Introduction
A good law, however, is not enough. It must be enforced – ruthlessly if need be.
– Tom McMillan: former federal Minister of Environment (1998)1
Enforcement is broadly defined as government or private action taken to determine or respond to non-compliance with legal obligations.2 Rigorous enforcement is widely recognized as necessary to ensure that proponents comply with legal requirements. Not only is strong enforcement desirable from the public’s point of view, it is also good for business. Without adequate enforcement, proponents who abide by the law risk facing an economic disadvantage compared to competitors who do not. As such, enforcement plays a significant role in creating a level economic playing field.3 In addition, inspectors can facilitate the transfer of experience and learning between different companies that have encountered similar environmental compliance challenges.4 Surveys confirm that business leaders consider the strong enforcement of laws to be important to them.5 Despite the importance of doing so, however, there is a lack of enforcement of environmental obligations in BC. The Environmental Assessment Office, for example, has been criticized for “not adequately fulfilling its compliance and enforcement responsibilities for certified projects”.6
The following sections review the existing enforcement regime for mining activities in BC and suggest ways to improve enforcement at mine sites and protection of local communities and ecosystems from mining activities.
Overview of BC Law
In BC, proponents must comply with commitments and obligations under:7
- their Environmental Assessment Certificate;
- provincial mining legislation and mine permit conditions; and
- provincial and federal environmental legislation and licences issued thereunder.
Proponents must also comply with legal obligations and licences issued under other legislation (e.g. forestry, transportation, right-of-ways, etc.).8 Generally, the government department responsible for issuing the licences or administering the legislation is also responsible for enforcing the law.9 The following sections review the enforcement provisions enacted under these legal instruments.
Environmental Assessment Certificate
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.10 If construction or operation activities are not carried out in accordance with a proponent’s EA Certificate, the regulatory authority may:11
- order that the activities cease until they are in compliance;12
- order that measures be adopted to mitigate the non-compliance;13
- suspend the proponent’s rights under the EA Certificate;14
- cancel the EA Certificate;15 or
- amend or attach new conditions to the EA Certificate.16
Despite these potentially strong sanctions for non-compliance, the EAO has been criticized for not implementing a proactive enforcement strategy.17 According to the Auditor General, the “EAO has not deemed penalties, certificate suspension or cancellation necessary”.18 The failure of the EAO to enforce EA commitments and conditions has been widely acknowledged and criticized.19 In a recent report, the Auditor-General criticized the EAO for:20
- Being reactive rather than proactive;
- Lacking a compliance and enforcement program to monitor projects and ensure compliance;
- Failing to regularly carry out formal site inspections; and
- Failing to use its power to issue penalties or suspend or cancel EA Certificates.
The EAO responded to the Auditor-General’s report, making various commitments to address the issues that were raised. These include commitments to develop an enhanced monitoring, compliance and enforcement program and increase public disclosure of project monitoring and compliance.21 The extent to which these commitments are implemented will be seen over the upcoming years.
[Note: EAs are also regulated at the federal level under the recently amended Canadian Environmental Assessment Act, 2012 (CEAA). To date, it is unclear how these amendments will affect enforcement at the federal level.]