Written by Sharon Singh, Sander Grieve and Claire Lingley
On June 22, 2020, British Columbia introduced amendments to the Mines Act. The proposed amendments formalize the separation of the Ministry of Energy, Mines and Petroleum Resources' (EMPR) permitting and compliance functions, establish an independent oversight unit, and further enhance compliance and enforcement.
The proposed amendments adopt a number of the recommendations of the Mining Jobs Task Force and the May 2016 Office of the Auditor General for B.C. (OAG) report on the EMPR's and the Ministry of Environment's (MOE) compliance and enforcement.
Proposed Amendments to the Regulations
Structural Separation of Regulatory Functions
Currently, the Chief Inspector of Mines is responsible for both permitting decisions and for health, safety, and enforcement. The proposed amendments will create a new position of Chief Permitting Officer (CPO). The CPO will be responsible for permitting decisions. The delivery of permitting responsibilities will be coordinated and aligned under one area of the ministry. The Chief Inspector will remain responsible for health, safety, and enforcement.
The proposed amendments will affirm and clarify the division of responsibilities and resources between permitting functions and regulatory compliance and accountability. This amendment responds to the concerns regarding regulatory capture raised in the May 2016 OAG report on the audit of the EMPR's and the MOE's compliance and enforcement activities.
Independent Oversight Unit
The proposed amendments also formalize the creation of the Mine Audits and Effectiveness Unit, led by a newly created statutory position of Chief Auditor. The Audit Unit is an independent entity within the Ministry, separate from other regulatory functions for mining, that is established to ensure mining regulation in B.C. is effective and aligned with global best practices. It is tasked with undertaking annual audits and publishing individual audit reports outlining conclusions, reasons, and recommendations. Annual audit plans are developed and published that identify upcoming priorities for the year.
The proposed amendments explicitly grant auditors the authority to enter mines, gather information, and bring on to the site any person, including Indigenous community representatives, and equipment necessary for the purpose of the audit. If during such audit visits the Chief Auditor identifies a hazard of which any delay in remedying may pose an imminent threat to persons, property, or the environment, the Chief Auditor may issue an order for immediate remedial action, or to suspend or close the mine until such action is taken. The EMPR is currently developing a policy to clarify and provide guidance on how best to implement and navigate this accompaniment provision.
The Audit Unit will be granted the necessary powers to evaluate mining operations to better protect the health and safety of workers, the environment, and the public. As an independent oversight body, the Audit Unit will carry out independent and objective assessments regarding the current mining regulatory framework. This is necessary to ensure that the Ministry and the public have confidence that the Audit Unit's conclusions and recommendations are reliable and defensible.
Current audits underway include the audit of code requirements for tailing storage facilities, as well as the audit of mobile equipment operator cab safety.
Further Enhancements to Compliance and Enforcement
The proposed amendments will allow the Chief Inspector to enter any mine where there is an emergency and take the necessary action to prevent danger to persons, property or the environment. This includes the power to realize security to cover the costs of work necessary on a closed or abandoned mine in order to avoid danger to persons and property, or remedy pollution. The Chief Inspector's ability to order an investigation of and report on an incident is no longer limited to when an accident has caused serious personal injury, loss of life or property or environmental damage. It will also include when there is the potential to cause such serious personal injury, loss of life or property, or environmental damage. It is only the Chief Inspector who can initiate this investigation. This amendment aligns with similar provisions found in environmental statues across Canada.
The proposed amendments will establish that it is an offence to obstruct, impede or interfere with an official, and to provide false or misleading information or records to an official, when the official is carrying out a duty or exercising a power. The limitation period for commencing an offence prosecution under both the Mines Act and the Environmental Management Act will be increased from three years to five years.
Mining companies should prepare for the proposed amendments, including preparing for potential audits and reviewing policies and procedures to determine whether updates are required. Whilst many of the amendments are not controversial, companies should pay particular attention to understanding the impacts of changes to limitation periods and authority of inspectors to bring additional individuals on site (versus the site allowing visitors). The government has stated that the separation of the permitting and enforcement functions will improve the permitting process and, hopefully, lead to more efficient and timely decision-making