Compliance and Enforcement in the Mining Sector

Provincial Mining Laws and Permit Conditions

In BC, compliance provisions are provided under both the provincial Mineral Tenure Act and Mines Act.

Under the Mineral Tenure Act, if a proponent contravenes the Mineral Tenure ActCriminal CodeHeritage Conservation ActMines Act or associated regulations, BC’s Chief Gold Commissioner is empowered to suspend the proponent’s Free Miner Certificate (FMC).22 Without an FMC, the proponent may no longer acquire or maintain a mineral title, nor access the mineral land for exploration or development. Before a FMC can be suspended, the proponent must be given notice and an opportunity for a hearing.23 The proponent may also appeal the FMC cancellation.24

If a proponent does not comply with legal requirements, or contravenes the protection of a protected heritage property, the Chief Gold Commissioner may order the proponent to come into compliance within a specified period of time.25 If the non-compliance is not corrected, the Chief Gold Commissioner may suspend any exploration or mineral development or production until the proponent complies.26 The mineral claim may also be cancelled if the proponent deliberately fails to comply with orders or other legal requirements.27 The proponent may appeal a decision to cancel a claim.28

Under the Mines Act, proponents must take all reasonable measures to ensure compliance with legal requirements.29 If a proponent fails to comply with conditions of the mine permit, the Chief Inspector is granted broad powers to do any of the following:30

  • order the proponent to stop the mining operation;
  • apply all or part of the security toward payment of the cost of the work required to be performed or completed;
  • close the mine; or
  • cancel the permit.

Legal provisions under BC’s Mines Act empower inspectors to inspect a mine at any time.31 Where an inspector finds that a mine is not being operated in accordance with its legal requirements,32 he or she may make an order for remedial action.33 In addition, if the inspector believes on reasonable grounds that the proponent is contravening a remedial order or any other provision under the Mines Act or associated regulations, the inspector may order the proponent to take immediate remedial action, or suspend regular work or close the whole or part of the mine until the remedial action is taken.34 Failure to comply with the Mines Act, regulations, the Health, Safety and Reclamation Code (HSR Code), or orders made under these instruments, constitutes an offence, for which, upon conviction, a proponent may be sentenced to:35

  • a maximum fine of $100,000;
  • imprisonment for up to one year; or
  • a fine and imprisonment.

If the offence is committed by a corporation, a director or officer who authorized, permitted or acquiesced in the offence may also be fined or imprisoned.36 For continuing offences, the proponent may be fined $550 to $5,000 for each day that the offence continues after receipt of notice from the inspector.37 Finally, if the proponent does not comply with an order, the inspector may also apply to the Supreme Court for a court order directing the person to comply.38 Unfortunately, court orders are often insufficiently enforced with long delays before corrective action is taken.39

Provincial Environmental Laws

The primary pieces of provincial environmental legislation that apply to mines in BC are the Environmental Management Act (EMA) and the Water Act. Although these are both administered by the BC Minister of Environment (MOE), powers of inspection are also provided under BC’s Mines Act.40

Environmental Management Act (EMA)

The Conservation Officer Service (COS) is the enforcement arm of the MOE and is empowered to conduct inspections and investigations.41 [Note that inspections serve to verify compliance with regulatory requirements, whereas investigations serve to gather evidence to support court proceedings in cases of suspected non‐compliance.42] These powers are relatively broad and include the authority to:43

  • inspect, analyze, measure, sample or test land, and any article, substance or waste located on or in the land, and premises;
  • examine and make copies of records;
  • require equipment to be operated, used and set in motion for inspection; and
  • take photographs, videos and audio recordings.

Due to the fact that an investigation could lead to criminal sanctions, investigators must be careful to abide by the Charter of Rights of Freedoms in conducting their investigation. If not, any evidence obtained could be rendered inadmissible, which could result in the charges being stayed.

Under the EMA, the COS’s enforcement powers at mines are relatively restricted.44 However, it is empowered to issue a remediation order when asked to do so by the Chief Inspector or where the land or water use is “formally changed” from that approved under the mine permit.45 However, this provision appears to be used very infrequently. In the rare occasion it is used, fines are generally small (typically $575) or non-existent.46

Water Act

Various offences that may occur at mine sites are also listed under the Water Act, including:

  • unauthorized deposits of tailings into streams;47
  • unauthorized water diversions;48
  • unauthorized water uses;49
  • unauthorized changes in and about a stream;50 and
  • breaches of licence conditions.51

The maximum sentences for proponents who commit these offences are:52

  • Non-continuing offences: maximum fine of $200,000, maximum imprisonment of 6 months, or both; or
  • Continuing offences: maximum fine of $200,000 for each day the offence continues, maximum imprisonment of 6 months, or both.

The Water Act also lists some high-penalty offences, for which the penalty includes increased fines (maximum of $1 million) and lengthier imprisonment terms (maximum one year).53 These high-penalty provisions may apply, for example, to proponents who contravene orders under the Fish Protection Act.54 The Water Act also empowers the court to impose creative sentencing, which may include directions to remedy the harm caused by the offence or publicly publish facts regarding the offence.55 If a corporation commits the offence, an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence is also liable.56 Finally, legal provisions explicitly state that if a licence is abandoned, suspended, terminated or cancelled, the proponent is not relieved of liability for damage resulting from the works constructed, operated or maintained by the proponent, or from a defect, insufficiency or failure of the works.57

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