Guidelines for the use of information gathering authorities: appendix 1


Appendix 1

Canadian Environmental Protection Act, 1999
Relevant Provisions

The following provisions of the Canadian Environmental Protection Act, 1999 have been reproduced for convenience of reference only and have no official sanction. For all purposes of interpreting and applying the law, readers should consult: (a) the Acts as passed by Parliament, which are published in the "Assented to" Acts service, part III of the Canada Gazette and the annual Statutes of Canada and, (b) the regulations, as registered by the Clerk of the Privy Council and published in Part II of the Canada Gazette.

Part 3 - Information Gathering - Sections 46 to 53

| 46 | 47 | 48 | 49 | 50 | 51 | 52 | 53 |

Notice requiring information

46. (1) The Minister may, for the purpose of conducting research, creating an inventory of data, formulating objectives and codes of practice, issuing guidelines or assessing or reporting on the state of the environment, publish in the Canada Gazette and in any other manner that the Minister considers appropriate a notice requiring any person described in the notice to provide the Minister with any information that may be in the possession of that person or to which the person may reasonably be expected to have access, including information regarding the following:

  1. substances on the Priority Substances List;
  2. substances that have not been determined to be toxic under Part 5 because of the current extent of the environment's exposure to them, but whose presence in the environment must be monitored if the Minister considers that to be appropriate;
  3. substances, including nutrients, that can be released into water or are present in products like water conditioners and cleaning products;
  4. substances released, or disposed of, at or into the sea;
  5. substances that are toxic under section 64 or that may become toxic;
  6. substances that may cause or contribute to international or interprovincial pollution of fresh water, salt water or the atmosphere;
  7. substances or fuels that may contribute significantly to air pollution;
  8. substances that, if released into Canadian waters, cause or may cause damage to fish or to their habitat;
  9. substances that, if released into areas of Canada where there are migratory birds, endangered species or other wildlife regulated under any other Act of Parliament, are harmful or capable of causing harm to those birds, species or wildlife;
  10. substances that are on the list established under regulations made under subsection 200(1);
  11. the release of substances into the environment at any stage of their life-cycle;
  12. pollution prevention; and
  13. use of federal land and of aboriginal land.

Other recipients

(2) The Minister may, in accordance with an agreement signed with a government, require that a person to whom a notice is directed submit the information to the Minister or to that government.

Conditions respecting access to information

(3) An agreement referred to in subsection (2) shall set out conditions respecting access by the Minister or other government to all or part of the information that the person is required to submit and may set out any other conditions respecting the information.

Period of notice and date for compliance

(4) A notice referred to in subsection (1) must indicate the period during which it is in force, which may not exceed three years, and the date or dates within which the person to whom the notice is directed shall comply with the notice.

Compliance with notice

(5) Every person to whom a notice is directed shall comply with the notice.

Extension of time

(6) The Minister may, on request in writing from any person to whom a notice is directed, extend the date or dates within which the person shall comply with the notice.

Manner

(7) The notice must indicate the manner in which the information is to be provided.

Preservation of information

(8) The notice may indicate the period during which, and the location where, the person to whom the notice is directed shall keep copies of the required information, together with any calculations, measurements and other data on which the information is based. The period may not exceed three years from the date the information is required to be submitted to the Minister.

Guidelines

47. (1) The Minister shall issue guidelines respecting the use of the powers provided for by subsection 46(1) and, in issuing those guidelines, the Minister shall take into account any factor that the Minister considers relevant, including, but not limited to,

  1. the costs and benefits to the Minister and the person to whom the notice under subsection 46(1) is directed;
  2. the co-ordination of requests for information with other governments, to the extent practicable; and
  3. the manner in which the information collected under subsection 46(1) is to be used.

Consultation

(2) In carrying out the duties under subsection (1), the Minister shall offer to consult with the government of a province and the members of the Committee who are representatives of aboriginal governments and may consult with a government department or agency, aboriginal people, representatives of industry and labour and municipal authorities or with persons interested in the quality of the environment.

Minister may act

(3) At any time after the 60th day following the day on which the Minister offers to consult in accordance with subsection (2), the Minister may act under subsection (1) if the offer to consult is not accepted by the government of a province or members of the Committee who are representatives of aboriginal governments.

National inventory

48. The Minister shall establish a national inventory of releases of pollutants using the information collected under section 46 and any other information to which the Minister has access, and may use any information to which the Minister has access to establish any other inventory of information.

Publication in whole or in part

49. The notice published under subsection 46(1) must indicate whether or not the Minister intends to publish the information and, if so, whether in whole or in part.

Publication of inventory

50. Subject to subsection 53(4), the Minister shall publish the national inventory of releases of pollutants in any manner that the Minister considers appropriate and may publish or give notice of the availability of any other inventory of information established under section 48, in any manner that the Minister considers appropriate.

Request for confidentiality

51. A person who provides information to the Minister under subsection 46(1) may, if the Minister's intention to publish the information has been indicated under section 49, submit with the information a written request, setting out a reason referred to in section 52, that the information be treated as confidential.

Reasons

52. Despite Part 11, a request under section 51 may only be based on any of the following reasons:

  1. the information constitutes a trade secret;
  2. the disclosure of the information would likely cause material financial loss to, or prejudice to the competitive position of, the person providing the information or on whose behalf it is provided; and
  3. the disclosure of the information would likely interfere with contractual or other negotiations being conducted by the person providing the information or on whose behalf it is provided.

Additional justification

53. (1) The Minister may, after studying the reasons provided under
section 52, require the person in question to provide, within 20 days and in writing, additional justification for the request for confidentiality.

Extension of time

(2) The Minister may extend the period mentioned in subsection (1) by up to 10 days if the extension is necessary to permit adequate preparation of the additional justification.

Minister's decision

(3) In determining whether to accept or reject the request, the Minister shall consider whether the reasons are well-founded and, if they are, the Minister may nevertheless reject the request if

  1. the disclosure is in the interest of the protection of the environment, public health or public safety; and
  2. the public interest in the disclosure outweighs in importance
    1. any material financial loss or prejudice to the competitive position of the person who provided the information or on whose behalf it was provided, and
    2. any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure.

Acceptance of request

(4) If the Minister accepts the request, the information shall not be published.

Publication

(5) If the Minister rejects the request,

  1. the person has the right to ask the Federal Court to review the matter within 30 days after the person is notified that the request has been rejected or within any further time that the Court may, before the expiry of those 30 days, fix or allow; and
  2. the Minister shall advise the person in question of the Minister's intention to publish the information and of the person's right to ask the Federal Court to review the matter.

Applicable provisions

(6) Where a person asks the Federal Court to review the matter under paragraph (5)(a), sections 45, 46 and 47 of the Access to Information Act apply, with any modifications that the circumstances require, in respect of a request for a review under that paragraph as if it were an application made under section 44 of that Act.

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