Discretionary Laws
While discretion does not preclude people from doing good work; it tends to reduce the consistency and accountability for specific outcomes and standards of practice.86
Issue
BC’s regulatory authorities are granted broad discretion in implementing environmental and social protection measures.87 Such discretion can be problematic because it allows for inconsistent application of the law.88 Furthermore, when broad discretion is coupled with no minimum legal requirements, the regulatory authority may elect not to enforce laws relating to environmental and social protection measures.89 For example, when the government found excessive concentrations of mercury in the tailings of the Golden Bear mine in Northern BC, the regulatory authority did not require the company to stop discharging the pollutant. Instead, the government allowed the company to continue discharging mercury so long as it did not show up at the downstream monitoring location.90
Similarly, under Canada’s Fisheries Act, the government has discretion to require modifications or restrictions to an activity, or alternatively, ending the activity causing the offence.91
Recommended Solutions
Require inspections at all stages of mining life cycle and at minimum frequencies
[Tags: Enforcement; Inspections]
Although BC’s inspectors have broad powers to perform inspections under the Mines Act and the Environmental Management Act, there is no positive duty on any 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.92
By contrast, Ontario’s mining legislation imposes a positive duty on inspectors to determine if the terms and conditions of licences, leases, exploration plans, permits, closure plans, and any other approvals issued under the mining law are being complied with.93 This duty requires that investigations take place throughout all stages of the life cycle of a mine.
Inspections early in the mining process are imperative to ensure that any problems are discovered early on. The need for inspections early in the mining process is recognized in several jurisdictions. For example, in Washington, legal provisions mandate that additional inspections are to be conducted during the construction phase of the mining operations to ensure compliance.94 Under European Union law, member states are to ensure that inspections be carried out prior to the commencement of deposit operations, and at regular intervals thereafter.95
In recognition of the importance of frequent mine inspections to ensure ongoing compliance, some jurisdictions have also enacted explicit legal provisions mandating a minimum number of mine site inspections. For example, in Washington, mines must be inspected at least quarterly, unless prevented by inclement weather conditions.96 In California, mine inspections must be carried out at least once a year.97
Establish minimum sentencing for environmental offences
[Tags: Enforcement; Fines]
Canada’s Environmental Enforcement Act recently amended various federal environmental statutes to provide for minimum fines for serious offences. For example, large revenue corporations who are found guilty of a summary conviction offence or indictable offence are liable for minimum fines of $100,000 and $500,000 respectively.98