Compliance and Enforcement in the Mining Sector

Voluntary Compliance


In the past, there were significant success stories from strong enforcement of environmental and natural resource laws in BC.99 Unfortunately, this is no longer the case. There has been an increasing trend towards replacing actual intervention with voluntary compliance and technical advice.100 The failings of this approach have been widely recognized. For example, the Organisation for Economic Co-operation and Development (OECD) has commented that Canada’s “wide use of voluntary approaches has not always been effective or efficient”.101 Similarly, in a review of Environment Canada’s enforcement initiatives, the former Head of Inspections recognized the failure of voluntary compliance programs and peer-inspection programs in achieving satisfactory levels of compliance.102 This lack of enforcement runs counter to the general public’s support for strong enforcement of environmental laws.103 If the current government is not committed to enforcing environmental laws, then First Nations, interest groups, and members of the public should be afforded this opportunity.

Recommended Solutions

Disclose monitoring reports, compliance results and offences to public

[Tags: Enforcement; Disclosure; Public]

In BC, the Chief Inspector must submit an annual report “showing results during the previous year in achieving the purposes of this Act”.104 This vague language is not clarified by any explicit requirements for enforcement reporting. As a result, the Chief Inspector’s annual reports offer little more than general statistics on the number of orders issued, with limited details on the nature or subject of these orders. The details of the orders can only be accessed directly from the regional mines offices, which makes the information largely inaccessible and reduces the opportunity for public involvement.105 The lack of data in the annual reports is exacerbated by the lack of a published non-compliance reporting system.106 The Auditor-General also recently recognized that although various government departments do conduct compliance and enforcement activities related to environmental assessment projects, they do not regularly publish detailed information on their findings.107

Public disclosure of the identities of violators has been recognized as a powerful deterrent to non-compliance.108 This was one element of the successful enforcement of pulp and paper legislation in BC.109 The Canadian Environmental Protection Act, 1999 established an Environmental Registry that must contain copies of orders made under the act.110 In addition, under Canada’s new Environmental Enforcement Act, a corporate offender must, upon conviction, notify shareholders and their identity will be posted for a minimum of five years on a publicly accessible registry.111

Allow public to request investigation of alleged violations of environmental laws

[Tags: Enforcement; Public; Investigation]

Some jurisdictions have enacted legal provisions that grant individuals the right to request or initiate public investigation of alleged offences. Provisions for the involvement of individuals in enforcement are already provided under the Canada Environmental Protection Act, which allows citizens to request the government to investigate an alleged offence112 and to be granted standing to bring an “Environmental Protection Action” if the government fails to act.113 Persons affected by the conduct may also seek an injunction.114 Similar legal provisions have been enacted in the Northwest Territories,115 Alberta,116 Nova Scotia,117 Yukon,118 and Ontario.119

Most BC Environmental Assessment Certificates require proponents to submit periodic compliance reports to the Environmental Assessment Office.120 These reports, when submitted, may be posted on the EAO’s website (e-PIC) where they are publicly available. The reports are filed under the “Completed/Certified” heading for individual projects on e-PIC. These monitoring reports provide the public with some (not impartial) information about whether or not the conditions of an Environmental Assessment Certificate are being complied with. This is consistent with the Auditor General’s recommendation that the EAO makes appropriate monitoring, compliance and outcome information available to the public to ensure accountability.121

Grant enforcement powers to the public and local communities

[Tags: Enforcement; Public]

The “implementation gap” identified for enforcement at mines in BC highlights the need for more enforcement personnel. Local community group members, if adequately trained, can help provide some of this enforcement taskforce. The role of local communities in enforcement is recognized the Philippines, where legal provisions mandate that peoples’ organizations and non-governmental organizations shall be allowed and encouraged to participate in ensuring that mining contractors or permittees shall observe all the requirements of environmental protection.122 Even in Canada, the Compliance and Enforcement Policy for the former Fisheries Act stated that “the public will be encouraged to report suspected violations of the habitat protection and pollution prevention provisions of the Fisheries Act”.123

