Case Summary: Municipal Bylaws Do Not Apply to Activities Authorized under
Permit Issued under Mines Act because of Exclusive Provincial
Jurisdiction over "Mines" and "Mining Activities"
O.K. Industries Ltd. v. Highlands (District), [2021] B.C.J. No. 85, 2021 BCSC 81, British Columbia Supreme Court, January 20, 2021, C.E. Hinkson C.J.S.C.
The petitioner O.K. Industries Ltd. was engaged in the quarrying of mining aggregates. It purchased vacant and unimproved property from the Province located within the respondent District of Highlands, a municipal corporation created pursuant to the Community Charter, S.B.C. 2003, c. 26.

The petitioner sought a permit to operate a quarry on the property. The respondent opposed that application. The Province, through the Senior Inspector of Mines, issued the petitioner a quarry permit pursuant to the Mines Act, R.SB.C. 1996, c. 293. The quarry permit was subject to detailed authorizations and conditions. The quarry permit specifically restricted vegetation clearing and other ecological activities. The quarry permit also indicated other laws and regulations may apply to the petitioner's activities, including local government bylaws. Read the full article by Joel A. Morris with Harper Grey LLP.

McCarthy Tétrault Publishes Mining in the Courts, Vol. XI
The 11th annual edition of Mining in the Courts provides a one-stop annual update on legal developments impacting the mining industry. In addition to providing summaries of many of the most important cases, this edition contains articles with our insights on current legal trends and what we think the industry can expect to face in the coming year.

Topics covered in this edition include:

• Aboriginal Law and UNDRIP;
• Administrative Law;
• Bankruptcy and Insolvency;
• Civil Procedure;
• Constitutional Law;
• Contract Law;
• COVID-19 and its impact on the Mining Sector;
• Criminal Law;
• Climate Disclosure and Environmental Law;
• Intellectual Property Litigation;
• Labour and Employment Law, including workplace impairment;
• Shareholder Rights and Remedies; and
• Tax Law.

A PDF version of this McCarthy Tétrault publication can be downloaded here and additional information about the publication can be found on the McCarthy Tétrault website https://www.mccarthy.ca/en/insights/books-guides/mining-courts-vol-xi Authors include: – Aidan L. Cameron, Lindsay Burgess, Kathryn Gullason, Selina Lee-Andersen, Meghan S. Bridges, Miranda Lam, Timothy St. J. Ellam, Steven Tanner, James S. S. Holtom, Tracey Doyle, Kendra Levasseur, Gabriel Faure, François Alexandre Toupin, Gabrielle G. Maurer, Bryn Gray, Ben Ratelband, Justine Lindner, Caroline-Ariane Bernier, Mathieu Bernier-Trudeau, Marco Fimiani, Daniel Thomas and Alexis Hudon.

Teck Coal Fined Record $60 Million for
BC River Contamination
The company's Teck Coal Ltd. (TCL) subsidiary pleaded guilty to two charges of depositing a deleterious substance under the federal Fisheries Act related to discharges of selenium and calcite into the Fording River and a pond in 2012. Those substances, Associate Chief Justice Paul Dohm heard from prosecutor Alexander Clarkson as part of a joint submission to the court, can cause deformities and mortality in fish fry.

Dohm said cutthroat trout were affected by discharges from the Fording and Greenhill's mines. Fish had moved from the river into mine settling ponds. Further, he said, calcite can bind rock and gravel together and harm fish habitats.

Selenium is a naturally occurring element that is essential to human health, but at high concentrations it can be toxic to fish, birds and amphibians. Dohm said Tech Coal was aware of selenium and calcite harms prior to 2009 but has taken significant steps since 2012 "to reduce its presence in the Elk Valley watershed." But, said Dohm, there has been "very serious damage," although he added the company is of good corporate Canada and one of the world's leading environmentally committed companies. Read the BIV article.

Health, Safety and Reclamation Code for
Mines in British Columbia Amendments
On April 1, 2021 a number of amendments to the Code came into force. According to the government, the intent of these changes is to provide greater worker protection and oversight for the mining industry.

