Bill C-32: The Canadian Environmental Protection Act, 1998 (LS285E)

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	12 March 1998	First Reading:	2 June 1999
Second Reading:	28 April 1998	Second Reading:	8 June 1999
Committee Report:	15 April 1999	Committee Report:
Report Stage:	31 May 1999	Report Stage:	9 September 1999
Third Reading:	1 June 1999	Third Reading:	13 September 1999

Royal Assent: 14 September 1999 Statutes of Canada 1999, c.33 N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

Bill C-32, the Canadian Environmental Protection Act, 1999, was introduced in the House of Commons on 12 March 1998 by the Minister of the Environment. It received second reading on 28 April 1998 and was studied for almost one year by the House of Commons Standing Committee on Environment and Sustainable Development. After 250 amendments had been made to the bill in committee and at report stage, it received third reading in the House of Commons on 1 June. It was referred to the Senate, which gave it second reading on 8 June and referred it for study to the Standing Senate Committee on Energy, the Environment and Natural Resources.

Bill C-32 would replace the current Canadian Environmental Protection Act, commonly referred to as "CEPA." CEPA is Canada’s principal piece of federal environmental protection legislation. It was developed in the mid-1980s in response to growing public concern about the presence of toxic substances in the environment, a concern which, at the time, had been spurred by incidents such as the chemical contamination caused by leakage from the Love Canal disposal site near Niagara Falls, New York and the "toxic blob" found in the St. Clair River near Windsor, Ontario.

In 1985 the federal government established two task forces to review CEPA’s predecessor, the Environmental Contaminants Act, and to develop a better approach for dealing with toxic substances. The task forces concluded that the existing legislation was inadequate for dealing with the multiplicity of problems associated with toxic substances and that a new, more comprehensive approach had to be developed to manage the full life cycle of toxic substances from "cradle to grave."(1)

Acting on the task forces’ recommendations, the federal government issued preliminary draft environmental legislation in 1986. It then produced a discussion bill which, following a round of public consultation, led to the tabling of Bill C-74, the Canadian Environmental Protection Act, in June 1987. After extensive amendments were made to it in committee, Bill C-74 was passed the following year, and proclaimed in force on 30 June 1988.

CEPA is a complex piece of legislation that consolidated selected provisions and laws administered by Environment Canada. It replaced the Environmental Contaminants Act of 1975, and subsumed the Clean Air Act, the Ocean Dumping Act, the nutrient provisions of the Canada Water Act and certain provisions of the Department of the Environment Act.

CEPA’s chief importance is that it provides a framework for the management and control of toxic substances at each stage of their life cycle, from development and manufacturer/importation through to transportation, distribution, use, storage and ultimate disposal as waste. CEPA also provides the federal government with authority to enter into intergovernmental environmental agreements; establish environmental quality objectives, guidelines and codes of practice; regulate the content of fuels; regulate the nutrient concentration in cleaning agents and water conditioners; control ocean dumping through a permit system; regulate waste handling and disposal practices; improve, by means of guidelines and regulations, its own environmental performance and standards in relation to its operations and lands, including Indian reserves; and take action in cases of international air pollution. While CEPA is administered by Environment Canada, both Environment Canada and Health Canada are involved in the assessment of substances to determine whether they are toxic, and in the development of regulations, objectives, guidelines and codes of practice.

In 1994, the House of Commons Standing Committee on Environment and Sustainable Development was given the task of conducting the five-year review of CEPA, as required under section 139 of the Act. After extensive hearings, the Committee released its report It’s About Our Health! Towards Pollution Prevention in June 1995.

In its report, the Committee recommended a new approach for CEPA, which would have sustainable development as its overarching policy goal and which would be supported by the following key principles: pollution prevention, the ecosystem approach, biodiversity, the precautionary principle, and user/producer responsibility.

Stressing that the emphasis in CEPA had to shift from managing pollution after it has been created to preventing its creation in the first place, the Committee made 141 recommendations for change, including introduction of a ban on all new substances that are persistent, bioaccumulative and inherently toxic, unless the proponent can demonstrate extraordinary reasons to authorize its use for specified purposes. The Committee also recommended the adoption of a three-track approach for assessing and managing toxic substances(2) and proposed new authority for CEPA in areas such as vehicle emissions and international water pollution. It recommended the creation in CEPA of a federal safety net for environmental emergencies, and the development of a national coastal management zone policy. A more active role for Aboriginal peoples in environmental management and protection, notably under self-government and land claim settlement agreements, was also advocated. The Committee also recommended increased authority under CEPA in order to make the federal government a model environmental citizen, and adoption of a number of new enforcement tools and measures to enhance public participation.

The federal government responded to the Committee’s report on 14 December 1995 in a document entitled Environmental Protection Legislation Designed for the Future - A Renewed CEPA. Although it indicated support for a number of the Committee’s recommendations, the government did not endorse some of its key proposals regarding the assessment and management of toxic substances. Instead, the federal government stated that it would implement a different three-track system that would categorize and screen existing substances to identify priorities for assessment or for preventive or control action.

The proposed new CEPA, set out in Bill C-32, was developed from the federal government’s response to the Committee’s report. Bill C-32 is the second bill introduced to modify the Canadian Environmental Protection Act. The first bill, Bill C-74, was tabled in Parliament on 10 December 1996, but died on the order paper when the last general federal election was called. In a news release issued on the day that Bill C-32 was tabled, the Minister of the Environment indicated that the new Act would:

The Minister of the Environment noted that the new CEPA would be consistent with the Canada-Wide Accord on Environmental Harmonization signed by the federal, provincial (except Quebec) and territorial governments on 29 January 1998, and that it would be an important legislative tool for the federal government in implementing the harmonization framework in cooperation with the provinces and territories. As well, she stated that the new Act would be a key tool in delivering the highest level of environmental quality for all Canadians.

The major differences between Bill C-74 and Bill C-32, the Minister indicated, were increased recognition of voluntary efforts by industry, the need for co-operative action, and the importance of improved consultation with the provinces and territories, as well as strengthened provisions on information gathering and publication.

The current CEPA contains 139 operative sections and three schedules,(3) and is divided into nine parts, the first seven of which contain the principal provisions.(4) The proposed new CEPA, in contrast, would contain 343 operative sections and six schedules, and would be divided into the following 11 operative parts:

The six proposed schedules under the new CEPA would in turn deal with the following matters:

The new CEPA would begin with a revised declaration, which would reiterate the declaration in the current Act that "the protection of the environment is essential to the well-being of Canada," but which would also include the following words: "that the primary purpose of this Act is to contribute to sustainable development through pollution prevention." Following would be a lengthy preamble containing 15 separate commitments and goals of the Government of Canada. Three of these commitments or goals would be re-worded versions of four of the six statements found in the preamble in the current Act, while the remaining goals and commitments would deal with new concepts and priorities, notably:

Clause 1 of the bill sets out the short title of the proposed Act, the Canadian Environmental Protection Act, 1999.

Clause 2 lists 17 duties of the Government of Canada in administering the Act "having regard to the Constitution and laws of Canada." Such duties would include:

As originally proposed, clause 2(1)(a.1) (formerly clause 2(1)(a)) would have required the federal government to take cost effective measures to protect, enhance and restore the environment. Concerned that cost effectiveness might play too great a role in the selection of such measures, the House Committee deleted the words cost effective from this clause and added new clauses 2(1.1) and (2). These additional clauses would essentially require the government, before taking action under clause 2(1)(a.1), to consider the benefits accruing from the measure, in particular the short and long-term human and ecological benefits, as well as the positive economic impacts, including any cost-savings in areas such as health, environmental and technological advances and innovation.

A further paragraph was also added by the House Committee (clause 2(1)(a)) to require the government to exercise its powers in a manner that would protect the environment and human health, that applied the precautionary principle, and that promoted and reinforced enforceable pollution prevention approaches. In requiring that the precautionary principle be applied, this new clause would have used a definition of the term "precautionary principle" that excluded the words "cost-effective." These words, however, were added at report stage so that the definition of the precautionary principle in this clause would now be consistent with the one contained in the Preamble’s sixth recital.

Clause 3(1) provides definitions for 31 key terms that would be used in the new Act. Where appropriate, these definitions are considered in the clauses in which the terms appear.

Clause 3(2) specifies that a reference in the bill to "Ministers" means both the Minister of Health and the Minister of the Environment (the latter of whom would be referred to as simply the "Minister" under the Act), while a reference to "either Minister" would refer to either one of them.

Clause 4 would add a non-derogation clause under the Act respecting existing Aboriginal and treaty rights of the Aboriginal peoples of Canada.

Finally, clause 5 would re-enact section 4 of the current CEPA, which makes the Act binding on the Crown in right of Canada and of the provinces.

Clause 6 would require the Minister to establish a National Advisory Committee to enable national action and cooperative action in matters affecting the environment and in order to avoid duplication in regulatory activity among governments. This Committee would replace the existing federal-provincial advisory committee, established under section 6 of the current Act. The mandate of the National Advisory Committee would be similar to that of its predecessor, except that it would have the additional task of providing the Minister with advice on a cooperative, coordinated intergovernmental approach to the management of toxic substances. It would also be required to use the precautionary principle in giving its advice and making recommendations (new clause 6(1.1)). The Committee would consist of two federal representatives, one representative from each province and territory, and up to six representatives of Aboriginal governments, selected on a regional basis. The relevant governments would be responsible for selecting their respective representatives (new clauses 6(2.1) to (2.3)).

Clause 7(1) would in turn maintain the Ministers’ existing authority under section 5 of CEPA to establish advisory committees to report on specific matters. Clause 7(2) would require that the reports of these advisory committees (including recommendations and reasons) be made public, while clause 8 would require that the Minister include, in the annual report to Parliament required under the Act, a report of the activities of both the National Advisory Committee and such advisory committees as had been established.

