Courtesy of McCarthy Tetrault. View original article here.
The BC government has introduced proposed changes to the Mines Act (the Act) in Bill 6 (Mines Amendment Act, 2020), which passed its First Reading in the Legislative Assembly on June 22, 2020. The proposed changes were developed in response to lessons learned from the 2014 tailings spill at the Mount Polley mine. In addition, Bill 6 reflects recommendations made by the Office of the Auditor General for BC in its 2016 report, An Audit of Compliance and Enforcement in the Mining Sector, and the 25 recommendations in the Mining Jobs Task Force Report. The Mining Jobs Task Force was established in February 2018 to review exploration and mining in the province and to make recommendations for strengthening the industry.
A Quick Overview
The proposed legislative amendments to the Act would increase the accountability of mines as well as the efficiency of regulatory oversight. If passed, the legislation would (i) formalize the creation of a Mine Audits and Effectiveness Unit led by a Chief Auditor, (ii) create a new Chief Permitting Officer position for increased efficiency, (iii) add to the authority of the Chief Inspector and inspectors to strengthen investigation authorities, and (iv) increase accountability by extending the limitation period to lay information for an offence to five years (up from three years).
A Closer Look
Designation of Chief Auditor
The proposed amendments would require the Minister of Energy, Mines and Petroleum Resources (MEMPR) to designate a Chief Auditor, thereby formalizing the creation of the Mine Audits and Effectiveness Unit (Audit Unit). Led by the Chief Auditor, the Audit Unit will conduct audits to ensure that mining regulation in BC is effective and aligned with global best practices (specifically as it relates to the protection of the public, workers, and the environment). The Audit Unit will be separate and independent from other regulatory functions for mining. Each year, the Audit Unit will conduct a planning process to select priority audit topics, which will be published in its annual Audit Plan. The Chief Auditor will be required to provide a report on each audit to the Minister and to publish a copy of the report on a publicly accessible website.
Investigation on the Direction of the Chief Inspector
The proposed amendments specify that an inspector must carry out an investigation on the direction of the Chief Inspector, and authorizes an investigation of an incident that has or had the potential to cause serious personal injury, loss of life or property or environmental damage (additional new language underlined).
Creation of a Chief Permitting Officer
The proposed amendments would create the position of a Chief Permitting Officer, who would have the authority to delegate any powers to an inspector. The changes would transfer the Chief Inspector’s permitting responsibilities to the Chief Permitting Officer, in order to create a more efficient permitting process.
Added Authority of Chief Inspector and Inspectors
The proposed amendments would add authority for the Chief Inspector to (i) issue an order to remedy a failure to comply with reclamation requirements in the code or regulations or the conditions of a permit, (ii) enter a mine and take action in an emergency at a mine; and (iii) realize security to cover the costs of work and to order a person to replace the security by a specified time. The proposed amendments would also add express authority for an inspector to examine and require production of records or things. Inspectors would be authorized to bring persons or equipment for the purpose of an inspection (including Indigenous accompaniment on inspections), and amends the time limit for an inspector to complete an inspection report. In addition, there would be a requirement for an inspector to issue an order where they consider that a delay in remedying a hazard would be dangerous to the environment. Finally, the amendments add authority for an inspector to order the preparation of a professional report respecting actual or potential environmental damage resulting from mining activity.
The proposed amendments would require the designation of an acting manager to be in writing. In addition, it establishes a requirement for the owner, agent, manager or permittee to take all reasonable measures to ensure compliance with their permits. Further, the amendments clarify that the obligation to carry out reclamation applies whether or not security has been provided, security has been realized or the chief inspector has caused work to be done. A right to appeal a decision of the Chief Auditor would be established.
The proposed amendments extend the time limit for laying an information for an offence from three years after the date on which the Chief Inspector learned of the facts on which the information is based, to five years after such date. The proposed amendments would also affect the Environmental Management Act (EMA), extending the time limit for prosecuting an offence under the EMA to five years after the date that the facts on which the information is based arose (up from three years).
Towards Greater Regulatory Efficiency and Industry Accountability
In 2016, MEMPR, the Ministry of Environment, and Environmental Assessment Office released the BC Mining Compliance and Enforcement Strategic Plan (the Strategic Plan), which states the government’s vision for mining oversight in BC as follows: “Achieving enhanced protection of the environment, human health and public safety through an integrated risk-based approach to mining oversight.” The Strategic Plan sets out five strategic objectives based on principles of comprehensive compliance and enforcement (C&E), transparency, and engagement with First Nations, communities and industry.
The Strategic Plan was informed, in part, by the Auditor General’s 2016 report – a central theme in the report was that the Ministry of Energy and Mines (as it was then called) failed to hold mine owners accountable due to a combination of insufficient regulatory enforcement tools for inspectors and the Ministry’s culture. The proposed amendments in Bill 6 represent the Province’s attempts to address the issues outlined in the report.
For mines in BC, the introduction of a broader range of enforcement tools and inspection authority may lead to greater scrutiny by MEMPR of mining operations, more frequent inspections and more stringent enforcement. Throughout the life of a mine, proponents work together with regulators and stakeholders to address issues and mitigate impacts arising from mining development and operations. The separation of statutory roles for permitting and enforcement matters should help to facilitate a more streamlined permitting process, and enable the Chief Inspector to focus on enforcement as well as health and safety responsibilities.