Gov’t commissioned review condemns BC’s ‘professional reliance’ model

VANCOUVER — Big changes to the way B.C.’s mining sector is regulated may be on the way. At least that’s the signal given by a newly released, provincial government-commissioned report that criticizes the way the B.C. government manages the province’s natural resources.

Mark Haddock

The report by lead author Mark Haddock — a University of Victoria environmental law professor and Forest Practices Board general counsel — comes 17 years after the “professional reliance” model was made modus operandi of B.C.’s natural resources sector by the newly elected government of then-premier Gordon Campbell, who was swept to power in 2001 on a pro-business platform after a decade of left-leaning New Democratic Party rule.

One of Campbell’s first orders of business was a red-tape cutting drive that sought to reduce the number of regulations by one-third and reduce the size of the public service. The natural resources sector was given particular focus, given the Liberal government’s position that the sector was among the most over-regulated.

The new professional reliance model was key to this policy change. In essence, qualified professionals — engineers, geoscientists, biologists, foresters, and others hired by companies proposing natural resource projects — would replace civil servants in many regulatory functions, such as tasks related to environmental impact reviews. As a result, these qualified professionals would gain more control over the regulatory process, including the publication and distribution of information.

To ensure the public its interests would remain protected under this new model, the government vowed to step up its monitoring, compliance and enforcement functions. In addition, professional organizations were urged to step up the regulation of their members’ activities, and discipline any violators of their codes of conduct.

Fast-forward to 2014, when the tailings dam of Imperial Metals’ (TSX: III; US-OTC: IPMLF) Mount Polley copper-gold mine in B.C. failed, releasing millions of cubic metres of mining waste into Polley Lake and the surrounding watershed.

Carol Bellringer. Credit: Office of the Auditor General of British Columbia.

Shortly after, B.C.’s Auditor General Carol Bellringer carried out an audit of compliance and enforcement of the province’s mining sector and concluded it was inadequate to protect the province from environmental risks.

Echoing complaints of environmental and community activists, Bellringer said the provincial government’s oversight of qualified professionals, and the reports they submit, was inadequate and recommended improved policies and procedures in this regard.

The spotlight on the professional reliance model grew brighter after the B.C. provincial election in 2017, which saw the Liberals defeated after 16 years in power.

In return for supporting the new minority NDP government, the Green Party demanded a reform of the professional reliance model “so that British Columbians’ faith in resource development can be restored.” The government announced a review shortly after.

The resulting review by professor Haddock, published in late June, recommends improving professional governance and strengthening the provincial government’s engagement and oversight of professionals. His recommendations are split into three areas.

First, Haddock calls on the provincial government to establish an Office of Professional Regulation and Oversight that would be independent of the natural resource ministries and focused on issues of professional organization governance. That office might have the authority to administer professional legislation for the professional organizations, design and implement a merits-based system for appointments to professional councils and committees, appeal professional organization decisions to the B.C. Supreme Court, and designate new professions to fall under its purview.

Second, he recommends the B.C. government legislate some elements of professional governance to be recognized as best practice, such as granting professional organizations the power to regulate the firms its members work for and improving the public interest duties of professional organizations.

Third, he recommends new legislation with the goals of reasserting the provincial government’s authority to make resource management and environmental protection decisions, improving compliance with and enforcement of existing laws, solidifying independence between qualified professionals and the proponents they work for, and improving the engagement of indigenous governments and local communities in project evaluations.

Haddock recommends granting the Chief Inspector of Mines more authority to attach conditions to permits and commission independent environmental studies.

The reaction to the Haddock report has been as divided as the province’s politics, with environmentalist groups hailing it as a welcome step towards improving the management of B.C.’s natural resources, and natural resource industry groups cautioning against excessive government regulation.

“As a result of the former government gutting the province’s natural resource laws, the public has lost confidence that we’re appropriately stewarding B.C.’s amazing natural legacy,” said Devon Page, the executive director of environmental law charity Ecojustice. “We want to see recommendations in the report implemented immediately.”

“We applaud the initial focus on better regulation of professionals and ensuring they meet a high standard,” said Pat Moss, executive director of the non-profit group Northwest Institute for Bioregional Research. “We look forward to the B.C. government following through on introducing strong environmental and resource legislation, and restoring the B.C. government oversight and decision-making role.”

Natural resource industry groups were less enthused. Many were caught off guard by the scope of the review, having had the impression from their prior consultation sessions with the Haddock-led effort that the review would be limited to the way professional organizations regulate their members.

“[The] report raises questions about the transparency with which the government is consulting with its citizens while it works to further protect the public interest,” said ‘Lyn Anglin, chair of the Association for Mineral Exploration and chief scientific officer of Imperial Metals. “We urge the government to limit its scope to recommendations related to professional reliance that will provide both public and investor confidence and allow our members to explore for and develop the minerals and metals that society needs in achieving a low-carbon future.”

Some questioned Haddock’s objectivity, pointing to his professional affiliations and a paper he published in 2015 that foreshadowed the conclusions of this review.

“The province of B.C. could not possibly have believed that, with his appointment, a neutral arbitrator was being put in charge of the review process,” wrote Stewart Muir, executive director of Resource Works, a pro-resource industry advocacy group. “There is clearly room for improvement, particularly in building trust. But does that really require tearing down the entire edifice?”

Bryan Cox, president and CEO of the Mining Association of British Columbia, responded that the professional reliance model “is a key component of all professional practice in the province of British Columbia and affects all areas of our economy, not just the natural resource sector,” and this model is vital to “maintaining the competitiveness of our natural resource industries.”

The next step in the review is for the B.C. government to consult with the public, including representatives of the natural resource industry, before deciding which, if any, recommendations to put into law.

A similar, parallel review of B.C.’s environmental assessment process is also ongoing.

The outcome of these two regulatory initiatives is anyone’s guess, but it looks like there will be a contentious few months ahead in the provincial capital of Victoria and beyond.