Since the 2014 Mount Polley tailings dam breach, the British
Columbia government has made numerous changes to its mining
regulatory regime. The most recent amendments, some of which came
into force late last week, significantly increased the penalties
that may be imposed for violation of the Mines Act (Act).
The changes heighten the potential exposure of mining companies and
their directors, officers and agents in cases of unpermitted
environmental impacts, as well as non-compliance with the
administrative aspects of the legislation and permits issued under
Mine owners and operators throughout British Columbia have faced
increased scrutiny over the past two years, a trend which is likely
to continue. The government's most recent actions have stemmed
largely from the reports and recommendations of the Independent
Expert Engineering Investigation and Review Panel and the Chief
Inspector of Mines, delivered in January and December 2015
respectively. The government has stated that it is committed to
ensuring all of the recommendations are implemented over the next
12 to 18 months.
Some of the changes that have already been implemented have
included increased tailings dam foundation inspections; more
ministry staff; and added requirements for the environmental
assessment of newly proposed mines.
Most recently, the Act has been amended in two primary
ways. First, the maximum fine for offences under the Act
has been increased from C$100,000 to C$1-million and potential
prison terms have been lengthened from one to three years. These
changes are effective immediately. Note that if a corporation
commits an offence, a director or officer of the corporation who
authorized, permitted or acquiesced in the offence can also be
fined, imprisoned, or both.
Second, the amending legislation authorizes administrative
penalties for non-compliance with the Act. The Chief
Inspector of Mines will be authorized to issue an administrative
penalty if he or she finds that a person has contravened the
Act, regulations, code or an order under the
The administrative penalties regime is notable for a few
reasons. The Chief Inspector of Mines only needs to determine the
contravention on a balance of probabilities after giving the person
an opportunity to be heard, unlike an offence that must be proven
in court beyond a reasonable doubt. In addition, most
administrative penalty regimes provide that due diligence is not a
defence, although it is relevant to the quantum of the penalty.
Furthermore, the scope of potential liability is also broader for
administrative penalties than for offences: along with director and
officer liability, an agent (a party having control of a mine on
behalf of the owner) who authorized, permitted or acquiesced in the
contravention may also be liable. Finally, if an employee,
contractor or agent of a corporation commits a contravention, the
corporation is also liable for a penalty.
Further details regarding the application and quantum of
administrative penalties will be set out in future regulations,
which will likely also include clarification of whether due
diligence will be a defence to an allegation of a
These latest amendments are consistent with the increased
emphasis on higher fines and broader enforcement tools that have
been implemented by both the provincial and federal governments
over the past few years. For example, changes to federal laws in
2009 and 2012 established minimum fines and significantly higher
maximum fines for violations of key environmental statutes.
Administrative penalties, in place and widely used in British
Columbia under forestry laws since the late 1990s, have been
implemented by the province over the past several years under the
Environmental Management Act and the Oil and Gas
Activities Act. What remains to be seen is to what extent the
regulators will utilize the new tools they have been given to
address issues over non-compliance these statutes and now, the
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