Compliance and Enforcement in the Mining Sector

Footnotes

  1. Linda F Duncan, “Enforcement and Compliance” in Elaine Hughes, Alastair R Lucas, and William A Tilleman eds, Environmental Law and Policy, 3 ed (Toronto: Emond Montgomery Publications Limited, 2003) 347 at 360.
  2. Linda F Duncan Effective Environmental Enforcement: The Missing Link to Sustainable Development (LLM Thesis, Dalhousie University Law School, 1999) at 13 [unpublished].
  3. Peter Krahn, “Enforcement versus voluntary compliance: An examination of the strategic enforcement initiatives implemented by the Pacific and Yukon Regional office of Environment Canada: 1983 to 1998” (Paper delivered at the 5th Conference on Environmental Compliance and Enforcement Proceedings, Monterey, CA, November 1998) at 38 [unpublished].
  4. DN Dewees, “The Effect of Environmental Regulation: Mercury and Sulphur Dioxide” in ML Friedland, ed, Securing Compliance: Seven Case Studies (Toronto: University of Toronto Press, 1990) 354.
  5. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 11.
  6. British Columbia, Office of the Auditor General, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: Office of the Auditor General, 2011) at 18, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>.
  7. In addition, proponents may be bound by the terms of agreements with third parties, such as First Nations and landowners. A review of contract law is beyond the scope of this document. Therefore, enforcement of these commitments is not discussed.
  8. See Mine Development and Operation chapter for a discussion of other operating licences required for mining activities.
  9. The primary government ministries at the federal level are the Department of Fisheries and Oceans (DFO) and Environment Canada. At the provincial level, the primary ministries are the Ministry of Environment, the Ministry of Energy and Mines, and the Ministry of Natural Resource Operations.
  10. Environmental Assessment Act, SBC 2002, c 43, s 33 (for any purpose related to the administration or enforcement of the Act or related regulations).
  11. British Columbia, Environmental Assessment Office, Environmental Assessment Office User Guide (Victoria: Environmental Assessment Office, 2010) at 38, online: <http://www.eao.gov.bc.ca/pdf/EAO_User_Guide.pdf>. According to provincial policy, EAO staff may respond to non-compliances by applying a range of options from education, through formal letters, penalties and ultimately certificate suspension or cancellation.
  12. Environmental Assessment Act, SBC 2002, c 43, s 34(1)(b).
  13. Environmental Assessment Act, SBC 2002, c 43, s 34(1)(b).
  14. Environmental Assessment Act, SBC 2002, c 43, ss 37(1)(a), 37(2)(c), 41(2)(b)(i).
  15. Environmental Assessment Act, SBC 2002, c 43, ss 37(1)(a), 37(2)(c), 41(2)(b)(i).
  16. Environmental Assessment Act, SBC 2002, c 43, ss 37(1)(b), 37(2)(c), 41(2)(b)(i).
  17. Mark Haddock, Environmental Assessment in BC (Victoria: University of Victoria Environmental Law Centre, 2010) at 68; Note that even if the EAO was exercising its powers, its actions could still be over-ridden by the BC Minister of the Environment who retains broad discretion to reinstate a cancelled or suspended EA Certificate, and cancel any conditions previously attached to the Certificate, see: Environmental Assessment Act, SBC 2002, c 43, s 40.
  18. British Columbia, Office of the Auditor General, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: Office of the Auditor General, 2011) at 19, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>.
  19. West Coast Environmental Law, Please Hold. Someone Will Be With You: A report on diminished monitoring and enforcement capacity in the Ministry of Water, Land and Air Protection (Vancouver: West Coast Environmental Law, 2004), online: WCEL <http://wcel.org/sites/default/files/publications/Please%20Hold%20-%20A%20Report%20on%20Diminished%20Monitoring%20and%20Enforcement%20Capacity%20in%20the%20Ministry%20of%20Water,%20Land%20and%20Air%20Protection.pdf>. Although the EAO User Guide provides that inspections may be undertaken where appropriate, government staff report that successive staff and budget cuts have had significant impacts on their enforcement capabilities and they do not consider the enforcement of EA certificates to be within their mandate.
  20. British Columbia, Office of the Auditor General, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: Office of the Auditor General, 2011) at 18, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>.
  21. British Columbia, Office of the Auditor General, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: Office of the Auditor General, 2011) at 10, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>. The EAO’s commitment is in response to the Auditor General’s recommendation to: “Provide appropriate accountability information for projects certified through the environmental assessment process”.