This clause would maintain the Minister’s current authority under section 98 of CEPA to negotiate and, with the approval of the Governor in Council, to enter into administrative agreements with the provinces and territories. In contrast to the existing Act, however, this clause would also allow an administrative agreement to be negotiated and entered into with an Aboriginal people. Pre-publication of the proposed agreement (or notice of its availability) would be required for public comment and members of the public would be able to file a notice of objection. The Minister would have to publish a report (or give notice of its availability) summarizing how any comments or notices of objection had been dealt with. He or she would also have to publish the final text of the agreement (or give notice of its availability). Further, all administrative agreements would automatically terminate five years after coming into force but they could also be terminated on three months’ notice by either party. A new stipulation was added by the House Committee, providing that no agreement made under this clause could limit or restrict the Minister from taking any action deemed necessary for the administration or enforcement of the Act, including the conduct of inspections or investigations (clause 9(9)).

Clause 10 would maintain the Minister’s authority under section 34(5) to (10) of the current Act to negotiate equivalency agreements with the provinces and territories, which would have to be confirmed by order of the Governor in Council. Equivalency agreements suspend the application of specified federal CEPA regulations within a province or territory where equivalent provisions have been enacted. At present, such agreements may be entered into only with provinces and territories that allow two citizens to request an investigation of an alleged provincial or territorial environmental offence. This requirement would be retained, except that the new Act would require an application for investigation by only one citizen. Further, the Minister’s authority would be broadened to allow the negotiation of such agreements with Aboriginal governments; the same procedural safeguards prescribed in relation to administrative agreements would apply to these agreements (i.e., pre-publication; opportunity for the public to comment or file a notice of objection, publication of the summary and of the final text, etc.); and, like administrative agreements, equivalency agreements would expire automatically after five years, or sooner on three months’ notice. Finally, reports on both administrative and equivalency agreements would have to be made in the annual report to Parliament.

For the purposes of Part 2, clause 11 defines "environmental protection action" to mean an action under clause 22. An environmental protection action is a new civil remedy that would be available to Canadian residents under the circumstances, conditions and limitations set out under clauses 22 to 38, discussed below.

Clauses 12 to 14 would require the Minister to establish a registry, to be called the Environmental Registry, to facilitate access to documents relating to matters under the new Act. Notices and other documents published or made available by the Minister would have to be included in the registry. Subject to the provisions of the Access to Information Act and the Privacy Act, the registry would also have to contain all notices of objection filed under the Act, any approvals granted, and copies of every policy and proposed regulation or order made under the Act, as well as copies of documents submitted by the Minister to a court in relation to an environmental protection action. Clause 14 would exempt from civil and criminal proceedings authorized persons who in good faith made full or partial disclosure of such notices and documents through the registry.

Clause 15 stipulates that the rights conferred by this Part would be in addition to other specified rights under the Act.

Clause 16 would extend whistle-blower protection to persons who, without being required to do so, reported to designated authorities the commission or reasonable likelihood of the commission of an offence under the Act. The whistle-blower’s anonymity would be protected, if requested. Employees who blew the whistle or intended to do so would also be protected from being dismissed, suspended, demoted, harassed or otherwise disadvantaged in the workplace. Initially, this protection would have applied to federal employees only. The clause, however, was amended by the House Committee to extend the protection to all employees, regardless of whether the employer came under federal, provincial or territorial jurisdiction.

Clauses 17 to 21 would maintain the current right of members of the public to request an investigation of alleged offences under the Act. Unlike sections 108 and 109 of the current Act, however, such requests could be made by only one Canadian resident (instead of the current two residents) at least 18 years of age. Also in contrast to the current provisions, the Minister would be obliged to acknowledge receipt of the application within 20 days (instead of one progress report after 90 days) and to send continuous progress reports to the applicant, including an estimate of the time required to complete the investigation or implement the action until the investigation was either discontinued or action was taken.

Clauses 22 to 38 would introduce a new measure to enable members of the public to institute an "environmental protection action" against any person alleged to have committed an offence under the Act which had caused significant harm to the environment. Such actions could be taken only if the complainant had first applied for an investigation under clause 17 and the Minister had either failed to conduct the investigation and report within a reasonable time, or the Minister’s response to the investigation had been unreasonable (clause 22). The environmental protection action, however, would be precluded under the circumstances specified under clauses 24 and 25. Notice of the action would have to be given in the Environmental Registry (clause 26), and the Attorney General of Canada would be entitled to participate in the proceedings (clause 27).

At the court’s discretion, other intervenors could also be allowed to participate in the proceedings (clause 28). Several defences, set out under clause 30, would be available to the defendant in such cases. Where it was in the public interest to do so, the court could stay or dismiss the action (clause 32). Where the plaintiff succeeded in the action, the court would be empowered to make a variety of orders (clause 22(3) and 33), including an order that the defendant negotiate a plan to correct or mitigate the harm done, in accordance with the terms, limitations and other provisions set out in clauses 34 to 37. Finally, an order for costs could also be made (clause 38).

Clause 39 would maintain the right of individuals under section 136(2) of the current Act to seek an injunction where they had suffered or were about to suffer loss or damage by reason of a contravention of the Act or regulations. Clause 40 would maintain the right of individuals under section 136(1) of the current Act to bring an action to recover any loss or damage they actually had suffered by reason of the contravention. Clauses 41 and 42, in turn, deal with evidentiary and procedural matters. These clauses would largely reiterate the provisions set out at sections 136 (3) and (4) and 137 of the current Act.

Clause 43 would make the Fisheries Act definition of "fish" apply to this Part. The clause would also define the term "hormone disrupting substance."

Clause 44 would revise the Minister’s current authority under section 8 of the Act to carry out various research and monitoring activities, which would be mandatory rather than discretionary. Notably, this clause would broaden the Minister’s existing authority by requiring him or her to carry out research and studies relating to pollution prevention and hormone disrupting substances. On the other hand, it would replace the reference to the establishment and operation of a "system of environmental quality monitoring stations" with a reference to "a system for monitoring environmental quality." Clause 45 would provide the Minister of Health with new authority to conduct research and studies on the role of substances in illnesses or in health problems, and to make the information available to the public. The carrying out of these functions would also be mandatory and not discretionary, as provided in the original bill.

Clause 46 would provide the Minister with broad authority to require persons to provide information in relation to specified substances, pollution prevention and the use of federal and Aboriginal land for the purposes 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. Clause 47 would require the Minister to issue guidelines on the use of his or her information-gathering power in accordance with the factors set out in the clause, or any other factor considered relevant. Originally, this clause called for the development of guidelines on the "cost effective" use of the Minister’s information-gathering powers; however, the words "cost effective" were deleted by the House Committee. In drawing up the guidelines, the Minister would have to offer to consult with the provincial/territorial government(s) and the members of the National Advisory Committee who were representatives of Aboriginal governments. Unless the offer to consult was accepted, the Minister could take the prescribed action, (issuing guidelines on the Minister’s information-gathering powers) 60 days after the offer to consult was made. The Minister might in turn consult (discretionary) with other government departments or agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties.

Clause 48 would require the Minister to use the information gathered under clause 46, or such other information as was accessible, to establish a national inventory of releases of pollutants, or any other inventory of information. Where the Minister intended to publish the information requested under clause 46, notice to this effect would have to be given at the time the information was requested (clause 49). The Minister could publish any inventory established under clause 48, subject to any claims of confidentiality that might be made (clause 51).

Clause 52 sets out the circumstances under which claims of confidentiality might be made, while clause 53 sets out the factors the Minister would have to take into consideration in accepting or rejecting such claims. Where a claim was rejected, the aggrieved party could ask the Federal Court for a review, in which case selected provisions of the Access to Information Act would apply (clause 53).

Clause 54 largely reiterates the Minister’s current authority under section 8 of the Act to issue and publish environmental objectives, guidelines and codes of practice, although such authority would be broadened explicitly under the new Act to encompass pollution prevention. In exercising this power, the Minister would have to offer to consult with the provincial/territorial government(s) and the members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Minister could take the prescribed action (developing environmental objectives, guidelines and codes of practice) 60 days after the offer to consult was made. He or she might also consult (discretionary) with other government departments or agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties. Clause 55, in turn, would maintain the Minister of Health’s current authority under section 9 of the Act to issue objectives, guidelines and codes of practice respecting elements of the environment that might affect human life or health. In this case, the relevant Minister could consult with representatives of government, Aboriginal people, labour, industry or other interested parties, but would not have to offer to consult provincial/territorial governments or the members of the National Advisory Committee representing Aboriginal governments, as would be required of the Minister of the Environment under clause 54. The current authority of both Ministers to organize related conferences with these parties, however, would be eliminated under the new Act.

Clause 56 would provide the Minister with new authority to require, by notice in the Canada Gazette, persons or classes of persons to prepare and implement a pollution prevention plan in relation to a substance or group of substances on the List of Toxic Substances in Schedule 1 or as a measure to deal with international air pollution under clause 166(1) or international water pollution under clause 176(1). Clause 56(2) sets out the type of information that might be set out in the notice, including the commercial, manufacturing processing or other activity in relation to which the plan was to be prepared, and the factors that would have to be considered in preparing the plan. The Minister, however, would be authorized to waive any requirement respecting the consideration of specified factors if the person or company required to prepare the plan made a written request for the waiver and the Minister formed the opinion that it would not be reasonable or practicable to consider the factor for the reasons provided in the request.

Clause 57 would allow persons subject to this requirement to use a pollution prevention plan prepared on a voluntary basis or for another government or pursuant to another federal Act, if the plan satisfied the prescribed criteria. The persons could amend or supplement the plan in cases where it was deficient. Persons required to prepare and implement a pollution prevention plan under clause 56 (and other specified sections of the Act) would have to provide the Minister with a written declaration that the plan had been prepared and was being or had been implemented (clause 58). Such persons could also be required by notice in the Canada Gazette to submit the plan or part of the plan to the Minister for specified purposes (clause 60).

