Submission guidelines on enforcement matters: Canada-Chile agreement

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1. What is a submission on enforcement matters?

1.1 A "submission on enforcement matters" ("submission") is a documented assertion that a Party to the Agreement on Environmental Cooperation between the Government of Canada and the Government of the Republic of Chile ("Agreement") is failing to effectively enforce its environmental law. The relevant Articles of the Agreement are annexed to these guidelines.

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2. Who can make submissions on enforcement matters?

2.1 Any non-governmental organization or person established or residing in the territory of a Party to the Agreement may make a submission on enforcement matters for consideration by the National Secretariats established under Article 11 of the Agreement. The term "non-governmental organization" is defined in Article 44(1) of the Agreement.

2.2 The submission must clearly identify the person(s) or organization(s) making the submission ("Submitter(s)").

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3. How are they to be submitted?

3.1 A written copy of the submission must be received by the Canada-Chile Commission for Environmental Cooperation at either National Secretariat at one of the following addresses:

Canada-Chile Commission for Environmental Cooperation
National Secretariat of Canada
Environnement Canada
200 Sacré-Coeur Boulevard, 15th floor
Gatineau (Québec)
Canada K1A 0H3
CAN-CHIL2@EC.GC.CA

Comisión Canadá-Chile para la Cooperación Ambiental
Secretariado Nacional Chileno
Ministerio del Medio Ambiente
Teatinos 254/256
Santiago, Chile

3.2 Submissions may be made in English, French or Spanish, which are the official languages of the Agreement.

3.3 Submissions should not exceed 15 pages of typed, letter-sized paper, excluding supporting information. Submissions will not be accepted by fax or any other electronic means. Where possible, a copy of the submission on computer diskette should also be provided.

3.4 Submissions must include the complete mailing address of the Submitter.

3.5 The National Secretariat which received the submission will promptly acknowledge the receipt of any correspondence or written document(s) relating to the initiation of the submission process and copy the other National Secretariat on such acknowledgement, and all other correspondence related to the submission.

3.6 Any correspondence, in order to be considered a submission, should be identified as such and should contain the supporting information necessary to enable, at the proper time, the assessment of the submission based on the criteria listed in Article 14(1) of the Agreement.

3.7 Formal notifications by the National Secretariats to a Submitter will be made in writing and sent by any reliable means of notification which provides a record of the notification having been sent and received.

3.8 The National Secretariats will inform the Council of the initiation and progress of all submissions.

3.9 The National Secretariats will inform the Submitter of the progress of its submission, as provided for in these guidelines.

3.10 The National Secretariats may at any time, during their consideration of the submission pursuant to Article 14(1) of the Agreement, notify the Submitter of any minor errors of form in the submission in order for the Submitter to rectify them.

3.11 The National Secretariats and the Joint Submission Committee will make their best efforts to take all actions necessary to process a submission in a timely manner.

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4. What should be included in a submission?

4.1 A submission on enforcement matters will only be considered if that submission meets the criteria set forth in Article 14(1) of the Agreement and the relevant sections of these guidelines.

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Initial Consideration of a Submission by the National Secretariats

5. What criteria must a submission address?

5.1 The submission must assert that a Party is failing to effectively enforce its environmental law and should focus on any acts or omissions of the Party asserted to demonstrate such failure. For purposes of determining if a submission meets the criteria of Article 14(1) of the Agreement, the term "environmental law" is defined in Article 44(2) of the Agreement.

5.2 The Submitter must identify the applicable statute or regulation, or provision thereof, as defined in Article 44(2) of the Agreement.

5.3 Submissions must contain a succinct account of the facts on which such an assertion is based and must provide sufficient information to allow for the review of the submission, including any documentary evidence on which the submission may be based.

5.4 A submission must appear to be aimed at promoting enforcement rather than at harassing industry.

5.5 The submission must indicate that the matter has been communicated in writing to the relevant authorities of the Party in question and indicate the Party’s response, if any. The Submitter must include, with the submission, copies of any relevant correspondence with the relevant authorities. The relevant authorities are the agencies of the government responsible under the law of the Party for the enforcement of the environmental law in question.