Grant rights of standing to members of the public and non-governmental organizations

[Tags: Enforcement; Public; Standing]

Numerous jurisdictions have enacted legal provisions that grant standing to members of the public to sue for environmental harm caused by mining activities. For example:

  • Under the Canadian Environmental Protection Act, 1999, the public is granted the right to sue for harm to natural resources.124
  • In the Yukon, any person adversely affected by the issuance of a licence or use of water or deposit of waste authorized by the regulations is entitled to be compensated by the licensee and may sue to recover such compensation in a court of competent jurisdiction.125
  • In the Northwest Territories, members of the public are granted standing to prosecute environmental offences and to initiate action for injunction or damages to protect the environment and the public trust (which is defined as the interest of public in environmental quality for future generations).126
  • In Ontario, any person who has suffered or may suffer a direct economic loss or direct personal injury as a result of a public nuisance causing environmental harm may bring an action. The consent of the Attorney-General to bring the action is not necessary, nor is it relevant whether other persons have been similarly injured.127
  • In Karthoum (Sudan) any person has the right to lodge a civil claim in a case where there has been some environmental damage without having to prove his or her connection with such damage.128
  • Under Bolivia’s Constitution, any person, individually or on behalf of a community, is empowered to bring legal actions to defend the environment.129
  • Under Ecuador’s Constitution, individuals and community groups are granted the right to file legal proceedings and resort to judicial and administrative bodies to obtain from them effective custody in environmental matters. This includes the possibility of requesting precautionary measures that would make it possible to end the threat or the environmental damage that is the object of the litigation.130

Under European Union law non-governmental organisations must also be granted standing.131 In Sweden, the Environmental Code entitles environmental organisations of more than three years standing with 2,000 or more members to appeal judgments and decisions concerning permits. Persons not owning property within a mining area may also be entitled to appeal if their immediate surroundings are affected in certain ways.132

Involve First Nations in proponent compliance and enforcement

[Tags: Enforcement; First Nations Consultation]

It has been suggested that BC’s EAO “should annually review compliance with affected First Nations”.133 Not only should First Nations be informed of proponent compliance, there are also opportunities for their involvement in enforcement. A potential model for such community enforcement is BC’s own Coastal Guardian Watchmen: a group of First Nations resource practitioners who work in forestry, parks and fisheries to monitor, protect and restore important cultural and ecological values.134 Although the Coastal Guardian Watchmen do not have legal standing to ensure compliance, their monitoring and reporting activities help to identify incidents of non-compliance and bring them to the government’s attention.

The ability of First Nations to enforce environmental laws and regulations has also been codified in agreements. For example, in the Diavik and Snap Lake agreements, these rights include the right to take legal action if the proponents do not comply with applicable environmental legislation and regulations.135 Similarly, the Environmental Agreement between the government of the Northwest Territories, Indigenous peoples and proponents, provides Indigenous peoples the right to pursue enforcement of their terms.136 In Nunavut, legal provisions mandate that the Nunavut Water Board shall grant full standing to various Indigenous groups to make representations respecting their interests in relation to the areas that those groups have traditionally used and continue to use. The Water Board must take any such representations into account in its decision-making.137 In Brazil, the Constitution grants Indigenous peoples standing rights to sue to defend their rights and interests.138

Grant enforcement powers to local government and enforcement officials

[Tags: Enforcement; Local Government]

Local officials, if adequately trained, can help fill the need for improved enforcement. This is recognized in Washington State where the regulatory authority is empowered to delegate some or all of its enforcement authority by contractual agreement to a county, city, or town that employs personnel who are, in the opinion of the department, qualified to enforce plans approved by the department.139

Similarly, local police can also fill to provide the necessary enforcement personnel. In Papua New Guinea, legal provisions mandate that all members of the police force shall, when required by the regulatory authority, aid in carrying out the regulatory authority’s powers, functions and duties under the mining legislation, including enforcement responsibilities.140 Similarly, in the Philippines, the regulatory authority may deputize any member or unit of the Philippine National police to police mining activities.141

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