Clause 61 would authorize the Minister to publish a model pollution prevention plan (or a notice of its availability) to provide guidance in the preparation of such a plan, while clause 62 would allow the Minister to develop guidelines outlining the circumstances and conditions under which pollution prevention planning would be appropriate. In developing guidelines (but not model pollution prevention plans), the Minister would have to offer to consult with the provincial/territorial government(s) and the members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Minister could develop the requisite guidelines 60 days after the offer to consult was made. He or she might also consult (discretionary) with other government departments and agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties.

This clause would empower the Minister to establish and maintain a national pollution prevention information clearing-house for the purpose of encouraging and facilitating pollution prevention, and to establish a program to publicly recognize significant achievements in the area of pollution prevention.

Clause 64 (originally clause 65) would define the term "toxic substance" for the purposes of Parts 5 and 6, except that the definition would not apply where the expression "inherently toxic" was used. The proposed definition is similar, but not identical to, the one set out in section 11 of the existing Act. As proposed in clause 64, a substance would be toxic if it was entering the environment or might enter the environment in a quantity or concentration or under conditions that had or might have an immediate or long-term harmful effect on the environment or its biological diversity; that constituted or might constitute a danger to the environment on which life depended; or that constituted or might constitute a danger in Canada to human life or health.

Clause 77(4) would require the Ministers to propose the "virtual elimination" of substances found to be toxic and that met the other criteria set out in that clause. Clause 65 defines what is meant by "virtual elimination" for the purposes of Part 5. This definition, initially set out in clause 64, was materially changed by the House Committee. As amended, "virtual elimination" would mean, in respect of a substance released into the environment as a result of human activity, the ultimate reduction of the quantity or concentration of the substance in the release below the level of quantification specified by the Ministers in a list (the Virtual Elimination List) established for this purpose. Under new clause 65.1, the "level of quantification" would mean, in respect of a substance, the lowest concentration that could be accurately measured using sensitive but routine sampling and analytical methods. When the level of quantification for a substance had been specified on the Virtual Elimination List, the Ministers would be required under clause 65(3) to prescribe the quantity or concentration of the substance that might be released into the environment either alone or in combination with any other substance. In doing so, they would be required to take into account any factor or information provided for in clause 91, including, but not limited to, environmental or health risks and any other relevant social, economic or technical matters.

Clause 66 would reenact the Domestic Substances List (DSL) which would include all substances that were, between 1 January 1984 and 31 December 1986, manufactured in, or imported into Canada, in a quantity of not less than 100 kg in any calendar year, or that were used in Canadian commerce or manufacturing. The Non-domestic Substances List would also be re-enacted by this clause. The Minister or other designated person or classes of persons would be empowered to amend either list under certain conditions, and both lists, and amendments thereto, would be published in the Canada Gazette. The effect of these clauses would be similar to that of sections 25 and 26 of the existing Act.

Clause 67 would permit the Governor in Council to make regulations, on the recommendation of the Ministers, respecting the characteristics and properties of substances and groups or classes of substances, including their persistence and bioaccumulation; prescribing the substances or groups of substances in relation to which the property or characteristic might be applicable; prescribing the conditions under which and the circumstances in which the property or characteristic might be applicable; and respecting laboratory testing procedures. No regulation that was applicable to a mineral or metal could be made under this clause unless, in the Ministers’ opinion, the natural occurrence, properties and characteristics of the mineral or metals in the environment were taken into consideration.

Clause 68 would give either Minister authority to collect, generate, correlate, or evaluate data of various kinds for the purpose of assessing whether a substance, including one on the List of Toxic Substances in Schedule 1, was toxic or capable of becoming toxic, and whether and how to control the substance. The results of such investigations could be published, and recommendations could be made regarding any matter related to a substance.

Clause 69 would permit either Minister or both Ministers to issue guidelines for the purposes of the interpretation and evaluation of provisions of this Part of the legislation. In doing so, the Minister(s) would have to offer to consult with the provincial/territorial government(s) and members of the National Advisory Committee representing Aboriginal governments, and might consult with other government departments and agencies, Aboriginal people, industry, labour, municipal authorities and other persons interested in toxic substances. However, pursuant to new clause 69(2.1) added by the House Committee, the Minister would not be prevented from issuing such guidelines at any time after 60 days following the day on which an offer to consult had been made in accordance with clause 69(2). Notice of the guidelines would have to be published in the Canada Gazette and in any other manner that the Minister considered appropriate; any guidelines issued would have to be made available to the public.

Under clause 70, any person who imported, manufactured, transported, processed, distributed or used a substance in any commercial activity, and who obtained information that the substance was toxic or might become toxic would be required to provide that information to the Minister of the Environment, unless the person knew that either Minister already had that information.

Clause 71 would permit the Minister to publish notices in the Canada Gazette requiring persons to provide a wide range of information to the Minister on substances, and samples of the substance, for the purposes of assessing whether those substances were toxic or capable of becoming toxic or assessing whether and the manner in which to control them. The Minister would also be empowered to write to a person engaged in an activity involving such a substance requiring that person to conduct specified toxicological and other tests and to submit the results of those tests to the Minister; and to set specific time frames for supplying information and samples; the Minister could extend such times on written request. Clause 72, however, would preclude the Minister from ordering toxicological or other tests on a substance unless both Ministers had reason to suspect that the substance was toxic or capable of becoming so, or the substance had been determined under the Act to be toxic or capable of becoming toxic.

Clause 73 would require the Ministers to categorize substances on the Domestic Substances List and identify those that met the following criteria: (a) they might present the greatest potential for exposure to individuals in Canada, or (b) they were persistent or bioaccumulative, and inherently toxic to human beings or to non-human organisms, as determined by laboratory or other studies. Criteria for persistence and bioaccumulation could be prescribed in regulations made under clause 67. Where the necessary information was lacking on such substances, the Ministers could cooperate with other Canadian governments, foreign governments, or any interested persons in order to obtain it. Pursuant to an amendment made by the House Committee, the categorization of the substances on the Domestic Substances List would have to be completed within seven years from the date the bill was given Royal Assent. Furthermore, when categorizing the substances, the Ministers would be required under new clause 73(3) to determine whether an amendment should be made in relation to any substance on the Domestic Substances List to indicate that the restrictions in clause 81(3) regarding significant new activities would apply with respect to that substance.

Clause 74 would require the Ministers to conduct a screening assessment in order to determine whether a substance was toxic or capable of becoming toxic. A screening assessment would be required only in relation to substances that, pursuant to the categorization process under clause 73(1), were considered to present Canadians with the greatest potential for exposure, or to be persistent or bioaccumulative and inherently toxic. A screening assessment would also have to be carried out in relation to living organisms added to the Domestic Substances List under clause 105.

Clause 75 would define "jurisdiction" as a provincial, territorial or Aboriginal government in Canada, or the government or sub-national government of a foreign state that was a member of the Organisation for Economic Co-operation and Development (OECD). The Minister would be required under clause 75(2) to develop procedures for cooperating with such jurisdictions and to exchange information on substances that were prohibited or severely restricted under those jurisdictions for environmental or health reasons. Clause 75(3) would require the Ministers to review pertinent decisions made by those jurisdictions in respect of such substances to determine whether they were toxic or capable of being toxic, unless the only use in Canada of the substance in question was regulated under another federal statute that provided for environmental and health protection.

Under clause 76, the Ministers would be required to compile a Priority Substances List, specifying those substances that the Ministers were satisfied would have to be given priority with respect to assessing whether such substances were toxic or capable of becoming so. In establishing the Priority Substances List, the Minister would have to offer to consult with the provincial/territorial government(s) and members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Ministers could proceed with the Priority Substances List 60 days after the offer to consult was made. The Minister might also consult (discretionary) with other government departments and agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties. This clause would also permit any person to request, with stated reasons, that the Minister add a substance to the Priority Substances List. The Minister would be required to respond to such a request within 90 days. Under certain conditions, the Minister would be able to add a substance to the Priority Substances List, but a substance could be deleted only when the Ministers had decided whether it was toxic or capable of becoming toxic. Clause 76(6) would require the Minister to publish the Priority Substances List in the Canada Gazette.

New clause 76.1 was added by the House Committee. It would require the Ministers to apply a weight-of-evidence approach and the precautionary principle in conducting and interpreting the results of a screening assessment carried out under clause 74, a review of a decision of another jurisdiction under clause 75, and a full assessment of a substance on the Priority Substances List under clause 76.

Clause 77(1) would require the Ministers, after a screening, a review of another jurisdiction’s decision, or a full assessment of a substance, to publish in the Canada Gazette what proposed measure would be taken in respect of the substance, together with a summary of the relevant scientific information on which this proposal was based. Three measures would be possible under clause 77(2): (a) taking no further action; (b) adding the substance to the Priority Substances List, if it was not already on that list; or (c) recommending that the substance be added to the List of Toxic Substances in Schedule 1 and, where applicable under clause 77(4), be be virtually eliminated under clause 65(3). Clause 77(3) would require that a substance be recommended for inclusion on the List of Toxic Substances in Schedule 1 where, pursuant to a screening assessment under clause 74, the substance was determined to be toxic or capable of becoming toxic and the Ministers were satisfied that it might have a long-term harmful effect on the environment, was persistent and bioaccumulative, was inherently toxic to human beings or non-human organisms, and was present in the environment primarily as a result of human activity. Where this action was proposed with respect to a substance that met the foregoing criteria and that was not a naturally occurring radionuclide or a naturally occurring inorganic substance, the Ministers would be required under subclause (4) to propose the implementation of virtual elimination of the substance under clause 65(3). Pursuant to clause 77(5), a 60-day period for comments would be afforded following publication by the Ministers of the statement under clause 77(1) outlining the action they proposed to take.