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6. What if the submission does not meet these criteria?

6.1 Where the National Secretariats find that a submission does not meet the criteria set out in Article 14(1) of the Agreement or any other requirement set out in these guidelines, with the exception of minor errors of form contemplated in section 3.10 of these guidelines, the National Secretariats will promptly notify the Submitter of the reason(s) why the submission will not be considered further.

6.2 After receipt of such notification from the National Secretariats, the Submitter will have 30 days to provide either National Secretariat with a submission that conforms to the criteria of Article 14(1) of the Agreement and to the requirements set out in these guidelines.

6.3 If the National Secretariats again find that the Submitter has not met the criteria of Article 14(1) of the Agreement or the requirements set out in these guidelines, the National Secretariats will promptly inform the Submitter of their reason(s), and inform the Submitter that the process is terminated with respect to that submission.

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Determining whether a Submission on Enforcement Matters Warrants Preparation of a Factual Record

7. When is a response from the Party to the submission merited?

7.1 If one or both National Secretariats find that the submission meets the criteria set out in Article 14(1) of the Agreement, the submission will be forwarded to the Joint Submission Committee which will decide whether the submission merits requesting a response from the Party concerned.

7.2 As set forth in Article 14(2) of the Agreement, the Joint Submission Committee will, in making that decision, be guided by whether:

(a) the submission alleges harm to the person or organization making the submission;

(b) the submission, alone or in combination with other submissions, raises matters whose further study in this process would advance the goals of the Agreement;

(c) private remedies available under the Party’s law have been pursued; and

(d) the submission is drawn exclusively from mass media reports.

7.3 In considering whether the submission alleges harm to the person or organization making the submission, the Joint Submission Committee will consider such factors as whether:

(a) the alleged harm is due to the asserted failure to effectively enforce environmental law; and

(b) the alleged harm relates to the protection of the environment or the prevention of danger to human life or health (but not directly related to worker safety or health), as defined in Article 44(2) of the Agreement.

7.4 In considering whether a response from the Party concerned should be requested when the submission is drawn exclusively from mass media reports, the Joint Submission Committee will determine if other sources of information relevant to the assertion in the submission were reasonably available to the Submitter.

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8. What if it is determined that no response from the Party is merited?

8.1 Where the Joint Submission Committee decides that no response from the Party is merited, the Joint Submission Committee will notify the Submitter, through the National Secretariats, of the reason(s). The Joint Submission Committee may consider new or supplemental information provided by the Submitter, through the National Secretariats, within 30 days following receipt by the Submitter of such notification. If no new or supplemental information is received by the Joint Submission Committee within this time period, or if the Joint Submission Committee decides that no response from the Party is merited in light of the new or supplemental information provided by the Submitter, the process will be terminated with respect to that submission, and the Joint Submission Committee will so notify the Submitter through the National Secretariats.

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9. How is a response from the Party requested?

9.1 Where the Joint Submission Committee decides that a submission merits a response from the Party concerned, the Joint Submission Committee will forward to the Party a copy of the submission and any supporting information provided by the Submitter. The Joint Submission Committee will inform both National Secretariats of this.

9.2 The Party will advise the Joint Submission Committee within 30 days, or in exceptional circumstances and on notification to the Joint Submission Committee, within 60 days of delivery of the request for a response:

(a) whether the matter is the subject of a pending judicial or administrative proceeding, or whether the matter has previously been or is presently been considered by the Secretariat of the Commission for Environmental Cooperation of the North American Agreement on Environmental Cooperation, and

(b) of any other information that the Party wishes to submit, such as

i) whether the matter was previously the subject of a judicial or administrative proceeding, and

ii) whether private remedies in connection with the matter are available to the Submitter, and whether such remedies have been pursued.

9.3 The Party may include in its response whether environmental policies have been defined or actions have been taken in connection with the matter in question.

