On February 25, 2016, as part of British Columbia's response
to the Mount Polley dam failure, British Columbia's Minister of
Energy and Mines introduced amendments to the Mines Act,
RSBC 1996, c 293, aimed at strengthening the provincial
government's regulatory oversight of the mining industry. Bill
8, The Mines Amendment Act ("Bill 8") proposes
to increase penalties for prosecutions, allow for administrative
monetary penalties and increase director and officer liability
under the Mines Act.
Bill 8 is the first legislative change following recommendations
from an independent engineering review panel and the Chief
Inspector of Mines on the Mount Polley dam failure. Both the Review
Panel and the Chief Inspector concluded that the primary cause of
the Mount Polley incident was failing to account for the strength
and locations of a layer of clay underneath the dam in the tailing
storage facility's original design and subsequent dam raises.
Both investigations found that general management and regulatory
practices also played a part in the tailing pond failure and
recommended changes to prevent future dam failures. For instance,
the Chief Inspector recommended that the Ministry of Energy and
Mines improve its investigative and enforcement capacity and
consider a full range of regulatory tools, such as administrative
Administrative Monetary Penalties
If passed, Bill 8 would allow the Chief Inspector of Mines to
impose administrative monetary penalties for contraventions of the
Act, orders made under the Act, or terms or conditions imposed
under the Act. Corporations could be deemed to contravene the Act
and face administrative monetary penalties when a director,
officer, agent, employee, or contractor contravenes or fails to
comply with the Act.
Bill 8 does not specify the amount of the administrative
penalties that will be imposed, instead referring to
"prescribed limits" to be set by regulation. This is
consistent with the approach taken in other provincial natural
resource legislation, including the Forest and Range Practices
Act and the Oil and Gas Activities Act.
Administrative monetary penalties provide a new tool in the
provincial government's compliance and enforcement tool kit,
which currently consists of: (1) pursuing prosecutions, (2)
cancelling a mine's permit, (3) issuing a stop-work order, (4)
issuing an order for immediate remedial action, (5) issuing an
order for a person to comply with the requirements of the Act,
regulations, code, or the mine's permit, or (6) closing the
Increased Penalties for Prosecutions
The proposed amendments would also significantly increase the
penalties available in prosecutions under the Act. The Act
currently states that offences are punishable by a fine,
imprisonment, or both. Under Bill 8, the maximum fine will be
raised to $1,000,000 (from $100,000) and the maximum term of
imprisonment will be increased to three years (from one year).
More to Come?
Further regulatory changes will likely be announced in the
coming months. British Columbia is expected to require that all
mines with tailing storage facilities operating in British Columbia
establish "Independent Dam Review Boards/ to provide
third-party advice at all stages of the TSF lifecycle, from design
to closure. A review of the Health, Safety and Reclamation Code for
Mines in British Columbia is being conducted to determine how best
to implement the remaining recommendations from the Review Panel
and the Chief Inspector. This is expected to finish in early 2016
and the government has indicated that revisions could be legally in
force by mid-2016. New guidelines for professional engineering
practices for dam site characterization assessments are expected to
be released by the Association of Professional Engineers and
Geoscientists of British Columbia by spring 2016. Further, the
Mining Association of Canada is working to implement changes to its
tailings management requirements and guidance documents.
A joint investigation led by the British Columbia Conservation
Officer Service, and assisted by Environment Canada, Department of
Fisheries and Oceans Canada and the Royal Canadian Mounted Police
into the Mount Polley Dam failure is ongoing.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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