The revisions include:

• adding cannabis in the impairment clause to align with federal legalization
• adding avalanche safety requirements
• adding gas detection and blowout prevention for exploration sites
• updating Workplace Hazardous Materials Information System (WHMIS)
• updating requirements to ensure safety mechanisms are in place for under-truck repairs on haul trucks
• updating clauses related to pressure vessels to ensure they meet current Canadian Standards Association standards
• updating legislation references in the Code for the Public Health Act
• modernizing the requirements for atmospheric detection in underground mines

Additionally, the chief permitting officer now oversees the provisions of the code related to the permitting process, demonstrating the separation of accountabilities established under the Mines Act, which was amended in August 2020. The chief inspector of mines remains accountable for health and safety, as well as compliance and enforcement functions.

Canada Announces the
Critical Minerals List
On March 11, 2021, Canada unveiled its Critical Minerals List. The list includes 31 minerals considered integral to the Canadian economy, all of which are available in Canada. The list highlights focus areas in future Canadian mining policy and investments and builds on the existing Canadian Minerals and Metals Plan. The plan is a framework and signals the future strategic direction Canada will encourage in support of national security and economic growth objectives through the minerals and metals industry. Read the full article by Radha Curpen, Sharon Singh, Sander Grieve and Kenryo Mizutani with Bennett Jones LLP.

Recent BCOGC Bulletins
The BCOGC has recently issued the following bulletins:

• INDB 2021-08 – Release of New Light Control Best Practices Guideline
• INDB 2021-09 – Regulation Changes – Consultation and Notification Regulation; Service Regulation; Fee, Levy and Security Regulation
• INDB 2021-10 – A new Oil and Gas Processing Facility Regulation (OGPFR) has been approved
• INDB 2021-11 – Natural Gas Levy Rate Change

Visit the BCOGC website to view this and other bulletins.

Gas Utility Act

Failure to Report Spills May Attract Penalties up to $75,000: 
New Administrative Penalties in Effect for BC Land-based Spills
In February 2021, more than three years after BC's land-based spills regime came into force (see our previous legal update), the BC government amended the Administrative Penalties (Environmental Management Act) Regulation (the Regulation) to allow the government to impose fines for contraventions of the Spill Preparedness, Response and Recovery provisions of the Environmental Management Act and associated regulations. The new amendments create three categories of penalties with maximum limits of $75,000, $40,000 and $10,000. Of note, the amendments allow administrative penalties of up to $75,000 to be levied for failing to:

• Report an actual or potential spill that is at imminent risk of occurring to the Provincial Emergency Program (by phone at 1-800-663-3456).
• Take specific actions if a spill occurs or is at imminent risk of occurring, including a failure to identify and mitigate spill-related environmental, human health, and infrastructure impacts.
• Have a compliant spill contingency plan in place.

Read the full article by Max Collett, Emily Chan and Michael Manhas with Norton Rose Fulbright Canada LLP.

Road Maintenance and Protection of Fish Habitat
One aspect of environmental management the Forest Practices Board often examines is the protection of fish habitat; most recently in its special investigation on Conserving Fish Habitat (2020), which found that sediment from forest service roads (FSR) in streams is a common source of potential harm to fish habitat. Elevated levels of sediment may be harmful to fish and negatively affect their habitat.

In a recent Board audit, auditors found a section of a FSR had been sliding into a fish stream for several years. There were multiple industrial road users – none of which were fully aware of their maintenance obligations and legal requirements – and none had stabilized the road. To protect fish habitat it is important for road users to understand legislative requirements for road maintenance, understand who is responsible for road maintenance, and apply sound road maintenance practices. The Forest Planning and Practices Regulation (FPPR) provides protection for fish habitat by requiring persons responsible for road maintenance to: Read the full article by Daryl Spencer, RPF published in the BC Forest Professional Spring 2021 (PDF).

The Federal Carbon Pricing Regime is Constitutional –
What the Supreme Court's Decision Means for Business
On March 25, 2021, the Supreme Court of Canada (the "SCC") released the much-anticipated decision on the provincial challenges to the constitutionality of the federal Greenhouse Gas Pollution Pricing Act (the "GGPPA"). The verdict: the GGPPA is constitutional. The SCC's decision to uphold the GGPPA affirmed the federal government's authority to regulate greenhouse gas ("GHG") emissions through a GHG pricing system under the "national concern branch" of the "peace, order and good government" power ("POGG") of the Constitution Act, 1867. Each of Alberta, Ontario, and Saskatchewan had previously challenged the federal GGPPA's regulation of such matters as an intrusion into provincial powers. Read the full article by Selina Lee-Andersen, Joanna Rosengarten, Kimberly Howard, William Horne and Ashley Wilson with McCarthy Tetrault LLP.