9.4 If the Party informs the Joint Submission Committee that the matter raised in the submission is the subject of a pending judicial or administrative proceeding, as defined in Article 44(3) of the Agreement, or that the matter has previously or is presently being considered by the Secretariat of the Commission for Environmental Cooperation of the North American Agreement on Environmental Cooperation, the Joint Submission Committee will proceed no further with the submission, and will notify the Submitter, through the National Secretariats, of its reason(s) and that the submission process is terminated.

9.5 If the Joint Submission Committee considers that the submission, in light of any response provided by the Party, does not warrant developing a factual record, the Joint Submission Committee will notify the Submitter, through the National Secretariats, of its reason(s) and that the submission process is terminated.

9.6 The Joint Submission Committee may consolidate two or more submissions that relate to the same facts and the same asserted failure to effectively enforce an environmental law. In other situations where two or more submissions relate essentially to the same facts and enforcement matter and the Joint Submission Committee considers that it would be more efficient or cost-effective to consolidate them, it may so propose to the Council through the National Secretariats.

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10. How is a decision on whether or not to prepare a factual record taken?

10.1 If the Joint Submission Committee considers that the submission, in light of any response provided by the Party or after the response period has expired, warrants developing a factual record, the Joint Submission Committee will so inform the Council and provide the Council with its reason(s), a copy of the submission, the supporting information provided with the submission, and any other relevant information, to the extent these have not already been provided to the Council.

10.2 In cases where at least one Party supports the Joint Submission Committee’s consideration that a factual record be prepared, the Council will direct that a factual record be prepared. Any such decision will be noted in the registry and in the public file described in these guidelines.

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11. How is a factual record prepared?

11.1 The National Secretariat of the Party which is not the subject of the submission will commission an expert in environmental matters to prepare a factual record. The expert in environmental matters will be selected from a roster of such experts established by the Parties.

11.2 In preparing draft and final factual records, the expert in environmental matters will consider any information furnished by a Party. The expert in environmental matters may consider any relevant technical, scientific or other information:

(a) that is publicly available;

(b) submitted by interested non-governmental organizations or persons;

(c) submitted by the Joint Public Advisory Committee (JPAC); or

(d) developed by independent experts.

11.3 If the JPAC provides relevant technical, scientific or other information to either National Secretariat relating to the development of a factual record, that National Secretariat will provide copies of the information to the expert in environmental matters, to the Council and to the other National Secretariat.

11.4 All contributors to the factual record process are encouraged to submit only relevant information, reducing wherever possible the volume of material submitted.

11.5 The expert in environmental matters will submit the draft factual record for consideration by the Council. Any Party may provide comments on the accuracy of the draft within 45 days. The expert in environmental matters will then prepare the final factual record for the consideration of the Council, incorporating any such comments as appropriate.

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12. What is included in a factual record?

12.1 Draft and final factual records prepared by the expert in environmental matters will contain:

(a) a summary of the submission that initiated the process;

(b) a summary of the response, if any, provided by the concerned Party;

(c) a summary of any other relevant factual information; and

(d) the facts presented by the expert in environmental matters with respect to the matters raised in the submission.

12.2 The final factual record will incorporate, as appropriate, the comments of any Party.

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13. Will the final factual record be made public?

13.1 At the request of either Party, the Council shall make the final factual record publicly available within 60 days following its submission. A copy of the final factual record will be provided to the Submitter by the National Secretariats.

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14. Can a submission under consideration be withdrawn?

14.1 If a Submitter informs either National Secretariat in writing that it no longer wishes to have the submission process continue with respect to its submission, that National Secretariat will inform the other National Secretariat and they will ensure that the submission proceeds no further, and will so inform the Council. If two or more submitters have made a joint submission, all of the Submitters must inform one of the National Secretariats in writing that they no longer wish to have the submission process continue, before the submission may be withdrawn.

