Each day, the gulls would disperse and land again. 

On July 12, CNRL reported that between 60 and 70 California gull chicks had been discovered on the island, covered in oil.

As the weeks went on, workers kept finding carcasses and gull chicks fouled with bitumen. Predators including wolves and coyotes passed through the shallow water to hunt on the island, feeding on the contaminated flocks and flushing more birds into the toxic waters. 

The situation continued until Aug. 4, when the surviving chicks were old enough to fly away.

According to the regulator, 411 birds died before the island was finally destroyed that September.

Even a light oiling can threaten their survival, interfering with their ability to eat, fly and protect themselves from the elements.

Soiled birds can become trapped in the thick liquid, often drowning from the weight on their feathers.

The toxic slurry found in tailings can not only make the birds sick, it can also prove toxic to other wildlife which consume them. 

The company argued that, due to the Migratory Bird Convention Act, there was little they could do once the nests were established. 

St. Clair described that argument as “slippery” and said the findings of the AER investigation were clear. 

“Many months of inaction is not consistent with an attitude of due diligence,” she said.  

It’s hard to fathom why CNRL has launched an appeal and it will erode public confidence in the operator, she said.  

“I think the public has some tolerance for mistakes, whether it’s this industry or any other industry, and less tolerance for evasion of responsibility.”