  22. Mineral Tenure Act, RSBC 1996 c 292, s 10(1).
  23. Mineral Tenure Act, RSBC 1996 c 292, s 10(1).
  24. Mineral Tenure Act, RSBC 1996 c 292, s 10(3).
  25. Mineral Tenure Act, RSBC 1996 c 292, s 18(1).
  26. Mineral Tenure Act, RSBC 1996 c 292, s 18(2).
  27. Mineral Tenure Act, RSBC 1996 c 292, s 18(4).
  28. Mineral Tenure Act, RSBC 1996 c 292, ss 18(6),(7).
  29. Mines Act, RSBC 1996 c 293, s 24.
  30. Mines Act, RSBC 1996 c 293, s 10(8).
  31. Mines Act, RSBC 1996 c 293, ss 5,6,15(1).
  32. Mines Act, RSBC 1996 c 293, s 35(1). The legal requirements include any provision of the Act, the regulations, the Code, permit, or an order made under section 15 of the Mines Act.
  33. Mines Act, RSBC 1996 c 293 s 15(4)(d). Remedial action contained in an inspection report.
  34. Mines Act, RSBC 1996 c 293, s 15(4.1).
  35. Mines Act, RSBC 1996 c 293, ss 37(2)(3); Nancy Bircher, “Making it Happen: The evolution of pulp and paper mill compliance in BC”, (Paper delivered at the Fifth International Conference on Environmental Compliance and Enforcement, Monterey, CA November 1998) 73 at 76, online: <http://www.inece.org/5thvol2/bircher2.pdf>. Compare this to the successful history of pollution prevention at pulp and paper mills in the province, where maximum penalties for pollution offences were set at $1 million per day with potential jail sentences of up to three years.
  36. Mines Act, RSBC 1996 c 293, s 37(5).
  37. Mines Act, RSBC 1996 c 293, s 37(4).
  38. Mines Act, RSBC 1996 c 293, s 35(2).
  39. British Columbia, Forest Practices Board, Special Investigation 99002: Significant breaches of the Forest Practices Code along the power line corridor for the Kemess South Mine (Victoria: Forest Practices Board, 2000) at 21, online: <http://www.fpb.gov.bc.ca/SIR04_Significant_Breaches_of_the_Forest_Practices_Code_along_the_Power_Line_Corridor_for_the_Kemess_South_Mine.pdf>. “In 1999, the Forest Practices Board investigated non-compliance issues related to the construction of the power line to the South Kemess mine in northern BC. Ineffective enforcement allowed the licensees to continue to delay corrective actions for extended periods. The Board found that while [the Ministry of Energy and Mines] issued corrective orders under the Mines Act, it failed to enforce those orders and stated that this was a “significant breach of government’s enforcement duties under the (Forest Practices) Code”.
  40. Mines Act, RSBC 1996 c 293, s 15.
  41. Environmental Management Act, SBC 2003 c 53, ss107, 109; British Columbia, Ministry of Environment, Compliance and Enforcement Policy and Procedure, Version 2, (Victoria: Ministry of Environment, 2009) at 11-12. “Designated ministry staff, primarily Conservation Officers and Park Rangers, are authorized to conduct investigations”; “Inspections include reviewing monitoring data or other materials supplied by the regulated party.”; British Columbia, Ministry of Environment, Compliance and Enforcement Policy and Procedure, Version 2, (Victoria: Ministry of Environment, 2009) at 16-20. The MOE Compliance and Enforcement Policy and Procedure sets out a non-compliance decision matrix, where “the most important factor in determining an appropriate response is the effectiveness of the tool in achieving compliance as quickly as possible with no recurrence”. Available compliance tools include advisory, warning (document that notifies a party that they are not in compliance with a specific regulatory requirement and warns of an escalating response should non-compliance continue), order, administrative sanction (suspension, restriction, or cancellation of ministry authorizations, including approvals, licences or permits), ticket (a charging document which may be used instead of “formal charges.” .
  42. British Columbia, Ministry of Environment, Compliance and Enforcement Policy and Procedure, Version 2, (Victoria: Ministry of Environment, 2009) at 11.
  43. Environmental Management Act, SBC 2003 c 53, ss 109(4)-(6).
  44. Environmental Management Act, SBC 2003 c 53, ss 66(2), 67(2), 68(2), 69. This was a change implemented in the 2002 amendments to the Waste Management Act which altered the enforcement powers of the Ministry of Water, Land and Air Protection managers by restricting them from issuing pollution prevention and pollution abatement orders to certain type of mining facilities.
  45. Environmental Management Act, SBC 2003 c 53, s 68(2)(c).
  46. Maya Stano, The Raven Mine: A Regulatory & Fiscal Black Hole? (Victoria: Environmental Law Centre, 2011) at 13 (Table 1), online: <http://www.coalwatch.ca/sites/default/files/RavenCoal_BlackHole_MayaStano_ELC-Spring2011.pdf>. Notably, a recent offence by a company working on the proposed Gething Coal mine resulted in a remediation order with no associated monetary penalty. This reflects the government’s approach to merely order offenders to return to compliance levels rather than actually imposing a fine or penalty for the offence.
