Though the heavens fall

Having stuck up for Syncrude in the early stages of the blind, agonizing struggle over the Case of the Bitumen-Bathed Birds, I ought to express my disapproval of the high-pitched political threats made yesterday by the consortium’s lawyer, Robert White. White told the press that “If… Syncrude is guilty of this crime, the government is complicit and the industry is doomed… If by having a tailings pond we’re guilty of this charge, we have to stop having tailings ponds.”

When some business holds itself hostage, and argues that it must either be allowed to continue perpetrating illegal behaviour or it will vanish from existence, it’s a near-certain sign that its other legal and moral defences aren’t getting the job done. In this case the behaviour is only arguably illegal—that remains to be decided—but White isn’t arguing that it was, in fact, legal. His argument is that, no matter what the judge or any fair-minded observer might find, the consequences of a guilty verdict are simply intolerable. He has departed from making a defence under the law, and chosen to attack the power of the court to decide what the law is.

This would be understandable if the law, in this case, were unreasonable, dangerously subjective, or tyrannical. Speaking as someone who would be as happy as a cat in a yarn factory if the regulatory apparatus of state were reduced to 1% of its current size, I don’t see that this is so. Reasonable efforts to protect migratory birds, as the judge rightly reminded White this morning, are among the conditions of Syncrude’s license to create gigantic tailings ponds. The key issue in the trial is whether the efforts Syncrude did make were, in fact, reasonable. “Provincial law does not require that Syncrude performs the impossible,” observed Judge Tjosvold; he might have added that if Syncrude’s activity is inherently incompatible with provincial law, then either legislators must change the law or Syncrude must stop. That’s what the word “law” means, yes?

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