After taking into consideration any comments filed under clause 77(5), the Ministers would be required under clause 77(6) to publish in the Canada Gazette a summary of the screening assessment, review of the decision by another jurisdiction, or full Priority Substances List assessment, together with a statement indicating the measure to be taken. Where the proposed measure was to add the substance to the List of Toxic Substances in Schedule 1, or its virtual elimination in applicable cases, the statement would have to indicate how the Ministers intended to develop a proposed regulation or instrument for preventive or control action. Where a decision was made not to recommend the addition of a substance on the Priority Substances List to the List of Toxic Substances in Schedule 1, any person could file a notice of objection with the Minister requesting that a board of review be established under clause 333.

When publishing a statement under clause 77(6)(b) indicating that the measure they proposed to take was to add the substance to the List of Toxic Substances in Schedule 1, the Ministers would be required under clause 77(9) to make a recommendation that the Governor in Council make such an order under clause 90(1).

Clause 78(1) would permit any person to file a notice of objection with the Minister, requesting that a board of review be established under clause 333, where a substance had been on the Priority Substances List for five years without a determination of its toxicity. In a case where the Ministers were satisfied that new or additional information was required to complete an assessment of a substance, they could suspend the five-year period - a "stop-clock" provision - publishing appropriate notices, including a statement of the required information, and the period for which the suspension would be in effect. Where the Ministers had taken longer than two years after the end of the suspension period to determine toxicity, any person could file a notice of objection under clause 78(4) requesting that a mandatory board of review be established.

Under clause 79, where the Minister had published a statement in the Canada Gazette pursuant to clause 77(6), indicating that the implementation of virtual elimination under clause 65(3) was being recommended in relation to a substance, the Minister would have to require any person named in the statement to prepare a comprehensive plan, describing how the implementation of virtual elimination would be addressed and within what time period. Plans could include other information on environmental or health risks, and social, economic or technical matters. The person submitting the comprehensive plan would be required to comply with the Minister’s statement within the specified time, but the period of time specified in the statement could begin no earlier than the date on which the substance was ordered under clause 90(1) to be added to the List of Toxic Substances in Schedule 1.

Clause 80 contains two definitions that would apply to clauses 81 to 89. A "significant new activity" in respect of a substance, would be defined as including any activity that increased or might increase, in the Ministers’ opinion, the amount of that substance in the Canadian environment, or that, in the Ministers’ opinion, would significantly change the manner and circumstances through which the substance had entered the Canadian environment. A "substance" would be defined as a substance other than a living organism within the meaning of Part 6 (Animate Products of Biotechnology).

Clause 81(1) would provide that no person could manufacture or import a substance that was not specified on the Domestic Substances List unless prescribed information on the substance had been provided to the Minister, with a prescribed fee, on or before the prescribed date. Transitional provisions under clause 81(2) would apply where a person had manufactured or imported a substance not specified on the Domestic Substances List between 1 January 1987 and 30 June 1994: manufacturing or importation would not be permitted after the latter date unless, within 180 days after that date or on or before the prescribed date, the prescribed information on the substance had been provided to the Minister.

In addition to the above, under clause 81(3) a "significant new activity" with respect to a substance on the Domestic Substances List would be prohibited unless the prescribed information and fee had been provided to the Minister, in the same way as would be required for a new substance. The same requirement would apply under clause 81(4) to a significant new activity for a substance that was not on the Domestic Substances List, if the Minister published a notice in the Canada Gazette stating that this clause applied to that particular substance. Under clause 81(5), if the rights or privileges in respect of a substance for which the prescribed information had been provided were transferred to another person, that person would be deemed to have provided the information.

Under clause 81(6), none of the above provisions, except the clause respecting transfer of rights and privileges, would apply in the following circumstances: (a) where a substance was regulated under another Act of Parliament that provided for notice and assessment of toxicity or potential for toxicity (such Acts to be listed in Schedule 2); (b) to transient reaction intermediates that were not isolated and not likely to be released into the environment; (c) to impurities, contaminants and partially unreacted materials, the formation of which was related to the preparation of a substance; (d) to substances produced when a substance underwent a chemical reaction incidental to its use, or resulting from storage or from environmental factors; or (e) to a substance manufactured, used or imported in a quantity not exceeding the maximum prescribed as exempt from this clause.

Under new clause 81(7), the Governor in Council would be responsible for determining whether another Act of Parliament contained notice and assessment provisions within the meaning of clause 81(6), such as to give that enactment precedence over CEPA in relation to the substance. Where this determination was affirmative, the Governor in Council could by order add the name of the other Act (or its regulations) to Schedule 2; this would be conclusive proof that the other Act (or its regulations) satisfied the requirements in clause 81(6). The Governor in Council could also by order delete the name of an Act (or its regulations) from Schedule 2 if it determined that that Act (or its regulations) no longer met the requirements in clause 81(6).

The Minister would have the power under clause 81(8) to waive, on request, any of the requirements to provide information on a new substance or a significant new activity for a number of specified reasons; for example, if the Ministers believed that the information was not necessary to determine whether the substance was toxic or capable of becoming toxic. The Minister would be required under clause 81(9) to publish in the Canada Gazette the name of the person receiving such a waiver. Where a requirement for information had been waived, the person receiving the waiver could only use, manufacture or import the substance according to the regulations made under clause 89(1)(f) or at the location specified in the waiver request. Where information was provided to the Minister under specified clauses, the person providing it would be required under clause 81(11) to notify the Minister of any corrections to the information as soon as possible. Where the corrections pertained to information provided in relation to a request for a waiver under clause 81(8), the Minister could request that the information to which the waiver related be supplied within a specified time (clause 81(12)). If, on the basis of this information or of the corrected information provided under this clause, the Ministers suspected that a substance was toxic or capable of becoming toxic, they could take action under clause 84(1), namely, they could prohibit the importation or manufacture of the substance, permit its importation or manufacture under specified conditions, or require that additional information or test results be provided.

Clause 82(1) and (2) provide that where the Minister had reason to believe that one of the prohibitions under clauses 81(1), (3) and (4) had been contravened, he or she could, in writing, require the production of the appropriate information, and prohibit any activity involving the substance until the assessment period provided under clause 83 had expired, or until the information required under clause 81(2) had been provided. On the request of a person who had received such a notice, the Minister could waive any requirement for information, provided the conditions under clause 81(8)(a) to (c) were met; if the Minister did so, the requirements of clause 81(9) to (13) would apply to the waiver.

Clause 83 would require the Minister to assess the information provided under clauses 81, 82 or 84 on a new substance or significant new activity within a prescribed assessment period, which the Minister, where necessary, would be empowered to extend or terminate and to notify the provider of the information accordingly.

Under clause 84, after the required information had been assessed and the Ministers suspected that a substance was toxic or capable of becoming toxic, the Minister could: (a) permit manufacture or importation under specified conditions; (b) prohibit manufacture or importation; or (c) request additional information or test results for the purpose of assessing whether the substance was toxic or capable of becoming toxic. In the last case, manufacture or importation would be prohibited until the information or test results had been provided and the period for assessment, or a period of 90 days after provision of the information or test results, had expired, whichever of those two was the later. A prohibition on manufacture or importation would expire after two years unless regulations on the substance were proposed within the two-year period, in which case the prohibition would expire when the regulations came into force. The Minister could impose, rescind or vary any condition or prohibition in relation to a substance, and would have to publish a notice to that effect in the Canada Gazette.

Under clause 85, where the Ministers suspected, after assessment of information on a substance not on the Domestic Substances List, that a significant new activity might result in a substance’s becoming toxic, the Minister could, within 90 days after the expiration of the assessment period, publish a notice in the Canada Gazette (or in another manner) that clause 81(4) would apply, that is, that the substance might not be used for that activity until the required information was provided, the prescribed fee was paid and the period for assessing the substance had expired.

Where such notice was published under clause 85, clause 86 would require persons who transferred physical possession or control of a substance to another person to notify the recipient of the obligation to comply with all requirements of clause 81(4).

Clause 87 would require the Minister to add a substance to the Domestic Substances List, and delete it from the Non-domestic Substances List, under certain conditions. Such conditions would include: where information or additional information or test results were provided under clauses 81, 82 or 84(1); where the substance had been manufactured in or imported into Canada in excess of (a) 1,000 kg in any calendar year, (b) where there was an accumulated total of 5,000 kg, or (c) another prescribed quantity; where the period for assessing the information under clause 83 had expired; and where no conditions remained in effect under clause 84(1). The Minister could subsequently amend both lists in respect of the substance if, for example, a significant new activity involving the substance made such amendment and the provision of new information appropriate.

New clause 87(5) was added by the House Committee to require the Minister to add a substance to the Domestic Substances List (and delete it from the Non-Domestic Substances List, where applicable) even though the substance was imported or manufactured in amounts below the thresholds specified in clause 87(1). The Minister, however, would be required to add the substance to this List only if the prescribed conditions were met. These conditions are similar to those set out above; namely, where the information or additional information or test results were provided under clauses 81, 82 and 84(1), as well as any other prescribed information; where the period for assessing the information under clause 83 had expired; and where no conditions remained in effect under clause 84(1)(a).

Clause 88 provides that, where disclosure would result in the release of confidential business information, the explicit chemical or biological name of the substance could be withheld from publication, and another name (a "masked" name) substituted.

Clause 89 would empower the Governor in Council, on the recommendation of the Ministers, to make regulations for substances new to Canada or those involved in significant new activity. These would include regulations respecting substances and groups of substances, maximum exempt quantities, the information needed for assessment, maintenance of records, prescribed time periods, test procedures and laboratory practices, the manner of determining a "masked" name for a substance and generally carrying out the purposes of these clauses and of clause 66 (creation of the Domestic Substances List).

Clause 90 would permit the Governor in Council, on the recommendation of the Ministers, to make an order adding a substance to the List of Toxic Substances in Schedule 1, if satisfied that the substance was toxic; to delete a substance from the List of Toxic Substances in Schedule 1, if satisfied that its listing was no longer necessary; and to delete or revoke the regulations made under clause 93 in respect of the deleted substance. However, where a board of review was established under clause 333 in respect of the substance, no such orders could be made by the Governor in Council until the board’s report had been received by the Ministers.

