A guide to MINING LITIGATION in bc

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What kind of regulation is there for mining in BC?

Mining in British Columbia is heavily regulated. There is a myriad of statutes regulating the access, possession, and use of physical land and the minerals contained on such land and regulating activities we call mining. Statutes governing the rights and privileges of exploiting minerals in British Columbia include the Mineral Tenure Act. Statutes governing the rights and privileges of mining activity is in the Mines Act. Each of these statutes has numerous and voluminous regulations issued by government addressing the details of how these rights and privileges are regulated. Government departments each issue their own rules and policies guiding how mining and mining activity is administered.

Additionally, miners and people working in and with mines must comply with mining-specific regulation governing such areas as environmental protection, worksite safety, employment, taxation, First Nations, and many others.

See our summary of the latest Ministry of Mines Enforcement Report 2018

Do I need a permit to operate a mine?

You need a permit to operate a mine. The Mines Act allows the government to create several classes of permits; an exploration permit or a major mine permit. Ministry of Energy and Mines strictly apply these permits and will enforce violations of those permits with fines, restrictions, or orders to suspend or halt mining.

Who enforces the codes/orders?

In British Columbia, you can expect to have many different government entities enforcing mining law. Ministry of Mines inspectors will enforce compliance with Mines Act requirements, notably adherence to permit terms. Ministry of Environment officers, including Conservation Officers who are peace officers, will enforce compliance with environmental regulation. In Canada, officers from the federal Fisheries department and Environment Canada often inspect mining operations and investigate breaches of federal laws.

What is the procedure if there is an incident (e.g. a spill)?

Several different statutes require a person in authority to first notify a number of emergency response telephone numbers. These numbers can change from time to time, and there are emergency response numbers for provincial and federal authorities.

Then, provincial and federal legislation requires mine operators to provide a short written report describing the spill and its characteristics (date, time, precise location, the estimated volume of total discharge, the estimated volume of deleterious substances discharged, etc.). This report is usually required as soon as it can be produced and no later than 30 days after the spill. The reports do not require absolute accuracy - the focus is on timeliness.

A more detailed report is almost always demanded and required from mining inspectors. These reports will usually require more detailed and accurate measurements of discharge and the effects of such discharge on the environment. You can expect mining and environmental inspectors to also require detailed descriptions of mitigation efforts, prevention activities, and efforts made to ensure that a spill does not reoccur.

Because their reports may be used in evidence in future criminal proceedings, it is advisable to review them with your lawyer before submitting them.

What should I expect during an inspection?

You can expect a team of inspectors from different provincial and federal agencies to arrive on site. They will take a physical tour of the site, take photos, take videos, make measurements, review records, and speak with witnesses. They have the authority to require all of it. Refusing to comply or assist in these inspections can constitute a criminal offence or an offence under the relevant statute.

If there was a spill, expect inspectors to take samples from the environment - water samples from local streams, ponds, and waste discharge points. They will also take soil samples and may take samples of local plants and small animals to test.

You can expect inspectors to take statements that may feel like a criminal investigation. They may sit you in a room or surround you with inspectors, turn on a tape recorder, or even videotape the interview. What you must do is ensure that you ask clearly and establish as soon as inspectors arrive whether they are engaged in an inspection or a criminal investigation.

How can I make sure I’m prepared for an inspection?

You can never really be totally prepared for inspection. Often, inspections can be conducted as spot surprise inspection. You can be prepared for an inspection by operating your mine in strict compliance with all of the terms of your permits and according to the sound rules and principles, your managers and professionals will have provided you. Keep detailed records and notes ready for inspection to establish consistent review and enforcement of your policies and procedures.

If you know of a coming inspection arising from an incident, then you must tell everyone to give their full cooperation. Instruct everyone to tell the truth. Nothing is more embarrassing than hearing in court that a person was told not to cooperate with an inspector.

Most importantly, we repeat, when inspectors arrive on site, ensure that you clarify whether the inspectors are conducting a compliance inspection or conducting an investigation. If they are doing the latter, then you must withdraw cooperation unless they can produce a search warrant, and you should instruct people that they need not speak with investigators.

Who is present during an inspection?

You can expect a team of inspectors from different provincial and federal agencies to arrive on site. You can have inspectors from provincial and federal Ministry of Environment. Officers and inspectors from the Department of Fisheries. Mining inspectors from Ministry of Mines.

If this is an investigation, you will also see Conservation Officers and peace officers from the various Ministries. They are obligated to identify themselves as investigators and they are obligated to advise you if they are conducting an investigation.

If a team of investigators and inspectors arrive together, which may happen in remote mine sites, then you are in a very difficult position. You have the right to refuse to speak with an investigator to provide a statement against you.

How do I deal with an offence?

How do I contest it?

Offences under the Mines Act, Environmental Management Act, and other regulatory statutes are prosecuted like any other criminal offences. Investigative agencies will send their recommendations to a Crown Counsel, the criminal prosecutor. In British Columbia, most mine spills and other breaches of mining and environmental laws are sent to a specialized team of prosecutors experienced with such investigations.

A Crown Counsel must then decide whether to approve charges. A Crown prosecutor must be satisfied that there is a substantial likelihood of conviction and that there is a strong public interest in prosecuting the case. This is the first opportunity to deal with the situation. Sometimes, negotiating with the prosecutor at this stage can prevent charges from being laid in the first place.

If the Crown decides to proceed, then they will issue a document called an “Information” which is served on the officers of the company and the individuals personally charged, if any. There will be a series of court hearings to manage the trial itself - before the trial. During this time, it’s customary for lawyers and clients to review the material disclosed by the Crown, including the investigation report, laboratory results, witness statements, and other reports to understand the case.

Most of the time, Crown and defence lawyers will negotiate a plea arrangement that reflects the defence lawyer’s honest assessment of the strength of the investigation and the client’s issues. Otherwise, the parties will proceed to a trial conducted in the province’s criminal courts.

What if I do nothing?

When served with charges, if you do nothing, then you will likely be convicted by the courts of the most serious offences and receive the most serious range of penalties requested by the Crown. This could mean that directors, officers, employees, and agents may face jail time, be required to pay substantial fines, face other onerous court orders, and have their names published by the press as these cases often attract significant media attention.

Will I need a lawyer?

Mining prosecutions, like many other areas of white-collar criminal law, are incredibly complex. Defending oneself against parallel processes of administrative inspections and criminal investigations, and likely parallel processes of criminal trials and administrative penalties make navigating these waters very difficult, even for experienced lawyers. The consequences of being convicted of offences include jail time and heavy fines. Administrative penalties can include severe restrictions on further activity, expensive remediation orders, or even halt work orders. Retaining a lawyer is highly recommended.

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