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ST. ALBERT, Alta. - Syncrude Canada failed Thursday to get a judge to toss the case against the oilsands giant over the deaths of 1,600 migrating ducks in one of its chemical tarpits.

Provincial court judge Ken Tjosvold rejected Syncrude's argument as legal hair-splitting.

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"Regardless of the verdict we will be encouraging people to file private prosecutions to hold these companies accountable for the toxic mess they are creating," said Sheila Muxlow of the Sierra Club.

"The federal government has argued that toxic tailing lakes violate Canada's environmental laws and we agree. These companies should never have been able to create the 170 square kilometres of toxic lakes that we now have to deal with.

"If the government refuses to continue pursuing companies that have toxic tailing lakes, which by their existence violate Canada's Migratory Bird Act, we will urge residents to use private prosecutions to try do the government's job for them."

Tailings ponds are massive lakes contained by earthen walls around Fort McMurray. They are a poisonous cocktail of water, clay, leftover bitumen and heavy metals from massive oilsands operations, where crews either drill down into or scrape off huge tracts of land to get at oil mixed with water and sand below.

Employee statements and other evidence entered into evidence have painted a picture of a company that had inexplicably let its safety systems lapse into disarray in the years and days before the deaths.

By law, the company must take steps to prevent birds from landing on the tailings pits, including the 12-square-kilometre Aurora pond. Firing off noise cannons and putting up scarecrows are two methods. Court heard that a month before the disaster the province asked Syncrude why it had allowed, over the previous eight years, the number of cannons to drop until they were just a small fraction of their former strength. Syncrude officials said they didn't know why.