New clause 90(1.1) was added by the House Committee. It would require the Ministers to give priority to pollution prevention actions when developing proposed regulations or other measures in relation to substances on the List of Toxic Substances in Schedule 1.

Clause 91 would set time lines and other requirements for the publication of proposals for preventive or control actions in relation to substances recommended for inclusion on the List of Toxic Substances in Schedule 1 and the implementation of virtual elimination under clause 65(3), where applicable. Publication in the Canada Gazette would be required within two years after publication of the Ministers’ statement under clause 77(6)(b) recommending that the substance be added to the List of Toxic Substances (and its virtual elimination, where applicable). Where a subsequent proposed regulation or instrument for preventive or control action was made in relation to the substance after a proposed regulation or instrument had been published within the two-year period, the more recent proposal(s) would also have to be published in the Canada Gazette (clause 91(6)). Where, in turn, a board of review was established under clause 333 in relation to the substance, the two-year period would be suspended and not recommenced until the Minister had received the board’s report (clause 91(7)).

For substances slated for virtual elimination, a proposed regulation or instrument would have to specify the dates on which the regulatory or other action would take effect (clause 91(2)). When establishing the quantity or concentration that was measurable in relation to such a substance, the Ministers would be required, for the purposes of the proposed regulation or instrument, to take into consideration information on sensitive and readily available analytical methods and any relevant information contained in the virtual elimination plans prepared under clause 79(2) (clause 91(3)).

Where the Ministers intended to recommend additional measures in relation to a substance slated for virtual elimination, they would have to describe such measures, along with a summary of their reasons, in the statement published in the Canada Gazette under clause 77(6) (clause 91(4)). Finally, clause 91(5) would require the Ministers, in determining preventive or control actions regarding a substance slated for virtual elimination, and the applicable time periods, to consider any factor they considered relevant, including information contained in virtual elimination plans under clause 79, and environmental or health risks and other relevant social, economic or technical matters.

Clause 92 would provide that a regulation or instrument respecting preventive or control actions would have to be made and published in the Canada Gazette within 18 months after the publication of the proposed regulation or instrument in clause 91, unless a material substantive change was required in the proposal. As with the board of review described in clause 91, the 18-month period would be suspended between the board’s establishment and submission of its report.

New clause 92.1, added by the House Committee, would authorize the Ministers to make regulations prescribing, in relation to a substance slated for virtual elimination, the quantity or concentration of the substance that could be released into the environment either alone or in combination with any other substance from any source or type of source. This clause reiterates in part the authority that would be provided to the Ministers under clause 65(3). Clause 65(3), however, would require the development of such regulations, while clause 92.1 would make their development discretionary.

Clause 93 would empower the Governor in Council, on the recommendation of the Ministers, to make regulations with respect to a substance specified on the List of Toxic Substances in Schedule I. The regulations could provide for, or impose requirements respecting, all aspects of the substance pertinent to carrying out the purposes of this Part of the bill, including: the quantity or concentration that might be released into the environment, and the manner or conditions under which it could be released; places or areas where it could be released; the manufacturing or other activity during which the release might occur; the quantity of the substance that could be manufactured or made available in Canada, and its purposes; the countries from or to which the substance could be imported or exported; the packaging and labelling of the substance or a product containing the substance (clause 93(1)). Before a regulation was made under this clause, the National Advisory Committee would have to be given the opportunity to advise the Ministers (clause 93(3)). Deleted by the House Committee was an additional requirement in clause 93(4) for the Minister for International Trade to be consulted before specified regulations could be made.

However, regulations could not be made with respect to any substance, or aspect of a substance, that was regulated under any other Act of Parliament and that, in the opinion of the Governor in Council, provided sufficient protection to the environment and human health (clause 93(4)). Finally, a regulation under this clause could amend the List of Toxic Substances in Schedule 1 so as to specify the type of regulation that would apply to the substance (clause 93(5)).

Where the Ministers believed that a substance not on the List of Toxic Substances was toxic or that a substance on the List was not adequately regulated, and they believed that immediate action was required to deal with a significant danger to the environment or to human life or health, clause 94 would empower the Minister to make an interim order in respect of the substance, similar to a regulation made under clause 93(1). The interim order would cease to have effect unless it was approved by the Governor in Council within 14 days. The Governor in Council could not approve such an order, however, unless the Minister, within 24 hours of making the order, had offered to consult with all affected governments to determine whether they were prepared to take the necessary action and consulted other federal ministers about whether action could be taken under any other federal statute to deal with the danger.

Where the Governor in Council approved an interim order, the Ministers would, within 90 days, be required under clause 94(5) to publish in the Canada Gazette a statement indicating whether they intended to recommend to the Governor in Council that a regulation be made in respect of the substance, and that the substance not specified on the List of Toxic Substances be added to the List. A person could not be convicted under the interim order unless notice had been published in the Canada Gazette, or the person had been notified of the interim order (clause 94(6)). The interim order would cease to have effect upon its repeal, when a regulation under clause 94(5) was made, or within two years (clause 94(7)).

Where a substance on the List of Toxic Substances in Schedule 1 was released (or was likely to be released) into the environment, in contravention of a regulation made under clauses 92.1 or 93 or an order under clause 94, any person who owned or was in charge of the substance, or had caused or contributed to the release or potential release, would be required to notify and provide a written report to an enforcement officer or other designated person (clause 95). The person would also be required to take all reasonable safety, mitigative or preventive measures, and to make a reasonable effort to notify any member of the public who might be adversely affected by the release or potential release. Also, a property owner whose property was affected by the release and who knew that the substance released was on the List of Toxic Substances, would be required under clause 95(3) to report the matter as soon as possible in the circumstances to an enforcement officer or designated person. Where the laws of a provincial or Aboriginal government had been recognized by regulation as adequate for dealing with a release, the report would have to be made to the appropriate designated person in the provincial or Aboriginal government.

In the case of an unlawful release, an enforcement officer would have the authority to require the above measures to be taken, where they had not been taken voluntarily. Enforcement officers or other authorized persons would have reasonable access to any relevant place or property, and could do such reasonable things as were necessary in the circumstances. Clause 95(8) would protect from civil or criminal liability any person, other than the responsible person according to clause 95(2), who assisted with or advised on safety, mitigative or preventive measures, unless it were established that the person had acted in bad faith.

Clause 96 would permit any person who had knowledge of a release or potential release of a substance specified in the List of Toxic Substances in Schedule 1, but who was not required to report it under the Act, to report the incident to an enforcement officer or other designated authority; in doing so, that person could request and receive confidentiality. "Whistleblower protection" would also be provided by this clause to all employees and not just those in federally-regulated employment.

Clause 97 would empower the Governor in Council to make regulations respecting the provisions of clauses 95 and 96.

Clause 98 would entitle Her Majesty in Right of Canada to recover some or all of the reasonable costs and expenses of, and incidental to, those measures taken in respect of the unlawful release of a substance into the environment from those persons required to take action under clause 95(2). This clause would not restrict the ability of one person to take a legal action against another person in respect of the unlawful release. There would be a limitation period of five years from the date when the events occurred or became evident to the Minister, whichever was later (clause 98(7)). Clause 98(8) would permit the Minister to issue a certificate indicating the date on which the release giving rise to a claim under this clause had taken place; in the absence of evidence to the contrary, the Minister’s certificate would be taken as proof of the fact.

Where an offence had been committed in relation to a substance in contravention of this Part or the regulations made under it, clause 99 would permit the Minister to direct in writing that any manufacturer or other responsible person take remedial measures in respect of the substance, or any product containing the substance, including giving public notice of the associated danger to the environment or to human health or life. The manufacturer or other responsible person could be required to replace the substance or product with a safer substance, to accept the return of the substance or product and refund the purchase price, or carry out any other measures for the protection of the environment or human life or health.

Clauses 100 to 103 were amended by the House Committee to enable Canada to adhere to the Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (known as the PIC Convention), adopted in September 1998 and developed under the auspices of the United Nations Environment Programme (UNEP) and the Food and Agriculture Organization (FAO).

New clause 100 refers to the Export Control List, set out in Schedule 3, which would consist of the following three Parts:

Clause 100 further provides that the Ministers could, by order, modify these lists either to add or to delete substances, as the case might be.

Clause 101(1) would prohibit anyone from exporting a substance on the Export Control List (all Parts), unless prior notice of the export was given to the Minister. Clause 101(4) would, however, impose a flat prohibition against the export of any substance on the Export Control List (all Parts) whose export had been specifically prohibited by a regulation made under clause 102. Clause 101(2) would prohibit the export of any substance specified in Part 1 of the Export Control List unless such export was for the purpose of destroying the substance or complying with a ministerial direction under clause 99(b)(iii) respecting measures to protect the environment or human life or health; in such cases the substance would have to be exported in accordance with the applicable regulations. Finally, clause 101(3) would prohibit the export of any substance specified in Parts 2 or 3 of the Export Control List unless such export was carried out in accordance with the applicable regulations.

Clause 102(1) sets out the types of regulations that could be made in relation to the export of substances on the Export Control List. These include regulations respecting the export information that would have to be provided to the Minister, the information that would have to accompany the export, and the conditions under which a substance could be exported. Clause 102(2) would authorize the development of regulations prohibiting the export of any substance on the Export Control List.

When a substance on the Export Control List (all Parts) was exported, the Minister would be required under clause 103 to publish in the Environmental Registry the name or specifications of the substance, the exporter’s name and the country of destination.

Clause 104 sets out two definitions that would apply in Part 6. "Living organism" would be defined as a substance that is an animate product of biotechnology. "Significant new activity" in respect of a living organism would be defined as including any activity that resulted in or might result in the entry or release of the living organism into the environment in a quantity or concentration that was significantly greater than was previously in the environment; or that entered or was released into the environment in a manner and in circumstances that differed significantly from the manner and circumstances in which the living organism had previously entered the environment; or where the environment’s exposure or potential exposure to the living organism differed significantly from what it had been.