  47. Water Act, RSBC 1996 c 483 s 93(2)(j).
  48. Water Act, RSBC 1996 c 483, ss 93(2)(k),(l).
  49. Water Act, RSBC 1996 c 483, ss 93(2)(n),(o).
  50. Water Act, RSBC 1996 c 483, s 93(2)(q).
  51. Water Act, RSBC 1996 c 483, s 93(2)(r).
  52. Water Act, RSBC 1996 c 483, s 93(4).
  53. Water Act, RSBC 1996 c 483, s 94(2).
  54. Water Act, RSBC 1996 c 483, s 94(1).
  55. Water Act, RSBC 1996 c 483, s 95(1).
  56. Water Act, RSBC 1996 c 483, s 97.
  57. Water Act, RSBC 1996, c 483, s 25.
  58. Fisheries Act, RSC 1985, c F-14; Canadian Environmental Protection Act, SC 1999, c 33.
  59. Fisheries Act, RSC 1985 c F-14, ss 38(3) (formerly s 38(3.1), 49(1)).
  60. Fisheries Act, RSC 1985 c F-14, s 38(3.1) (formerly s 38(3)).
  61. Fisheries Act, RSC 1985, c F-14, s 38(6).
  62. Fisheries Act, RSC 1985, c F-14, s 38(10).
  63. Fisheries Act, RSC 1985, c F-14, ss 40(1),(2),(3).
  64. Fisheries Act, RSC 1985, c F-14, s 40(2.1). Small revenue corporations are those whose gross annual revenue is less than $5,000,000.
  65. Fisheries Act, RSC 1985, c F-14, s 40(3).
  66. Fisheries Act, RSC 1985, c F-14, s 79.
  67. Fisheries Act, RSC 1985, c F-14, s 79.1(a).
  68. Fisheries Act, RSC 1985, c F-14, s 79.1(b).
  69. Fisheries Act, RSC 1985, c F-14, s 79.2.
  70. Fisheries Act, RSC 1985, c F-14, s 80.
  71. Fisheries Act, RSC 1985, c F-14, s 78.6; see R v Jack Cewe Ltd, (1987), 4 FPR 271 (BC Prov Ct), in which company took all reasonable steps in the circumstances to solve environmental problems including participating in government committee which had not identified a problem with company’s operations, complying with all government directions, and spending $1.2 million on implementing environmental protection measures.
  72. Fisheries Act, RSC 1985, c F-14, s 42.1(1).
  73. Fisheries Act, RSC 1985, c F-14, s 42.1(2).
  74. Canada, Environment Canada, Canadian Environmental Protection Act Enforcement and Compliance Policy (Ottawa: Supply & Services, 1988) at 9, online: <http://www.ec.gc.ca/alef-ewe/default.asp?lang=en&n=AF0C5063-1>.
  75. Canadian Environmental Protection Act, SC 1999, c 33, schedule 1 (list of toxic substances).
  76. Canadian Environmental Protection Act, SC 1999, c 33, s 218(1); some restrictions on private dwelling places (ss 218(2),(3)).
  77. Canadian Environmental Protection Act, SC 1999, c 33, s 218(10).
  78. Canadian Environmental Protection Act, SC 1999, c 33, s 235.
  79. Canadian Environmental Protection Act, SC 1999, c 33, s 235(4).
  80. Canadian Environmental Protection Act, SC 1999, c 33, s 17.
  81. Canadian Environmental Protection Act, SC 1999, c 33, s 22.
  82. Canadian Environmental Protection Act, SC 1999, c 33, s 39.
  83. House of Commons of Canada, The Canadian Environmental Protection Act, 1999–Five-Year Review: Closing the Gaps (Ottawa: House of Commons Standing Committee on Environment and Sustainable Development, 2007) at 44, online: <http://cmte.parl.gc.ca/Content/HOC/committee/391/envi/reports/rp2614246/envirp05/05-rep-e.htm>. As of 2007, only 34 public prosecutions had resulted in convictions under the Canadian Environmental Protection Act. This means that either there were very few infractions of CEPA or very poor enforcement. The Committee recommended that Environment Canada “create a system to measure and evaluate the role and implementation of the enforcement provisions of CEPA 1999”.
  84. Canadian Environmental Protection Act, SC 1999, c 33, s 165; David R Boyd, “Unnatural Law: Rethinking Canadian Environmental Law and Policy” (Vancouver: UBC Press, 2003) at 184.
  85. L Giroux, A Statement by the Canadian Environmental Advisory Council on Enforcement Practices of Environment Canada” (Ottawa: Minister of Supply and Services Canada, 1985); K Webb, Pollution Control in Canada: The Regulatory Approach in the 1980s (Study Paper)(Ottawa, Law Reform Commission of Canada, 1988) at 17.
  86. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 24.
  87. Mines Act, RSBC 1996 c 293, s 38(4).
  88. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 24.
  89. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 34.
  90. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 34.