14.2 Where a National Secretariat has commissioned an expert in environmental matters to prepare a factual record on a submission, the withdrawal of the submission will be communicated to the Council and to the selected expert in environmental matters, and the preparation of the factual record will proceed no further, pending guidance from the Council.

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15. How will information on the status of submissions and factual records be made publicly available?

15.1 The National Secretariats will establish a registry to provide summary information so that any interested non-governmental organization or person, as well as the JPAC, may follow the status of any given submission during the submission process. The registry will be accessible to the public. Subject to the confidentiality provisions of the Agreement and each Party's domestic law and of these guidelines, the registry will include the following information unless decided otherwise by the Council:

(a) a list of all the submissions including:

i) the name of the Submitter and the name of the Party addressed in each submission;

ii) a summary of the matter addressed in the submission that initiated the process, including a brief description of the asserted failure(s) to effectively enforce environmental law;

iii) the name and citation of the environmental law in question;

(b) a summary of the response provided by the Party, if any;

(c) a summary of the notifications to the Submitter, including notification that:

i) a given submission does not meet the criteria set forth in Article 14(1) of the Agreement;

ii) a response is requested from the Party concerned;

iii) the Joint Submission Committee has decided that no response from the Party concerned is merited;

iv) the Council has directed that a factual record not be prepared;

v) the final factual record has been provided to the Council;

(d) the Council’s decision regarding the preparation of a factual record; and

(e) the notice regarding the public availability of the factual record.

15.2 Any summary will contain information sufficient to enable interested non-governmental organizations or persons or the JPAC to provide relevant information in the development of a factual record.

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16. Does the public have access to documents relating to individual submissions?

16.1 The National Secretariats will maintain a file on each submission in a manner suitable for public access. Subject to confidentiality provisions of the Agreement and each Party’s domestic law and of these guidelines, the National Secretariats will place in the file in a timely manner the following:

(a) the submission and supporting information, including any documentary evidence on which the submission may be based;

(b) any response by a Party, developed under Article 14(3) of the Agreement;

(c) any notifications made to the Submitter by the National Secretariats and the Joint Submission Committee;

(d) the final factual record under Article 15(7) of the Agreement; and

(e) any additional information gathered by the expert in environmental matters and considered by the National Secretariats relevant to the preparation of the factual record.

16.2 These documents will be placed in the public file in a timely manner.

16.3 When a submission names an individual or entity, the Party concerned may notify that individual or entity of the existence of that submission.

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17. How will privacy and confidentiality be safeguarded?

17.1 In accordance with Article 11(6)(a) of the Agreement, the National Secretariats and the Joint Submission Committee will safeguard from disclosure any information they receive that could identify a Submitter if the Submitter so requests, or if the National Secretariats and the Joint Submission Committee otherwise consider it appropriate. In accordance with Article 11(6)(b) of the Agreement, the National Secretariats and the Joint Submission Committee will safeguard from disclosure to the public any information received from a non-governmental organization or person where the information is designated by that non-governmental organization or person as confidential or proprietary. The Parties will have access to this confidential or proprietary information, except information that could identify the Submitter pursuant to Article 11(6)(a) of the Agreement.

17.2 The National Secretariats and the Joint Submission Committee will safeguard from disclosure any information provided by the Council or a Party and designated as confidential.

17.3 Given the fact that confidential or proprietary information provided by a Party, a non-governmental organization or a person may substantially contribute to the opinion of the Joint Submission Committee that a factual record is not warranted, contributors are encouraged to furnish a summary of such information or a general explanation of why the information is considered confidential or proprietary.

17.4 If a Party provides information relating to a submission on enforcement matters to the National Secretariats, the Joint Submission Committee, the Council, the JPAC or another Party, that is confidential or proprietary, the recipient will treat the information on the same basis as the Party providing the information.

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18. What is the relationship between these guidelines and the Agreement?

18.1 These guidelines are not intended to modify the Agreement. If there is a conflict between any provision of these guidelines and any provision of the Agreement, the provision of the Agreement will prevail to the extent of the inconsistency.

Chilean National Secretariat

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