Clause 105 would require the Minister, or other person or class of persons to add to the Domestic Substances List maintained pursuant to clause 66 any living organism that, between 1 January 1984 and 31 December 1986, had been manufactured in or imported into Canada, and had entered or been released into the environment without being subject to conditions under CEPA or any other federal or provincial/territorial law. The Minister (or other designated authority) would be required to delete these substances from the List where the requirements of this clause were no longer met. The Domestic Substances List and amendments would have to be published in the Canada Gazette.

Subject to the exceptions set out in clause 106(6), clause 106 would prohibit any person from manufacturing or importing a living organism that was not specified on the Domestic Substances List, unless the prescribed information on the living organism had been provided to the Minister, with a prescribed fee, on or before the prescribed date, and the period for assessing the information under clause 108 had expired. Transitional provisions would apply where a person had manufactured or imported a living organism not specified on the Domestic Substances List between 1 January 1987 and 30 June 1994: manufacturing or importation would not be permitted after the latter date unless, within 180 days after that date or on or before the prescribed date, the prescribed information on the living organism had been provided to the Minister.

Where there was an indication on the Domestic Substances List that this clause would apply to a living organism specified on the List, clause 106(3) would prohibit the use, manufacture or import of the organism for any significant new activity indicated on the Domestic Substances List, unless the prescribed information and fee had been provided to the Minister, and the period for assessing the information under clause 108 had expired. The same prohibition and conditions would apply to a significant new activity in relation to a living organism that was not on the Domestic Substances List, if the Minister published a notice in the Canada Gazette stating that this clause applied to that particular living organism. Information provided in respect of a new living organism would be deemed under clause 106(5) to have been provided by another person to whom the rights in respect of that living organism had been transferred.

Pursuant to clause 106(6), the above requirements would not apply in the following circumstances: (a) where a living organism was regulated under another Act of Parliament that provided for notice and assessment of toxicity or potential for toxicity (such Acts to be listed in Schedule 4); (b) to a living organism that was manufactured, used or imported under conditions and circumstances prescribed as exempt from this section; or (c) to impurities and contaminants related to the preparation of a living organism.

Pursuant to an amendment made at report stage in the House of Commons, new clause 106(7) would make the Governor in Council responsible for determining whether another Act of Parliament (or its regulations) contained notice and assessment provisions within the meaning of clause 106(6), such as would give that enactment precedence over CEPA in relation to the living organism. Where this was found to be so, the Governor in Council could by order add the name of the other Act (or its regulations) to Schedule 4; this would be conclusive proof that the latter Act (or its regulations) satisfied the requirements in clause 106(6). The Governor in Council could also by order delete the name of an Act (or its regulations) from Schedule 4 if it determined that the Act (or regulations) no longer met the requirements in clause 106(6).

Under clause 106(8), the Minister could, on request, waive any of the requirements to provide information on a living organism or on a significant new activity involving a living organism for a number of reasons: for example, if the Ministers believed that the information was not necessary to determine whether the living organism was toxic or capable of becoming toxic, or that the living organism could be satisfactorily contained. The Minister would be required to publish in the Canada Gazette the name of the person receiving the waiver and the type of information to which the waiver related. Any use, manufacture or import of the living organism, other than that specified in the regulations or the waiver, would be prohibited under clause 106(10). Notification would have to be given to the Minister of any corrections to the information provided under this clause and other specified clauses. Where notification of corrections was given in relation to information provided with a request for waiver, once both Ministers had considered the corrections, the Minister could require the information to which the waiver applied to be provided within a specified time (clause 106(12)). Where, after consideration of information provided under this clause, or of any corrections to the information, the Ministers suspected that the living organism could be toxic or capable of being toxic, action could be taken under clause 109(1), including prohibiting the manufacture or import of the living organism or allowing its manufacture or import but with conditions (clause 106(13)).

Clause 107 would empower the Minister, where he or she had reasonable grounds to believe that a person had used, manufactured or imported a living organism in contravention of clause 106, to require that person to submit appropriate information in respect of the living organism, and to prohibit any activity in relation to it until the prescribed information had been provided or, in the case of living organisms covered by the transitional period, until the 180-day period for assessment under clause 108 had expired. The Minister could, on a request from the person, waive any of the information requirements if the conditions of clause 106(8)(a) to (c) were met, in which case clauses 106(9) to (13) would apply with respect to the waiver.

Clause 108 would require the Ministers to assess the information provided on a living organism within a prescribed period. The Minister, where necessary, could extend or terminate the assessment period (clause 108(4) and 108(6)) and would be required accordingly to notify the person who had provided the information.

Clause 109(1) would permit the Minister, after the required information had been assessed and the Ministers suspected that a living organism was toxic or capable of becoming toxic, and before the expiration of the assessment period, to: (a) permit manufacture or importation under specified conditions; (b) prohibit manufacture or importation; or (c) request additional information or test results for the purpose of assessing whether the living organism was toxic or capable of becoming toxic. In the last case, manufacture or importation would be prohibited under clause 109(2) unless the additional information or test results were submitted or the period for assessment under section 108 expired, or until the expiry of a period of 120 days after the additional information or test results had been submitted, whichever was the later. In the first two cases, however, the Minister would have broad authority to vary or rescind any condition or prohibition imposed (clause 109(3)). A prohibition on manufacture or importation would expire after two years unless, within two years, proposed regulations on the living organism were published in the Canada Gazette, in which case the prohibition would expire when the regulations came into force (clause 109(4)). Where the Minister had imposed, rescinded or varied any condition for or prohibition on the manufacture or import of a living organism, clause 109(5) would require publication of a notice to that effect in the Canada Gazette.

Clause 110 would provide that where, after assessment of information under section 108 on a living organism not on the Domestic Substances List, the Ministers suspected that a significant new activity might result in a living organism becoming toxic, the Minister would be empowered, within 90 days after the expiration of the period for assessing the information, to publish in the Canada Gazette, or in another manner, a notice that subsection 106(4) (prohibition of the use of a living organism for a significant new activity indicated in the notice) applied and the living organism could not be used for that activity unless the prescribed information was provided, the prescribed fee was paid and the period for assessing the information had expired. However, under clause 110(2), the Minister would be empowered, by notice published in the Canada Gazette, to vary the significant new activities respecting the living organism for which notice had been given under clause 110(1), or indicate that clause 106(4) no longer applied to that living organism. Clause 110(3) sets out the contents of a notice issued under either clause 110(1) or (2).

Where a notice was published in the Canada Gazette under clause 110(1) (significant new activity that resulted in the living organism’s becoming toxic), clause 111 would require persons who transferred physical possession or control of a living organism to another person to notify that person of the obligation to comply with all requirements of subsection 106(4).

Clause 112 would require the Minister to add a living organism to the Domestic Substances List within 120 days after: he or she had been provided with information in respect of the living organism under clause 106 or 107 and with additional information or test results under subsection 109(1); the living organism had been manufactured in or imported into Canada by the person who provided the prescribed information; the period for assessing the information under clause 108 had expired and no conditions specified for the manufacture or import of the living organism under clause 109(1)(a) remained in effect. The Minister also would be empowered to amend the Domestic Substances List by deleting a living organism, where it was subsequently learned that the living organism had not been manufactured or imported into Canada; to specify whether clause 106(3) applied or continued to apply to the organism (prohibition respecting specified significant new activities in relation to a living organism unless conditions were satisfied); or to vary the significant new activities to which that clause would apply. Clause 112(4) sets out the required contents of any amendment made to the Domestic Substances List in the last two instances.

Clause 113 would require that the explicit biological name of a living organism be withheld from publication, and another name (a "masked name") substituted, if disclosure would result in the release of confidential business information in contravention of clause 314. The latter clause would prohibit the Minister from releasing information for which a request of confidentiality had been made, except in certain circumstances.

Clause 114 would empower the Governor in Council, on the recommendation of the Ministers, to make regulations in relation to living organisms. These could, among other things, include: regulations respecting living organisms and groups of living organisms for the purposes of clauses 106 and 107, including those that were exotic or indigenous, research and development living organisms, and living organisms manufactured only for export, and designating ecozones or groups of ecozones; regulations prescribing the purpose for which a living organism might be used; regulations respecting the conditions, test procedures and laboratory practices to be followed in respect of living organisms; and regulations generally for carrying out the purposes and provisions of this Part of CEPA. Under clause 114(2), the assessment period for the purposes of section 106 and 108, where not otherwise prescribed, would be 120 days after the Minister was provided with the prescribed information.

Clause 115(1) would further empower the Governor in Council, on the recommendation of the Ministers, to make regulations for implementing an international agreement respecting living organisms, and respecting their effective and safe use in pollution prevention. Clause 115(2), however, would prevent the Governor in Council from making such regulation(s) where the same aspect of any living organism was regulated by or under any other Act of Parliament in a manner that, in the opinion of the Governor in Council, provided sufficient protection to the environment and human health.

Clause 116 would establish three definitions to apply in this Division and in Part 10 (enforcement):

Clause 117 would prohibit the manufacture for use or sale in Canada, or import of, a cleaning product or water conditioner that contained a prescribed nutrient in a concentration greater than the permissible concentration prescribed for that product.

Subject to the limitation under clause 118(2), clause 118(1) would empower the Governor in Council, on the recommendation of the Minister, to make regulations to prevent or reduce the growth of aquatic vegetation caused by the release in waters of nutrients and that could interfere with, degrade or alter an ecosystem to an extent that was detrimental to its use by humans, animals or plants, including regulations

Clause 119 would empower the Minister, where there had been a contravention of clause 117 (prohibited activities) or the regulations, to direct a manufacturer or importer of a nutrient, cleaning product or water conditioner, in writing, to take any or all of a number of remedial measures, including

Where the person failed to take the prescribed remedial measures, clause 119(2) would empower the Minister to take those measures or to cause them to be taken. Further, clause 119(3) would empower Her Majesty in right of Canada to recover costs and expenses from the person, incidental to taking any of the measures described.

