Federal Environmental Laws
At the federal level, the environmental legislation that most commonly applies to mines in BC is the Fisheries Act and the Canadian Environmental Protection, 1999 (CEPA).58
Fisheries Act
Note: In 2012, Canada’s federal government severely amended the Fisheries Act. One of the major changes is the shift away from protection of fish habitat to protection of fisheries. The following discussion cites the provisions of Bill C-38, which, although not in force at the time of writing, received Royal Assent on 29 June 2012.
Under the Fisheries Act, inspectors have broad powers to enter places, premises, vehicles or vessels (that are not used as private dwelling places), where activities have been carried out, are being carried out, or are likely to be carried out, that result in the alteration or disruption of fish habitat, or in the deposit of a substance in water frequented by fish.59 These powers include the right to conduct inspections, examine and sample substances and products, and conduct tests and measurements.60 In addition, an inspector may direct a proponent to take remedial measures where he deems it to be necessary.61 Proponents are required to provide inspectors with all reasonable assistance required to carry out the inspector’s duties.62
If a proponent is found to be:
- carrying out unauthorized work that results in the harmful alteration or disruption, or the destruction, of fish habitat or in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery; or
- throwing overboard ballast, coal ashes, stones or other deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on or deposits or permit the deposit of a deleterious substance of any type in water frequented by fish;
the proponent may be penalized as follows.63
Upon conviction of a summary offence
| Type of Proponent | First/Subsequent | Min Fine | Max Fine | Imprisonment |
|---|---|---|---|---|
| Individual | First | $5,000 | $300,000 | N/A |
| Individual | Second/Subsequent | $10,000 | $600,000 | 6 months max. |
| Small Revenue Corporation64 | First | $25,000 | $2,000,000 | N/A |
| Small Revenue Corporation | Second/Subsequent | $50,000 | $4,000,000 | N/A |
| Large Revenue Corporation | First | $100,000 | $4,000,000 | N/A |
| Large Revenue Corporation | Second/Subsequent | $200,000 | $8,000,000 | N/A |
Upon conviction of an indictable offence
| Type of Proponent | First/Subsequent | Min Fine | Max Fine | Imprisonment |
|---|---|---|---|---|
| Individual | First | $15,000 | $1,000,000 | N/A |
| Individual | Second/Subsequent | $30,000 | $2,000,000 | 3 years max. |
| Small Revenue Corporation | First | $75,000 | $4,000,000 | N/A |
| Small Revenue Corporation | Second/Subsequent | $150,000 | $8,000,000 | N/A |
| Large Revenue Corporation | First | $500,000 | $6,000,000 | N/A |
| Large Revenue Corporation | Second/Subsequent | $1,000,000 | $12,000,000 | N/A |
Other offences listed under the Fisheries Act include failure to provide requested information or required reports or take required remedial measures.65 In addition to the punishments listed above, the Fisheries Act empowers the court to impose additional fines if a proponent acquires monetary benefits as a result of the offence.66 The court may also:
- cancel any licence or suspend any licence for a period of time;67
- prohibit the proponent from applying for a new licence within a set time period;68 and
- make other orders containing a wide range of prohibitions, directions or requirements.69
Liability for unauthorized deposits of deleterious substances in water frequented by fish is joint and several.70 However, these strict liability offences are subject to the due diligence defence. Where a proponent can show due diligence, they will not be found guilty (irrespective of the environmental harm that occurred).71
The administration and enforcement of the provisions relating to fisheries protection (formerly fish habitat protection) and pollution prevention must be summarized by the regulatory authority in an annual report.72 This report must include a statistical summary of convictions for that year.73 It remains to be seen what the recent amendments to the Fisheries Act will mean for the protection Canada’s fisheries and fish habitat, and what penalties will be imposed upon proponents who violate the law.
Canadian Environmental Protection Act, 1999 (CEPA)
Compliance with [CEPA] and its regulations is mandatory. Enforcement officials throughout Canada will apply the Act in a manner that is fair, predictable and consistent. … Enforcement officials will examine every suspected violation of which they have knowledge, and will take action consistent with this Enforcement & Compliance Policy.
– Canadian Environmental Protection Act Enforcement & Compliance Policy74
CEPA governs a number of toxic substances that may be used or produced at mines in BC.75 Enforcement officers are granted broad powers to inspect any place where toxic substances are located.76 These powers include rights to examine toxic substances, open and examine packages believed to contain toxic substances, examine relevant records, take samples, conduct tests and take measurements.77 Where an enforcement officer has reasonable grounds to believe the proponent is in non-compliance, he may issue an Environmental Protection Compliance Order.78 This order may require the proponent to take one or a number of different measures, including:79
- refraining from doing the contravening action;
- stopping or shutting down an activity;
- unloading or reloading the contents of any conveyance;
- taking any other measure that the enforcement officer considers necessary to:
- facilitate compliance with the order;
- restore the components of the environment damaged by the alleged contravention; or
- protect the components of the environment put at risk by the alleged contravention.
CEPA also contains several unique enforcement provisions, such as:
- any adult Canadian may request the government to investigate an alleged offence;80
- if the government fails to act, or gives an unreasonable response to such a request, the person who made the request is granted standing to bring an “Environmental Protection Action”;81 and
- any person who is about to suffer loss or damage as a result of a contravention of the Act may seek an injunction to stop the associated conduct.82
These legal provisions theoretically establish broad enforcement powers. However, as with BC’s environmental laws, these enforcement provisions are infrequently applied.83 Similarly, the federal government has rarely, if ever, exercised its discretionary power to enforce environmental laws on provincial lands or waters because of trans-boundary environmental concerns.84