Summary
In the 1980s, a study of environmental law in Canada showed that although legislative and regulatory measures were satisfactory in principle, enforcement efforts had been inconsistent and inadequate in practice. This problem was coined the “implementation gap”. Thirty years later, the same problem still exists. As discussed in Chapter 8: Compliance and Enforcement in the Mining Sector, legal provisions exist to support strong law enforcement at mines in BC. The problem lies in practical implementation, or lack of implementation, of these laws. Accordingly, this chapter reviews the existing enforcement regime for mining activities in BC, discusses key issues facing the enforcement of environmental laws at mines in BC and suggests ways to improve enforcement at mine sites and protection of local communities and ecosystems from mining activities based on model laws from other jurisdictions.
In BC, mine proponents must comply with commitments and obligations under an Environmental Assessment Certificate, provincial mining legislation and mine permit conditions, provincial and federal environmental legislation and licences issued thereunder, and legal obligations and licences issued under other legislation (e.g. forestry, transportation, right-of-ways, etc.).
Under British Columbia’s Environmental Assessment Act, the regulatory authority is granted broad powers to inspect any works or activities connected with a reviewable project. However, despite having powers to implement strong sanctions for non-compliance, the EAO has been criticized for failing to enforce EA commitments and conditions
Compliance provisions are provided under both the provincial Mineral Tenure Act and Mines Act. Additionally, legal provisions under BC’s Mines Act empower inspectors to inspect mines. Under the Mineral Tenure Act, if a proponent contravenes the Mineral Tenure Act, Criminal Code, Heritage Conservation Act, Mines Act or associated regulations, BC’s Chief Gold Commissioner is empowered to order the proponent to come into compliance within a specified period of time, suspend the proponent’s Free Miner Certificate (FMC) suspend any exploration or mineral development or production until the proponent complies and cancel a mineral claim if the proponent deliberately fails to comply with orders or other legal requirements.
Failure to comply with the Mines Act, regulations, the Health, Safety and Reclamation Code (HSR Code), or orders made under these instruments, constitutes an offence, for which, upon conviction, a proponent may be given a fine up to $100,000, imprisoned for up to one year, or sentenced to a fine and imprisonment.
Under the Environmental Management Act, the Conservation Officer Service (COS), the enforcement arm of the Ministry of Environment, is given broad powers to conduct inspections and investigations. COS’s enforcement powers at mines are relatively restricted, although it is empowered to issue a remediation order when asked to do so by the Chief Inspector or where the land or water use is “formally changed” from that approved under the mine permit.
Various offences that may occur at mine sites are also listed under the Water Act. Under the Water Act, the maximum sentences for proponents who commit non-continuing offences are a maximum fine of $200,000, maximum imprisonment of 6 months, or both, and for continuing offences a maximum fine of $200,000 for each day the offence continues, maximum imprisonment of 6 months, or both. The Water Act also lists high-penalty offences, for which the penalty includes increased fines (maximum of $1 million) and lengthier imprisonment terms (maximum one year).
Under the federal Fisheries Act, inspectors have broad powers to conduct inspections, examine and sample substances and products, and conduct tests and measurements. Offences under the Fisheries Act include both summary and indictable offences.
The Canadian Environmental Projection Act (CEPA) governs a number of toxic substances that may be used or produced at mines in BC. Enforcement officers are granted broad powers to inspect any place where toxic substances are located. Enforcement officers may issue an order requiring proponents to refrain from doing a contravening action, stopping or shutting down an activity, unloading or reloading the contents of any conveyance and taking other measures he or she considers necessary to facilitate compliance or restore or protect the components of the environment damaged or put at risk by the alleged contravention. CEPA also permits any adult Canadian to request that the government investigate an alleged offence.
BC’s regulatory authorities are granted broad discretion in implementing environmental and social protection measures, which can allow for inconsistent application of the law. Also, where there are no minimum legal requirements, the regulatory authority may simply decide not to enforce laws relating to environmental and social protection. For example, neither the Environmental Management Act nor the Mines Act requires an independent body to ensure compliance throughout the various stages of the lifecycle of a mine. The Mines Act merely provides that an inspector may at any time inspect a mine. Other jurisdictions provide more direction to the regulatory authority, with laws that require inspections at all stages of the mining life cycle and at designated frequencies and establish sentencing for environmental offences.
There has been an increasing trend towards replacing actual intervention with voluntary compliance and technical advice. The failings of this approach have been widely recognized. In BC, the Chief Inspector is not required to include specific information in annual compliance reports. Public disclosure of the identities of violators has been recognized as a powerful deterrent to non-compliance. Accordingly, other jurisdictions have enacted laws that require the disclosure of monitoring reports, compliance results and offences to the public. Some jurisdictions have also enacted legal provisions that grant individuals the right to request or initiate public investigation of alleged offences and grant enforcement powers to the public and local communities. In addition, other jurisdictions have laws that grant standing to members of the public to sue for environmental harm caused by mining activities, involve Indigenous people in proponent compliance and enforcement and grant enforcement powers to local government and enforcement officials. BC should enact similar laws that allow First Nations, interest groups, and members of the public to contribute to the enforcement of environmental law.
One of the greatest challenges to effective enforcement is the lack of government capacity and availability of resources. Over the past decade, provincial and federal government departments responsible for enforcement at mines have suffered from severe budget cuts, which has resulted in a reduced workforce, a significant reduction in the number of site inspections and prosecutions and a deterioration of the protection of local communities. Other jurisdictions address capacity issues through laws that charge fees to recover inspection and administrative costs associated with issuing orders and allow recovery of enforcement and remediation costs from proponents.
To address jurisdictional issues regarding the enforcement of environmental laws, the federal and provincial governments have established a harmonization process for inspection and enforcement of environmental protection laws. For example, under Canada’s amended Fisheries Act, the federal and provincial governments can enter into agreements to download responsibility for administration and enforcement to the Province. These agreements increase the burden on already resource-poor provincial regulators, permit governments to effectively abandon the field, risk the possibility that neither level of government will assume responsibility and risk a bias where one level of government is benefiting financially from a project. Other jurisdictions address these issues by appointing an independent monitoring and enforcement agency for mining activities, prohibiting persons with conflicts of interest from carrying out mine inspections and creating a specialized court to rule on environmental matters. Enforcement activities could also be co-ordinated through the provincial inter-agency compliance and enforcement committee, which BC’s Environmental Assessment Office recently joined.
Although proponents in BC may face penalties for disobeying the law, those penalties do not always reflect damage caused by the offence. Nor do the sentences necessarily require the proponent to pay for remediation. Laws in other jurisdictions expand liability to hold proponents financially responsible for damage they cause to Indigenous knowledge systems, local economies and livelihoods, and biological diversity. Recognizing that consultants hired by proponents to complete environmental assessments need to be held accountable, other jurisdictions have extended liability to consultants completing environmental assessments. Other jurisdictions also empower the courts to order that proponents post security, provide for cancellation of mineral tenure for continued non-compliance, prohibit offenders from applying for new licences, subject mining companies to profit stripping, legislate heavier penalties for repeat offenders, encourage creative sentencing provisions, establish long or indefinite limitation periods for commencing an action and replace strict liability offences with absolute liability offences for mining activities.