  91. Fisheries Act, RSC 1985, c F-14, s 37(2).
  92. Mines Act, RSBC 1996 c 293, s 15(1).
  93. Mining Act, RSO 1990, c M.14, s 157(4).
  94. Wash Rev Code tit 78 § 44.161(2007).
  95. EC, Commission Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, [2006] OJ, L 102/15 at art 17(1).
  96. Wash Rev Code tit 78 § 44.161 (2011).
  97. California Surface Mining and Reclamation Act of 1975, 2 Cal PRC § 2774(b)(2007).
  98. Bill C-16, Environmental Enforcement Act, 2nd Sess, 40th Parl, 2009 cl 1 (assented to 18 June 2009).
  99. See e.g. Antisapian Chemical Waste Control Regulation BC Reg 300/90. David R Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy (Vancouver: UBC Press, 2003) at 33.This regulation helped reduce the aquatic discharge of toxic chemicals used as wood preservatives by the lumber industry by 90%.
  100. Linda F Duncan, “Enforcement and Compliance” in Elaine Hughes, Alastair R Lucas, and William A Tilleman eds Environmental Law and Policy, 3d ed (Toronto: Emond Montgomery Publications Limited, 2003) 348 at 360; Demonstrated by recent Ministry of Forests, Mines and Lands reference to the voluntary BC Mining Association’s Towards Sustainable Mining checklist http://www.bcbudget.gov.bc.ca/2011/sp/pdf/ministry/for.pdf at 19 and low return of inspection compliance forms – see http://www.bcbudget.gov.bc.ca/2011/sp/pdf/ministry/nro.pdf at 20-21; British Columbia, Ministry of Environment, Compliance Management Framework (Victoria: Ministry of Environment, 2007), online: <http://www.env.gov.bc.ca/compliance/mgmt_framework.html>; West Coast Environmental Law, No Response: A Survey of environmental law enforcement and compliance in BC, (Vancouver, West Coast Environmental Law, 2007) at 13. “As a proportion of the number of enforcement actions, the percentage of written warnings has actually risen since 1995. In the early 1990s, written warnings represented approximately one-third of the enforcement actions taken. In 2004 and 2005, they represented half. Since written warnings carry fewer consequences than tickets or charges, this trend may represent a shift in enforcement philosophy to a greater reliance on voluntary compliance”; Ethan Baron, “Do-it-yourself conservation: Will bears go on Facebook?” The Province (September 15, 2010) online: Canada.com <http://www2.canada.com/theprovince/news/story.html?id=5af70c01-19b5-4acc-8931-845d1ea56c44>.
  101. OECD, OECD Environmental Performance Reviews: Canada 2004, Environmental Performance Reviews, (Paris: OECD, 2004) at 17.
  102. Peter Krahn, “Enforcement versus voluntary compliance: An examination of the strategic enforcement initiatives implemented by the Pacific and Yukon Regional office of Environment Canada: 1983 to 1998” (Paper delivered at the 5th Conference on Environmental Compliance and Enforcement Proceedings, Monterey, CA, 1998) at 26, [unpublished]. “A review of 19 different regulatory groups found that those industrial sectors which relied solely on self-monitoring or voluntary compliance had a compliance rating of 60% versus the 94% average compliance rating for those industries which were subject to federal regulations combined with a consistent inspection program. Voluntary compliance programs and peer-inspection programs could not achieve satisfactory levels of compliance.”
  103. Ipsos-Reid, Environment Canada Corporate Communications Survey, 2007, cited in: Canada, Evaluation of the Enforcement Program (Ottawa: Environment Canada, 2009) at Annex 2. The same survey pointed out that more than three quarters of the population does not feel that Government is going far enough to meet its enforcement responsibilities.
  104. Mines Act, RSBC 1996 c293 s 36.
  105. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 31. Although inspection reports are publicly available, they are not online and are scattered in different files. Thus they are difficult for the public to assess.
  106. Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancovuer: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 31. The Ministry of Environment does have this type of system in place.
  107. British Columbia, Office of the Auditor General, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: Office of the Auditor General, 2011) at 20, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>.
  108. “Environmental crime: does deterrence work?”, RCMP Gazette 68:3 (2006).
  109. Nancy Bircher, “Making it Happen: The evolution of pulp and paper mill compliance in BC”, (Paper delivered at the Fifth International Conference on Environmental Compliance and Enforcement, Monterey, CA November 1998) 73 at 76, online: <http://www.inece.org/5thvol2/bircher2.pdf>. “The Ministry published media releases listing the names of companies significantly out of compliance with environmental legislation and permits”.
  110. Canadian Environmental Protection Act, SC 1999, c 33 s 12.
  111. Bill C-16, Environmental Enforcement Act, 2nd Sess, 40th Parl, 2009 cl 50.8 (assented to 18 June 2009).
  112. Canadian Environmental Protection Act, SC 1999, c 33, s 17.
  113. Canadian Environmental Protection Act, SC 1999, c 33, s 22.
  114. Canadian Environmental Protection Act, SC 1999, c 33, s 39.
  115. Environmental Rights Act, RSNWT 1988 (Supp.), c 83, s 4.
  116. Alberta Environmental Protection and Enhancement Act, RSA 2000, c E-12, s 186. Also, persons directly affected by the designation of a site as contaminated may submit a statement of concern to the ministry director (RSA 2000, c E-12, s 127).
