Since February 2017, the British Columbia Ministry of Energy, Mines and Low Carbon Innovation (EMLI) has been issuing Administrative Monetary Penalties (AMP) to support the enforcement of the Mines Act, associated regulations, and permits issued under the Act.
Ascendion Law has studied thirty-nine Determinations of Administrative Penalties, representing a complete dataset of all decisions published by the EMLI. As of May 2023, the EMLI has issued twenty-six decisions. Some decisions involved multiple respondents; often, a dominant shareholder or another responsible individual, such as a mine manager, was a respondent with the permit holder, usually a B.C. corporation.
This dataset can help mining companies subject to administrative action by the Chief Inspector to predict the average fines and penalties they may receive. Our study can also help mining professionals understand the weight given to several factors in mitigating or aggravating penalties – such as due diligence, the compliance history of the companies or individuals involved, and the severity of the adverse effect of the violation.
The EMLI has issued thirty-nine AMPs, giving us a material body of decisions from which we can infer a statistically significant pattern of findings.
As the EMLI has issued Determinations of Administrative Penalties for several years, we now have a material body of decisions from which we can infer a statistically significant pattern of findings. Download our full report Understanding Administrative Monetary Penalties Issued to Mining Companies Operating in British Columbia (2023).
Some of our key findings include:
In the public interest, parties engaged in mining activities obtain the proper permits. Unsurprisingly, penalties were higher for unpermitted activities than violations of existing permits.
Similarly, as expected, we found that serious incidents involving worker injury or death, significant environmental damage, or other aggravating severe factors resulted in higher monetary penalties. Further, when the gravity and amount of a violation are labelled "Major", fines are 3 to 5 times higher.
The unexpected anomaly in the data was that a history of violations or repeated contraventions did not necessarily result in higher monetary penalties; in many cases, first-time offenders received higher penalties. This is an issue that calls for further review.
If you face an investigation by an EMLI staff or have been invited to provide submissions before a penalty is issued, our study suggests, especially if you have a minimal budget of time, money, or both, you can best maximize the value of your response budget by focusing on lowering the gravity of the misconduct and reducing the effects on third parties and the surrounding environment.
Like most administrative remedies, imposing an AMP requires fewer procedural safeguards. The Ministry does not bear a criminal burden of proof. They are not intended to attract criminal sanction, nor do they attract civil sanction. AMP findings undoubtedly may inform courts or litigants involved in these proceedings. They supplement and sometimes amplify quasi-criminal or regulatory enforcement.
Understanding your rights and responsibilities during a regulatory investigation is critical. We always recommend contacting counsel early in the inspection or investigation process.
Click here to download our full report Understanding Administrative Monetary Penalties Issued to Mining Companies Operating in British Columbia (2023).
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