Clause 120 would establish two definitions for the purposes of this Division: "land-based sources" and "marine pollution." Clause 121 would empower the Minister, to issue environmental objectives and release guidelines and codes of practice to prevent and reduce marine pollution from land-based sources. Before doing so, the Minister would have to consult any other affected Minister. He or she would also be required to offer to consult with the provincial/territorial government(s) and members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Minister could issue the objectives, guidelines or codes of practice 60 days after the offer to consult had been made. In addition, the Minister could consult (discretionary) with any government department or agency, or other interested parties. He or she could also organize conferences, and meet with the representatives of international organizations and other countries to examine the rules, standards, practices and procedures recommended under the United Nations Convention on the Law of the Sea.

A new definition of "disposal" would broaden the existing concept of "dumping" (as used in Part VI of the current CEPA) to include the deliberate disposal of dredged material from any source; storage of a substance on the seabed or the ice; and the deliberate disposal at sea of a ship, aircraft, platform or other structure.

A new definition of "waste or other matter" would comprise all matter listed in Schedule 5, which would include: dredged material; fish or other organic waste from fish processing; ships, aircraft, platforms or other structures, once all material that could create floating debris had been removed, provided these substances would not pose a serious obstacle to fishing or navigation; inert, inorganic geological matter (such as sand or rock); uncontaminated organic matter; and bulky metal or concrete substances that did not have a significant adverse effect, other than a physical effect, on the sea or seabed, provided disposal at sea was the only practicable manner of disposing of them and they would not pose a serious obstacle to fishing or navigation.

This clause would prohibit anyone from importing a substance for disposal in an area of the sea under Canadian jurisdiction, and from exporting a substance for disposal in the sea under the jurisdiction of a foreign state or in its internal waters.

This clause would restrict permissible loading of substances in Canada for the purpose of disposal at sea to substances that were "waste or other matter," as defined above, or loading done in accordance with a Canadian permit. Masters of Canadian ships or pilots of Canadian aircraft would be prohibited from permitting the loading, outside Canada, of any other substance for the purpose of disposal at sea, unless the disposal was to take place in an area of the sea under the jurisdiction of a foreign state, and the loading and disposal were to be done in accordance with a permit under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter or under the Protocol to that Convention, or under a Canadian permit if the foreign state was not a contracting party.

This clause would prohibit disposal in the area of the sea in and around Canada, and outside the jurisdiction of any state, unless the substance disposed of was "waste or other matter," or the disposal was done in accordance with a Canadian permit. Disposal from a Canadian ship, aircraft, platform or other structure in a part of the sea outside any state’s jurisdiction would be permitted only if the substance was waste or other matter, or the disposal was done in accordance with a Canadian permit or permit issued under the Convention or Protocol by another state. In an area of the sea under the jurisdiction of a foreign state, that state would have to authorize the disposal, unless the substance consisted of "waste or other matter." Similar permit requirements would apply to the disposal of a Canadian ship, aircraft, platform or other structure.

This clause would prohibit the incineration on board a ship, platform or other structure, of a substance other than "waste" generated on board during normal operations, unless the incineration was done in accordance with the appropriate permit.

Clause 127 would allow the Minister to issue permits authorizing the loading for disposal and the disposal of waste or other matter. An application for such a permit would have to be in the prescribed form and include the prescribed fee and proof of publication of notice of the application. It would have to contain information required for the purpose of complying with Schedule 6, which sets out a series of issues with respect to the appropriateness of disposal at sea, and alternatives to it, such as waste prevention at source. The Minister would have to comply with the requirements of Schedule 6 before issuing a permit.

Clause 128 would provide an exception to the prohibitions against disposal at sea or incineration in clauses 125 and 126, in that a permit could be issued under this clause where the disposal or incineration was necessary to avert an emergency that posed an unacceptable risk to the environment or human health and there was no other feasible solution. An application for such a permit would have to contain information related to the issues specified in Schedule 6, and include proof of publication. Before issuing such a permit, the Minister would be required to offer to consult with any foreign state that was likely to be affected, and with the International Marine Organization (IMO), to endeavour to follow any recommendations from the IMO, and to inform the IMO of any action taken under the clause.

Clause 129 sets out a series of conditions that would have to be included in a permit if the Minister considered it necessary in the interests of marine life, any legitimate uses of the sea, or human life. The conditions would be similar to those in place in section 72(2) of the current CEPA, with the addition of a provision for the monitoring of the disposal, the incineration and the disposal site to determine the effects of the disposal on the environment and human life. Conditions could be varied by the Minister, and permits could be suspended or revoked if the Minister considered it advisable.

Clause 130(1) would make an exception to the permit requirements of this Division in that it would permit the emergency disposal of a substance if the disposal was necessary to avert a danger to human life or a ship, platform or other structure due to stress of weather or other cause; if the disposal seemed to be the only way of averting the danger or threat; and if the damage caused by the disposal would probably be less than would otherwise occur. Disposal would have to minimize danger to human life and damage to the marine environment. This exception, however, could not be relied upon if the danger had been caused or contributed to by the person’s negligent act or omission. Disposal under this clause would have to be reported to an enforcement officer or other designated authority without delay.

Clause 131 would make section 36(3) of the Fisheries Act inapplicable to a disposal carried out in accordance with a Canadian permit or the above-noted exception under clause 130. Section 36(3) prohibits the deposit of substances deleterious to fish in waters frequented by them.

Clause 132 would require the Minister to monitor disposal and incineration sites selected for that purpose. Clause 133 would require the Minister to publish permits issued, and conditions or varied conditions, in the Canada Gazette, either as soon as possible after an emergency disposal, or at least 30 days before the first date on which the loading, disposal or incineration was authorized to take place, in all other cases. Where a permit had been issued or refused, suspended, revoked or varied, clause 134 would permit any person (and not just the applicant or permit holder) to file a notice of objection within 30 days requesting the establishment of a board of review under clause 333.

The regulations that the Governor in Council would be empowered to make under this clause would be similar to those set out in section 86 of the current Act, with the addition of a power to make regulations respecting the monitoring of disposal sites. This clause would also empower the Governor in Council, on the recommendation of the Minister, to amend Schedules 5 and 6 by order.

Clause 136, like section 77 of the current Act, would allow the federal government to recover reasonable legal costs and other expenses against persons who committed offences under this Division. Clause 137 would govern the service of documents in actions under this Division.

Clause 138 would define "national fuels mark" in this Division to mean a mark established by regulation for use in respect of fuels. A definition of "engine" was added by the House Committee to mean "a device that transforms one form of energy into another."

Clause 139(1) would prohibit the production, import or sale of a fuel that did not meet the requirements of the regulations. Exceptions to this prohibition, set out under clause 139(2), would include: a fuel in transit through Canada; a fuel produced or sold for export; a fuel that was imported and would meet the requirements of the regulations; or, subject to the regulations, a fuel that was being imported in a fuel tank that supplied the engine of a conveyance used for transportation by water, land or air.

Clause 140 would empower the Governor in Council to make regulations on the recommendation of the Minister for carrying out the purposes of clause 139, including regulations respecting: the physical and chemical characteristics, concentrations and properties of the fuel or of any component or additive of the fuel; transfer and handling; the submission of information on various aspects regarding the fuel, including adverse effects from the use of the fuel on the environment, on human life or health, on combustion technology or on emission control equipment; the conduct and conditions of sampling, testing and measurements, etc.; and the submission of samples.

Clause 140(2) would provide that specified regulations could be made if the Governor in Council was of the opinion that they could make a significant contribution to the prevention of, or reduction in, air pollution resulting from

Clause 140(3) would permit a regulation to distinguish among fuels on the basis of their commercial designation, source, properties, class, conditions of use or place or time or year of use.

Before any regulations could be made under clause 140, the Minister would be required under clause 140(4) to offer to consult with the provincial/territorial governments and the members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Minister could recommend that such regulations be made 60 days after the offer to consult had been made (clause 140(5)). He or she could also consult (discretionary) with other government departments or agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties (clause 140(4)).

Under clause 141 national fuels marks would be national trade-marks, and the exclusive property in and, except as otherwise provided in this Division, the right to use them would be vested in Her Majesty in right of Canada.

Clause 142 would prohibit the use of a national fuels mark except in accordance with this Division and the regulations, and the use of any other mark in such a manner that it was likely to be mistaken for a national fuels mark.

Clause 143 would permit a person to use a national fuels mark in respect of a prescribed fuel under certain circumstances, including where that person was so authorized by the Minister, where the fuel conformed to the prescribed requirements for that fuel under the conditions outlined in the regulations, and the prescribed information had been submitted to the Minister.

Clause 144(1) would prohibit the import or transport within Canada of a prescribed fuel unless the conditions set out in clause 143(b) to (d) were met. However, except as otherwise provided in the regulations, this prohibition would not apply where the requirements were met before the fuel was used or sold, or the fuel was being used in a fuel tank to supply the engine of a conveyance for transportation.

Clause 145 would empower the Governor in Council, on the recommendation of the Minister, to make regulations for carrying out the purposes of clauses 141 to 144 and 147, including regulations:

Before a regulation could be made under this clause, the Minister would have to offer to consult with the provincial/territorial government(s) and members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Minister could recommend that a regulation be made 60 days after the offer to consult had been made. He or she could also consult (discretionary) departments and agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties.

Clause 146 would permit a regulation to distinguish among fuels according to their commercial designation, source, chemical and physical properties, class, conditions of use or place or time or year of use.

Clause 147 would empower the Minister to grant, in prescribed circumstances, a temporary waiver from any of the requirements of a regulation made in relation to national fuel marks under clause 140 or 145.