  117. Environment Act, SNS 1994-95, c 1, s 115.
  118. Environment Act, RSY 2002, c 76, s 14.
  119. Environmental Bill of Rights, 1993, SO 1993, c 28, Part V.
  120. Office of the Auditor General of BC, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: 2011, 2011/2012 Report 4), online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO> at 18.
  121. Office of the Auditor General of BC, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: 2011, 2011/2012 Report 4), online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO> at 16.
  122. Philippine Mining Act of 1995, (Rep Act No 7942) s 70.
  123. Environment Canada, Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act – November 2001 (Ottawa: Environment Canada, 2001) online: <http://www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=D6B74D58-1&offset=2&toc=show>.
  124. Canadian Environmental Protection Act, SC 1999, c 33 s 22; Environment Canada, Formative Evaluation of CEPA 1999: Environment Canada (Ottawa: Environment Canada, 2005) Part 2.2. As of 2005, no private prosecution to enforce a provision of CEPA had been tried in court () This is not surprising given the outcomes of such efforts under other federal legislation, particularly the Fisheries Act. In the “great majority” of such cases; see, Keith Ferguson, “Challenging the Intervention and Stay of an Environmental Private Prosecution” (2004) 13 JELP 153 at 155 and 188. Attorneys-General have, for various reasons, stepped in and stayed or withdrawn the proceedings (; House of Commons, Standing Committee on Environment and Sustainable Development, Evidence related to an Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development (October 21, 1998) at para 1545 et seq, online: <http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx? COM=110&SourceId=51233&SwitchLanguage=1>. To address this barrier, comprehensive guidelines regarding the Attorney General’s entitlement to stay or take over private prosecutions of regulatory offences, have been suggested but do not yet exist; Department of Justice Canada, The Federal Prosecution Service Desktop (Ottawa: Department of Justice Canada, undated), Part VI (Policy in Certain Types of Litigation Chapter 26: Private prosecutions), online: <http://www.justice.gc.ca/en/dept/pub/fps/fpd/ch26.html>. This document contains basic “guidelines”.
  125. Waters Act, SY 2003, c 19, s 28.
  126. Environmental Rights Act, RSNWT 1988, c 83 (Supp), ss 5,6.
  127. Environmental Bill of Rights, SO 1993, c 28, s 103.
  128. Environmental Protection Act of 201,
  129. Bolivia Constitution, October 2008, online: <http://faculty.smcm.edu/mfbilgin/nueva_cpe.txt>, Article 34
  130. Republic of Ecuador, Constitution of 2008, art 397.
  131. EC, Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, O, LJ 143/56, art 12.1. “[T]he interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of subparagraph (b). Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (c).”
  132. Eva Liedholm Johnson, Mineral Rights: Legal Systems Regulatory Exploration and Exploitation (DCL Thesis, Royal Institute of Technology, 2010) (Stockholm: Royal Institute of Technology, 2010) at 67, online: <http://kth.diva-portal.org/smash/get/diva2:300248/FULLTEXT01>.
  133. Elmar Plate, Malcolm Foy and Rick Krehbiel, Best Practices for First Nation Involvement in Environmental Assessment Reviews of Development Projects in British Columbia (West Vancouver: New Relationship Trust, 2009), Best Practice No. 54.
  134. See generally, Coastal Guardian Watchmen Network, online: <http://coastalguardianwatchmen.ca/>.
  135. Ciaran O’Faircheallaigh, “Environmental agreements, EIA follow-up and aboriginal participation in environmental management: The Canadian experience” (2007) 27 Environmental Impact Assessment Review 319 at 327-328.
  136. Government of Canada, Government of the North West Territories and BHP Diamonds Inc, Environmental Agreement (January 6, 1997) art I, online: <http://www.monitoringagency.net/LinkClick.aspx?fileticket=%2bHCwiwiJm7E%3d&tabid=87>; Government of Canada, Government of the North West Territories, Diavik Diamond Mines Incorporated, Dogrib Treaty 11 Council, Lutsel K’e Dene Band, Yellowknives Dene First Nation, North Slave Metis Alliance and Kitikmeot Inuit Association, Environmental Agreement (March 8, 2000), art 1, online: <http://www.diavik.ca/documents/Diavik_Environmental_Agreement.pdf>; Government of Canada, Government of the North West Territories, De Beers Canada Mining Inc, Dogrib Treaty 11 Council, Lutsel K’e Dene Band, Yellowknives Dene First Nation and North Slave Metis Alliance Environmental Agreement De Beers Snap Lake Diamond Project (May 31, 2004) art I, online: <http://www.slema.ca/wp-content/uploads/2011/02/De-Beers-Final-Environmental-Agreement-PDF1.pdf>