BC Timber Sales Audit in Burns Lake Finds Issues
State-Province Joint Report
An audit of BC Timber Sales (BCTS) and timber sale licence (TSL) holders in the Burns Lake Field Unit portion of BCTS's Babine Business Area found compliance with BC's forestry legislation, with two exceptions, according to the audit report. "BCTS complied with requirements of the Forest and Range Practices Act and the Wildfire Act. However, auditors found two bridges had guardrails that needed repair and several TSL holders' fire hazard assessment practices require improvement," said Kevin Kriese, board chair, Forest Practices Board. Read the full article published by the Forest Practices Board.

State of Regulation of Plastics in Canada: The Basics
Plastics have become part of the fiber of daily life in Canada. Their low cost, durability and utility make them an attractive material. Over the last 70 years, the production of plastics globally has increased more than any other manufactured material. Plastic resin and plastic product manufacturing in Canada accounts for more than five per cent of sales in the Canadian manufacturing sector. If the trend continues in this regard, current forecasts predict little change in the current management of the plastics economy.

However, as highlighted by The Honourable Jonathan Wilkinson, Canada's minister of Environment and Climate Change, in a news release dated Oct. 7, 2020, the government recognises that Canadians expect them to take action in order to improve environmental protections and reduce plastic pollution across the country. Read the full article by Jonathan Cocker, Julie-Anne Pariseau, Morgane Larnder-Besner, Brianne Taylor with the firm Borden Ladner Gervais.

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decision in the month of March:

• Dario Rossi; Cora Rossi; Rocky Rossi; Samantha Rossi v. Assistant Water Manager[Final Decision – Appeal Dismissed]

Environmental Management Act

• GFL Environmental Inc.; Michael Dumancic; Nathalie McGee; Meaghan Lyall; Margaret & Foster Richardson; Wendy Betts; David Frame; Carol Ann La Croix; Joss Rowlands; Shelley Lee; Barry Mah; Trish Steinwand; Harry Dhaliwal; Joan Hislop; Douglas Burgham; Jennifer Burgham; Douglas McDougall; Michael W. Betts v. District Director, Environmental Management Act [Final Decision – Appeals Granted in Part]

Visit the Environmental Appeal Board website for more information.

Carbon Tax Act

Climate Change Accountability Act

Integrated Pest Management Act

Water Protection Act

Guidelines – Occupational Health and Safety Regulation

• Part 4 General Conditions
  
  • G4.16 Training (revised)
  • G4.38 Extreme temperatures (revised)
  • G4.46 Definition of musculoskeletal injury (MSI) (revised)
  • G4.66 Means of illumination (retired)
  • G4.67 Brightness, reflectance and glare (revised)
  • G4.68 Illumination measurement (revised)
  • Part 21 Blasting Operations
  
  • G21.3 Dangerous incident reports (revised)
  • Part 23 Oil and Gas
  
  • G23.22 Driver training (revised)
  • G23.60 Rotary tongs (revised)

• Gatherings and Events – March 31, 2021 (PDF, 465KB)
• Requirements: Indoor Individual Exercise – March 31, 2021 (PDF, 352KB)
• Variance Suspension: Indoor Worship Services on Four Days – March 29, 2021 (PDF, 207KB)
• Variance: Outdoor Worship Services – March 23, 2021 (PDF, 250KB)
• Read related Public Heath guidelines
• Food and Liquor Serving Premises and Retail Establishments which Sell Liquor – March 31, 2021 (PDF, 377KB)
• Regulated and Unregulated Health Professionals SARS-CoV-2 Immunization Order – March 24, 2021 (PDF, 458KB)
• Emergency Medical Assistants SARS-CoV-2 Immunization Order – March 18, 2021 (PDF, 289KB)
• Agricultural Temporary Foreign Workers – March 14, 2021 (PDF, 279KB)
• Ministry of Health – Overview of Visitors in Long-Term Care and Seniors' Assisted Living – April 1, 2021 (PDF, 672KB)