Lack of Government Capacity
Issue
One of the greatest challenges to effective enforcement is the lack of capacity and availability of resources. Over the past decade, provincial and federal government departments responsible for enforcement at mines have suffered from severe budget cuts. This has resulted in a reduced workforce, a significant reduction in the number of site inspections and prosecutions, and a deterioration of the protection of local communities.142
Recently, recognizing the need for a large workforce, the provincial government’s Resource Management Coordination Process began transferring officials from the Ministry of Forests to conduct mine inspections. This process has included both in-class and field training (shadowing of mining inspectors). This suggests a shift towards greater inspection capacity for mines in the province. However, concerns remain that forestry inspectors may not have sufficient expertise with mining issues, and there is a risk that they may focus more on familiar forestry issues (such as roads and forest habitat) as opposed to other mining-focused issues (such as acid rock drainage, underground workings, and different components of mining plants and facilities).
Issue
Adequate funding is one of the key elements of a successful enforcement regime. In BC, some success has been achieved in incorporating pre-approved funding arrangements in EA Certificates.143 However, there is a need for legal provisions that ensure consistent and adequate funding sources for effective enforcement. The following recommended solutions demonstrate some available methods for achieving this goal.
Recommended Solutions
Charge fees to recover inspection costs
[Tags: Enforcement; Capacity; Cost Recovery; Fee]
As mentioned above, a minimum of one inspection a year must be carried out at surface mining operations in California. The associated legal provisions explicitly state that the proponent is responsible for the reasonable cost of the inspections.144 Similar legal provisions are in place in Washington State.145 In Quebec, legal provisions empower the government to enact regulations regarding fees payable by the proponent to cover the costs of control and monitoring measures. The fee levels are to be based on the nature and characteristics of the proponent’s activities and the number and seriousness of the offences of which the proponent has been convicted.146
Charge fees to recover administrative costs associated with issuing orders
[Tags: Enforcement; Capacity; Cost Recovery; Fee]
In New South Wales (Australia), the regulatory authority is empowered to impose a fee to recover the administrative costs associated with the preparation and issuance of a direction under the Mining Act.147
Allow recovery of enforcement costs from proponent
[Tags: Enforcement; Cost Recovery; Capacity]
Cost recovery also exists for private prosecutions. Allowing private prosecutors to recover their costs from the fines helps encourage further use of private prosecutions. Various jurisdictions have adopted legal provisions to this end, including Canada (federal government);148 Yukon149 and the Northwest Territories.150
Allow recovery of remediation costs from proponent
[Tags: Enforcement; Cost Recovery; Capacity]
BC’s Water Act allows a court to order that the offender pay the government an amount of money as compensation for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the government as a result of the commission of the offence.151 Similarly, under Canada’s amended Fisheries Act, proponents may be required to pay for any necessary measures taken by an inspector or fisheries officer to conserve or protect fish and fish habitat.152
In the European Union, if the government has carried out preventive and remedial actions itself, it may recover those costs from proponents responsible for the damage. The same polluter pays principle applies to environmental assessments carried out to determine the extent of damage and the action to be taken to repair it.153