  137. Nunavut Waters and Nunavut Surface Rights Tribunal Act, SC 2002, c 10, s 50:
  138. Constitution of the Federative Republic of Brazil, 1988, art 232.
  139. Wash Rev Code tit 78 § 44.050.
  140. Mining Act 1992 (Consolidated to No 49 of 2000) Papau New Guinea, s 166.
  141. Philippine Mining Act of 1995, (Rep Act No 7942) s 9.
  142. British Columbia, Annual Reports of the Chief Inspector of Mines (Victoria: Ministry of Energy and Mines, 2000-2010), online: <http://www.empr.gov.bc.ca/MINING/HEALTHANDSAFETY/CI/Pages/default.aspx>. The number of mine visits reported showed a significant drop from over two thousand annually in 2001, to less than four hundred in 2004 before rebounding to just over one thousand visits in 2008 (only half the inspections done in 2001).; Karen Campbell, Lisa Sumi, Alan Young, Undermining the Law: Addressing the crisis in compliance with environmental mining laws in BC (Vancouver: West Coast Environmental Law and Environmental Mining Council of BC, 2001) at 37-38: “In the past, sites were visited as many as eight times a year, but in some regions this number has been cut in half. More remote mine sites may not be visited at all”; Maya Stano, The Raven Mine: A Regulatory & Fiscal Black Hole? (Victoria: Environmental Law Centre, 2011) at 38, online: <http://www.coalwatch.ca/sites/default/files/RavenCoal_BlackHole_MayaStano_ELC-Spring2011.pdf>; “[T]he ability to review and comment on monitoring data dropped dramatically when staff cutbacks eliminated mining technicians. Among other things, mining technicians used to write letters to mining companies, acknowledging receipt of monitoring data, and addressing any incidents of non-compliance.”; “B.C. Budget Axes Environment” Pacific Free Press (2 March 2010) online: Pacific Free Press <http://www.pacificfreepress.com/news/1/5734-bc-budget-axes-environment.html>. MOE employees who retire are not being replaced; See: West Coast Environmental Law, Please Hold, Someone Will Be With You (Vancouver: West Coast Environmental Law, 2004) online: <http://www.wcel.org/wcelpub/2004/14099.pdf>.
  143. British Columbia, Office of the Auditor General, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: Office of the Auditor General, 2011) at 23, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>. “For example, the Greenville-to-Kincolith Road project was expected to have significant direct and indirect residual impacts on grizzly bears. Approaches to mitigate impacts resulted in an extensive program of bear–human conflict avoidance, education, enforcement and a monitoring program from 2000 to 2009. The plan, estimated to cost over $500,000, was jointly funded by the proponent (Ministry of Transportation) and the federal Department of Indian Affairs and Northern Development. Interviewees reported that this plan was successfully implemented because the budget (including resources and personnel) was secured before the environmental assessment certificate was approved”; David R Boyd, “Unnatural Law: Rethinking Canadian Environmental Law and Policy” (Vancouver: UBCPress, 2003) at 33. “In 1990, the Antisapian Chemical Waste Control Regulation (BC Reg 300/90) was especially successful at reducing the aquatic discharge of toxins from the lumber industry due to federal enforcement actions that were financed by the Fraser River Action Plan.”
  144. California Surface Mining and Reclamation Act of 1975, Cal PRC, 2 § 2774(b)(2007).
  145. Wash Rev Code tit 78 § 78.56.080(3) (2011).
  146. Environment Quality Act, RSQ, Q-2, s 31(t).
  147. Mining Act 1992 (NSW), No 29, s 240E(1).
  148. Fishery (General) Regulations, SOR 93/53, s 62.
  149. Environment Act, RSY 2002, c 76, s 19(2).
  150. Environmental Rights Act, RSNWT 1988 (Supp), c 83, s 5.
  151. Water Act, RSBC 1996, c 483, s 95(1)(c).
  152. Fisheries Act, RSC 1985, c F-14, s 38(7.1).
  153. Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, arts 10, 17. Note the competent authority must initiate cost recovery proceedings within five years of the date on which the remediation and repair measures have been completed or the date on which the liable operator, or third party, has been identified.
  154. Canadian Council of Ministers of the Environment, Inspections and Enforcement Sub-Agreement (Endorsed by CCME Council of Minister, April 30-May 1, 2001, Winnipeg) at 1,online: <http://www.ccme.ca/assets/pdf/insp_enfsubagr_e.pdf>; Canada – British Columbia Fish Habitat Management Agreement, between the Government of Canada and the Government of British Columbia (July 13, 2000), online: <http://www.dfo-mpo.gc.ca/habitat/role/141/1413/partagr-entpart/bc-cb-eng.htm >.
