Lack of Independent Enforcement Agency
Issue
To address jurisdictional issues surrounding the enforcement of environmental laws, the federal and provincial governments have established a harmonization process for inspection and enforcement of environmental protection laws.154 This initiative seeks to reassign responsibility for administering and enforcing Canada’s environmental laws to one or the other level of government.155 This initiative is based on the rationale that it will achieve cost savings and improved environmental performance. However, it has been widely criticized as being based on a “myth unsupported by any data” that the desired results would materialize.156 Most recently, the Auditor-General critiqued this approach on the grounds that it would fail to achieve adequate enforcement of legal commitments and obligations.157
Under Canada’s amended Fisheries Act, the federal and provincial government can enter into agreements to download responsibility for administration and enforcement to the Province (especially where equivalent Provincial laws already exist).158 A key challenge raised by this devolution of responsibility is the increased burden placed on already resource-poor provincial regulators. In addition, there are concerns that once one level of government devolves its responsibility to another level, it progressively abandons the field, making it very difficult to return to its previous role.159 The harmonization agreement also provides that the enforcement and inspection activities are to be carried out by the level of government that is “best situated”.160 Without further clarification, this raises potential confusion that may lead to neither level of government assuming the responsibility, especially where budget cuts reduce enforcement capacity.
Finally, environmental protection enforced by two levels of government is especially important to prevent against bias where one level is benefiting financially from the project.161 Mining activities are provincially regulated and generate provincial revenue. As such, there is an apparent conflict of interest for the provincial government to be solely responsible for enforcing environmental laws while at the same time trying to encourage investment.
One initiative that may actually serve to improve compliance and enforcement is the provincial inter-agency compliance and enforcement committee, which BC’s EAO recently joined. This committee was formed to support the natural resource and environment agencies in co-ordinating compliance and enforcement activities. However, due to recent ministry reorganizations, little work has been completed to date.162 The concept of coordinating enforcement efforts by way of this type of committee is, however, a step in the right direction towards more collaborative enforcement efforts between provincial ministries.
Recommended Solutions
Appoint independent monitoring and enforcement agency for mining activities
[Tags: Enforcement; Conflict of Interest; Independent]
The number of different laws that apply to mines in BC highlights the need for coordinated enforcement efforts. However, mere delegation of enforcement responsibilities from one government department to another has proven to be insufficient. The need for a separate, independent agency to enforce environmental laws was recognized by Canada’s Standing Committee on Environment and Sustainable Development.163 This approach has been adopted in Ontario, where their historically high conviction rate for environmental offences was directly attributable to the creation of the Investigation and Enforcement Branch: a specialized enforcement branch that was separate from the Ministry of Environment’s abatement section.164 A similar approach has been adopted in Washington State where the department of ecology must appoint a metals mining coordinator to assist agencies coordinate their inspection and monitoring responsibilities.165 As such, rather than merely shifting responsibilities, a specific position is created to aid in the coordination of enforcement responsibilities.
Prohibit persons with conflicts of interest from carrying out mine inspections
[Tags: Enforcement; Conflict of Interest]
BC’s Mines Act imposes the duty to ensure compliance with the law on the owner, agent or manager of the mine.166 To promote greater transparency, legal provisions should mandate that individuals with an interest in a particular mine not be responsible with enforcement at that mine. This is recognized in California, where a surface mine inspection may not be performed by any person who holds a financial interest in or has been employed by the surface mining operation in any capacity (including as a consultant or as a contractor) during the year preceding the inspection.167
Institute specialized court to rule on environmental matters
[Tags: Enforcement; Expertise]
As recognized by the United Nations Environment Programme, “courts are the most prevalent formal institutional setting for sanctioning the violation of environmental laws and regulations and ensuring compliance”.168 Given the scientific and technical expertise necessary to understand and effectively determine matters related to environmental offences, several jurisdictions have established specialized courts to adjudicate environmental law issues.
New South Wales (Australia) has a specialised Land and Environment Court, which has equal status to the Supreme Court and is responsible for interpreting and enforcing the State’s environmental law.169 The Court has jurisdiction to hear and dispose of proceedings arising under the mining legislation. Similarly, in Queensland (Australia) a specialist Land Court is responsible for hearing disputes under mining and environmental legislation,170 but also has the power to issue injunctions to restrain activities that may result, for example, in unlawful harm to Aboriginal cultural heritage or the prohibited excavation or relocation of cultural heritage.171 Sudan’s Khartoum State offers another example of a specialized court set up to deal with the state’s environmental and conservation violations.172