Good news and bad news on the environmental enforcement front from a recent BC government announcement on improving tools for Mines Act enforcement.
Bad news first: in an extraordinary statement that may help to explain why convictions for environmental offences in BC have plummeted over the past 2 decades, Energy and Mines Minister, Bill Bennett, confirmed the government only lays charges when mining corporations refuse point-blank to follow a government order to comply with the law. Good news, however, is that the government is moving to create a new enforcement tool, which will allow significant penalties to be imposed without the need to go to court.
The Bad: When should the courts be involved?
A police officer comes upon a break-in in progress. Collaring the burglar, she says: “If you’ll just put those things back, sir, we can avoid any messy charges and pretend this never happened.”
According to BC’s Mines Minister, Bill Bennett, that’s more or less what happens when mining companies break BC’s mines laws. In a quote so remarkable that we just had to write an Environmental Law Alert about it, Bennett said:
“Offence prosecutions are only done where you’ve got a really bad actor,” [Bennett] said. “It’s rare and I don’t know the last time that we had to do this, certainly not any time that I’ve been minister.”
Bennett said the only time the province would take a company to court is if it refused to comply with orders given by the chief inspector.
Minister Bennett’s comments seem to have been a bit off-message, as they were made in the context of an important government announcement about tough fines and prison terms for offenders under the Mines Act. Minister Bennett had just boasted that a new $1-million dollar penalty for Mines Act violations was sufficient to ensure compliance – right before explaining that those penalties will only be used in the most exceptional circumstances.
Unfortunately, Minister Bennett doesn’t seem to be exaggerating. We are aware of a case in which the Ministry of Energy and Mines, on learning of a gravel pit that had been operating illegally without a Mines Act permit for a number of years, simply asked the company to apply for a permit – no consequences, just a request to comply with the law.
A penalty of up to $1-million dollars doesn’t seem so onerous if the offending party is guaranteed a chance to correct their behaviour before it is levied.
And, until now, the only alternative penalties in the Ministry’s tool box have been to cancel permits (also rare), issue stop-work orders and close mines.
Good news: Administrative Penalties
Given the government’s reluctance to go to court, we have an extra reason to celebrate the good news: the government is giving the Ministry the power to impose “administrative penalties” against Mines Act offenders. Administrative penalties are like tickets – in that they can be issued by the government without the need to go to court – but they can be for large amounts of money. We agree with Minister Bennett that these have the potential to give the Ministry the “nimbleness, the flexibility, to levy an administrative penalty quickly, without having to go to court.”
We’ve written about the need for this type of penalty before, including when the government was looking at creating similar powers under the Environmental Management Act:
Administrative penalties fill the gap between charges and tickets. They give officials within the Ministry … the authority to decide on and impose penalties in the course of their own “administration” of the Act – without needing to turn to courts. Unlike tickets, the penalties can be significant, but can also be tailored to the individual circumstance. Since they don’t need to involve complicated, expensive and scarce court resources, they are more likely to be used by the Ministry ...
However, as with big fines, the million dollar question is how will the government use the fines. Few details are available as yet – the new laws just allow rules to be developed for these fines.
BC’s Environmental Management Act (EMA) and Integrated Pest Management Act provided for administrative penalties when they were enacted in 2003, but rules for the penalties were not established until June 2014. The EMA regulations provide for penalties of up to $75,000, but the Environmental Violations Database as of today (14 March 2016) does not record any administrative penalties (the data in the Database is likely not up to date). So while it’s great that the Mines Act is getting administrative penalties as well, to date we have no sense of when rules for these penalties will be adopted and how widely these penalties will be used.
Law enforcement
We’ve been concerned about low levels of environmental enforcement in BC for some time. We have not had the opportunity to review enforcement levels by the Ministry of Energy and Mines.
Effective law enforcement requires that offenders feel that there is a real likelihood of their being caught, and near certainty of consequences if they are caught. Minister Bennett’s comments seem to confirm that at least the second of these two factors has been missing in BC’s Mines Act enforcement regime for some time.
The question is whether the creation of administrative penalties will result in the government taking meaningful action against Mines Act offenders. We are hopeful, but time will tell.
By Andrew Gage, Staff Counsel
Image by Gord McKenna, used under a Creative Commons Licence.