  155. House of Commons Standing Committee on Environment and Sustainable Development, The Canadian Environmental Protection Act, 1999–Five-Year Review: Closing The Gaps: Report of the Standing Committee on Environment and Sustainable Development (Ottawa: House of Commons Standing Committee on Environment and Sustainable Development, 2007) at para 5, online: <http://cmte.parl.gc.ca/Content/HOC/committee/391/envi/reports/rp2614246/envirp05/05-rep-e.htm>.
  156. Peter Krahn, “Enforcement versus voluntary compliance: An examination of the strategic enforcement initiatives implemented by the Pacific and Yukon Regional office of Environment Canada: 1983 to 1998” (Paper delivered at the 5th Conference on Environmental Compliance and Enforcement Proceedings, Monterey, CA, 1998) at 40, [unpublished].“The common inference that there is overlap and duplication of effort between federal and provincial enforcement agencies is not supported by the available data”; House of Commons Standing Committee on Environment and Sustainable Development, The Canadian Environmental Protection Act, 1999–Five-Year Review: Closing The Gaps: Report of the Standing Committee on Environment and Sustainable Development (Ottawa: House of Commons Standing Committee on Environment and Sustainable Development, 2007) at para 123, online: <http://cmte.parl.gc.ca/Content/HOC/committee/391/envi/reports/rp2614246/envirp05/05-rep-e.htm>. “There is insufficient evidence of overlap and duplication of environmental regulations and activities between the federal and provincial/territorial governments, thus making it doubtful that greater administrative efficiency and cost savings would be achieved under the agreement. … Rather than assuring that environmental practices and regulations of the two levels of government are complementary, the ultimate effect of the Accord and Sub-agreements will be to eliminate one level of regulations and practices”.
  157. Office of the Auditor General of BC, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: 2011, 2011/2012 Report 4), online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO> at 18: “We found that, with the exception of commitments that are tied to specific permits, agency responsibilities for monitoring compliance with environmental assessment certificates are not clear. Most interviewees reported that they had little if any communication with the EAO on these matters once a certificate had been issued.”
  158. Fisheries Act, RSC 1985, c F-14, ss 4.1, 4.2.
  159. House of Commons Standing Committee on Environment and Sustainable Development, The Canadian Environmental Protection Act, 1999–Five-Year Review: Closing the Gaps: Report of the Standing Committee on Environment and Sustainable Development (Ottawa: House of Commons Standing Committee on Environment and Sustainable Development, 2007) at para 116, online: <http://cmte.parl.gc.ca/Content/HOC/committee/391/envi/reports/rp2614246/envirp05/05-rep-e.htm>.
  160. Canadian Council of Ministers of the Environment, Inspections and Enforcement Sub-Agreement (Endorsed by CCME Council of Minister, April 30-May 1, 2001, Winnipeg) at ss 4.1.3 and 4.1.4, online: <http://www.ccme.ca/assets/pdf/insp_enfsubagr_e.pdf>.
  161. Greg Simmons et al., Digging up Trouble: The Legacy of Mining in BC (Vancouver: Sierra Legal Defence Fund, 1998) at 17: for example, the Kemess South mine is a situation where the provincial government is financially involved to an extent that its impartiality appears compromised; the presence of a second level of regulation provides the process at least some degree of balance.
  162. Office of the Auditor General of BC, An Audit of the Environmental Assessment Office’s Oversight of Certified Projects, (Victoria: 2011, 2011/2012 Report 4) at 19, online: <http://www.bcauditor.com/pubs/2011/report4/audit-bc-environmental-assessment-office-EAO>.
  163. Standing Committee on Environment and Sustainable Development, “Enforcing Canada’s Pollution Laws: The Public Interest Must Come First!”, Third Report, May 1998, at paras 101-102, online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1031521&Language=E&Mode=1&Parl=36&Ses=1.
  164. Standing Committee on Environment and Sustainable Development, “Enforcing Canada’s Pollution Laws: The Public Interest Must Come First!”, Third Report, May 1998, at paras 101-102, online: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1031521&Language=E&Mode=1&Parl=36&Ses=1.
  165. Wash Rev Code tit 78 § 56.060(2011).
  166. Mines Act, RSBC 1996 c 293, s 24(1).
  167. Surface Mining and Reclamation Act of 1975, 2 Cal PRC, § 3504.5(c)(2007).
  168. Carl Bruch & Elizabeth Mrema, Manual on Compliance with and Enforcement of Multilateral Environmental Agreements (Nairobi: United Nations Environmental Program, 2006) at 505, online at: <http://www.unep.org/delc/portals/119/UNEP_Manual.pdf>.
  169. Land and Environment Court Act (NSW, Australia), 1979 No 204.
  170. Land Court Act 2000 (QLD, Australia).
  171. Land Court Act 2000 (QLD, Australia), s32H. Also see the Land Court of Queensland fact sheet on cultural heritage available at http://www.landcourt.qld.gov.au/fact-sheets.asp.
  172. Carl Bruch & Elizabeth Mrema, Manual on Compliance with and Enforcement of Multilateral Environmental Agreements (Nairobi: United Nations Environmental Program, 2006) at 509, online at: <http://www.unep.org/delc/portals/119/UNEP_Manual.pdf>.
  173. Mines and Minerals Development Act, 2008 (No.7) Zambia, s 123(5)(b).
  174. Mines and Minerals Development Act, 2008 (No.7) Zambia, s 123(5)(e).
  175. Mines and Minerals Development Act, 2008 (No.7) Zambia, s 123(5)(d).
  176. Mines and Minerals Development Act, 2008 (No.7) Zambia, s 123(5)(f).
  177. Aboriginal Cultural Heritage Act, 2003 (Qld, Australia), ss 24, 25 and 26.
  178. Aboriginal Cultural Heritage Act, 2003 (Qld, Australia), s24. See also the Queensland government’s Duty of Care Guidelines available at < http://www.datsima.qld.gov.au/atsis/aboriginal-torres-strait-islander-peoples/indigenous-cultural-heritage/legislation-and-guidelines/duty-of-care-guidelines>
  179. Environmental Protection Act, SNL 2002, c E-14.2, s 77.
  180. Environmental Protection Act, SNL 2002, c E-14.2, s 99.
  181. Environmental Impact Evaluation Process Regulation (Decree n.° 45/2004 of 29 September, as amended by Decree n.º 42/2008, de 4 November) Mozambique, art 23, paragraph 4.
  182. Mines Act, RSBC 1996 c 293 s 15(4.1)(c).
  183. Mines Act, RSBC 1996 c 293 s 15(c).
  184. Mining Act, SNB 1985, c M-14.1, s 84(2).
  185. Mining Act, SNB 1985, c M-14.1, s 84(3).
  186. Bill C-16, Environmental Enforcement Act, 2nd Sess, 40th Parl, 2009 cl 2(g) (assented to 18 June 2009).
  187. See e.g., Migratory Birds Convention Act, 1994, SC 1994, c22, s 13(5).
  188. Environmental Protection and Enhancement Act, RSA 2000, c E-12, s 216.
  189. Environment Act, CCSM, c E125, s 33.
  190. Environmental Protection Act, RSO 1990, c E.19, s 187(2).
  191. Bill C-16, Environmental Enforcement Act, 2nd Sess, 40th Parl, 2009 cl 1 (assented to 18 June 2009).
  192. Antarctic Environmental Protection Act, SC 2003 c 28, s 53.1; Canada National Marine Conservation Areas Act, SC 2002 c 18, s 24(2.1); Canada National Parks Act, SC 2000 c 32, s 27(1); Canada Wildlife Act, RSC 1985 c W-9, s 13.12; Saguenay-St. Lawrence Marine Park Act, SC 1997 c 37, s 20.2; Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, SC 1992 c 52, s 22.09.
  193. See e.g., Canada National Marine Conservation Areas Act, SC 2002 c 18, s 27(1)(m); Canada National Parks Act, SC 2000 c 32, s 30(1)(m).
  194. Water Act, RSBC 1996, c 483, s 95(1)(d).
  195. Bill C-16, Environmental Enforcement Act, 2nd Sess, 40th Parl, 2009 cl 2(j) (assented to 18 June 2009); See e.g., Antarctic Environmental Protection Act, SC 2003 c 20 s 66(1)(m); Canada National Marine Conservation Areas Act, SC 2002 c 18, s 27(1)(r); Canada National Parks Act, SC 2000 c 32, s 30(1)(r).
  196. Domestic Market Regulation, (No 34 of 2009) Indonesia.
  197. Mines Act, s 37(3.1)(b).
  198. Environmental Assessment Act, SBC 2003 c 43 s 46; Water Act, RSBC 1996 c 483, s 98.
  199. Fisheries Act RSC 1985 c F-14, s 82; Canadian Environmental Protection Act, SC 1999, c 33 s 23(1),275(1).
  200. Quartz Mining Act, SY 2003, c 14, s 151(1).
  201. Republic of Ecuador, Constitution of 2008, art 396.
  202. EC, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, O, LJ 143/56, arts 10, 17.
  203. Environmental Violations Administrative Monetary Penalties Act, SC 2009, c 14, s 11(1).
  204. Arctic Waters Pollution Prevention Act, RSC 1985, c A-12, s 7(1).

Fair Mining Practices:

A New Mining Code for BC
  1. 1Negotiation of Agreements
  2. 2First Nations’ Resource Policies
  3. 3Indigenous Rights, Consultation and Consent
  4. 4The Surface Versus Subsurface Divide
  5. 5Mineral Prospecting and Exploration
  6. 6Environmental Assessment for Mining Activities
  7. 7Permits for Mine Development and Operation
  8. 8Compliance and Enforcement in the Mining Sector
  9. 9Mine Closure and Post Closure
  10. 10Securing the Cost of Mine Clean-up

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Problems and Solutions

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