Clause 148(1) would empower the Minister to direct a producer, processor, importer, retailer or distributor of a fuel to take any or all of a variety of remedial measures if there was a contravention of this Division or any regulation made under this Division, including:

Where a person failed to take the required measures, clause 148(2) would empower the Minister to take the necessary measures or cause them to be taken. Clause 148(3) would empower Her Majesty in right of Canada to recover from a person those costs and expenses associated with any remedial measures carried out by the government.

(Note: this Division would be transferred, with certain changes, from the Motor Vehicle Safety Act (MVMA), which is administered by Transport Canada.)

Clause 149 contains definitions that would apply in this Division and also in Part 10 to the extent that it related to the enforcement of this Division.

(Note: The term "national emissions mark" would be new to CEPA. In the MVMA, the term "national safety mark" is used and includes emissions standards.)

Under clause 150(1), national emissions marks would be national trade-marks. Clause 150(2) would provide that the exclusive property in and, except as otherwise provided in this Division, the right to use a national emissions mark would be vested in Her Majesty in right of Canada. No person would be able to use a national emissions mark except in accordance with this Division and the regulations, or to use any other mark in such a manner that it could be mistaken for a national emissions mark.

Clause 151 would provide that a company authorized to do so by the Minister, subject to this Division and the regulations, could apply a national emissions mark to vehicles, engines or equipment.

Clause 152 would prohibit any company from transporting within Canada a prescribed vehicle, engine or equipment that did not have a national emissions mark.

(Note: In the MVMA, the comparable sections (sections 5-7) are grouped under the heading "Vehicle and Equipment Standards.")

Subject to the exception under clause 153(2), clause 153(1) would list seven criteria to which companies would have to adhere in order to apply a national emissions mark to any vehicle, engine or equipment for sale or importation, including the submission of prescribed information to the Minister relating to standards for emissions from the vehicle, engine or equipment. Also, in the case of engines or equipment, the company would have to maintain a prescribed registration system. A vehicle, engine or equipment from a foreign country would be deemed under clause 153(3) to conform to a prescribed standard where the regulations provided that an enactment of a foreign government corresponded to that standard, and where a prescribed agency of that government had certified that the vehicle, engine or equipment conformed to the enactment as applied by the agency, unless the Minister determined otherwise.

Clause 154 would prohibit the import of any vehicle, engine or equipment of a prescribed class unless in accordance with the requirements of clause 153(1)(a), (b), (d) and (e).

Clause 155(1) would create exceptions for certain importations of vehicles, engines or equipment, including those used for exhibition, demonstration, evaluation or testing; those in transit through Canada (not to be used or sold in Canada); and those imported exclusively for use by a visitor to Canada or by a person passing through Canada to another country. Except as otherwise provided in the regulations, clause 155(2) would exempt the importation of vehicles sold at the retail level in the United States from the requirements of clauses 153 and 154 if, prior to the vehicle’s registration in Canada, the person importing declared that the requirements of those clauses would be met and that the vehicle would be certified as conforming, in accordance with the regulations. Clause 155(3) would also set out an exception in relation to an imported vehicle, engine or equipment where standards had changed since manufacture, or for which no corresponding standard had been set. Clause 155(4) provides that where there was no applicable prescribed standard, an imported vehicle or engine would have to conform to the standard prescribed for the class of equivalent vehicles or engines before being presented for registration in Canada. Clause 155(5) would require compliance with any declaration made for the purposes of this clause, and clause 155(6) would require any person who made a declaration to keep a record of the use or disposition of the vehicle, engine or equipment in accordance with the regulations.

(Note: In the MVMA, the comparable section (section 9) is headed "Vehicle Exemptions.")

Clause 156(1) would empower the Governor in Council to grant exemptions from the standards for a specified period, upon application by a company, if in the opinion of the Governor in Council:

Clause 156(3) and (4) sets out conditions under which an exemption could not be granted, while clause 156(5) stipulates that a new exemption could be granted on the expiry of the previous one.

(Note: In the MVMA, the comparable section (section 10) is headed "Notice of Safety Defects.")

Under clause 157(1), a company would be obliged to give notice to the Minister of any defect in the design, construction or functioning of the vehicle, engine or equipment that affected or was likely to affect its compliance with a prescribed standard. Owners of the vehicle, engine or equipment would also have to be notified by the company; clause 157(2) outlines procedures for determining the current owners for the purposes of subclause (1). Where the company could not reasonably identify the owners, the Minister could require publication of a notice in major daily newspapers in six regions of Canada, or by dissemination in an alternative medium. The Minister could also order that notice not be given. Upon receipt of notice of a defect under subclause (1), the Minister would have to notify the person responsible for vehicle or engine administration in each provincial, territorial or Aboriginal government. Follow-up reports would be required on the defect and its correction, for a period of two years, unless the Minister directed otherwise.

(Note: In the MVMA, the comparable sections (sections 20-21) are under the heading "Research, Testing and Fees"; the reference to "fees" would not be included in CEPA.)

Clause 158 would empower the Minister to: conduct research; undertake research and development programs for the study of the effect of vehicles, engines or equipment or emissions on air pollution, energy conservation and the environment, and for the promotion of control measures; establish and operate appropriate testing facilities for that purpose; make such facilities available to any person; and publish or otherwise disseminate relevant information.

Subject to payment by the Minister of appropriate transportation and rental costs, clause 159 would empower the Minister to request that a company make available for testing any vehicle, engine or equipment or component that the company had used in tests to provide the Minister with the prescribed information, or the equivalent thereof. In testing the vehicle, engine or equipment or component, the Minister could examine and dismantle the vehicle, engine or equipment or component. Except where proceedings in respect of an offence related to the vehicle, engine or equipment or component had been instituted, the vehicle, engine or equipment or component could not be detained for more than 30 days after completion of the tests.

Clause 160 would empower the Governor in Council, on the recommendation of the Minister, to make regulations for carrying out the purposes and provisions of this Division, including regulations respecting: emissions and emission standards; national emissions marks; conditions that would have to be met for a national emissions mark to be used; the manner of applying national emissions marks; record-keeping requirements; exemptions from specified clauses; and the submission of information. Regulations prescribing a standard could be progressively applied; i.e. they could be applied first to a specified proportion of the vehicles, engines or equipment in a class, and subsequently to all in that class.

Clause 161(1) would define a "technical standards document" to mean one that reproduced an enactment of a foreign government with adaptations of form and reference to facilitate the incorporation of the enactment under this clause; the document could be incorporated by reference into regulations. Clause 161(3) would provide that compliance with a provision of a technical standards document incorporated by the regulations would not be required until six months after publication of the provision, if the person continued to comply with the provision for which that provision had been substituted. The clause would also provide that a technical standards document was not a regulation for the purposes of the Statutory Instruments Act.

Clause 162(1) would provide that regulations prescribing emission standards could provide for a system of emission credits that companies could apply against emissions of their vehicles, engines or equipment. Credits could be obtained by reference to vehicles, engines or equipment that exceeded standards requirements, or by payment of an amount to the Receiver General at a prescribed rate in relation to emissions. Emission credits could be transferred to or from a company in a prescribed manner. Under clause 162(2), regulations under subclause (1) could deem any vehicle, engine or equipment to be in conformity with a standard, if the application of those regulations to all the products in that class sold in Canada and the United States would bring that product into conformity. Companies would be required under clause 162(3) to report on emission credits obtained or applied.

Clause 163 would empower the Minister to issue an interim order to suspend or modify the operation of the regulations if an enactment of a foreign government corresponded to the regulations and that enactment was amended by that government or its operation was affected by a decision of a foreign court. The interim order would cease to have effect after 14 days unless approved by the Governor in Council within that period. No person could be convicted for contravention of a regulation modified by an order that had not been published in the Canada Gazette, unless the person had been notified of the interim order. The interim order would cease to have effect on the earliest of: the day it was repealed; the day the regulation was amended or repealed to give effect to the order; and one year after the order was made.

For the purposes of a prosecution, under clause 164 evidence that any vehicle, engine or equipment bore a name or mark purporting to be the name or mark of a company engaged in manufacturing, importing or selling such items would, in the absence of evidence to the contrary, be proof that the vehicle, engine or equipment was manufactured, imported or sold, (as the case might be) by the company.

Clause 165 would provide that evidence that any vehicle, engine or equipment bearing a national emissions mark had been manufactured by a company would, in the absence of evidence to the contrary, be proof that the national emissions mark had been applied by the company.

Clause 166(1) would empower the Minister to act to regulate air pollution, only if the Ministers of Environment and Health had reason to believe that a substance released into the air in Canada had created or might reasonably be anticipated to contribute to air pollution in another country, or air pollution that would or was likely to violate an international agreement binding on Canada in relation to the prevention, control or correction of pollution. The subsequent subclauses would require the Minister to consult with the government responsible for the area in which the source of the pollution was situated, and offer that government an opportunity to prevent, control or correct the air pollution under its own laws. Only if that government could not or did not do so would the Minister be required under clause 166(3) to either recommend regulations to the Governor in Council for the purpose of dealing with the pollution or, on approval of the Governor in Council, require that the person responsible for the air pollution prepare and implement a pollution prevention plan pursuant to clause 56(1). The Minister, however, would not be required to take action if the country affected was one with which Canada did not have substantially the same rights with respect to the prevention, control or correction of air pollution. Clause 166(5) would require the Minister to consider a number of other factors when recommending regulatory action under clause 166(3).

The consultative process proposed under clause 166 would be similar to the current process under section 61 of the Act; however, the new provision would clarify the process by which another government would have to be notified and asked to take action before federal action could be taken.

Clause 167 sets out the types of regulations that the Governor in Council could make on the recommendation of the Minister to prevent, control or correct international air pollution, including regulations on the quantity or concentration of a substance released into the air and the manner and conditions under which the substance might be released into the air, either alone or in combination with any other substance.

This clause would require the Minister, before a regulation under clause 167 was published, to advise the government of another country that would be affected by or benefit from that regulation. Any person could file comments on or a notice of objection to a proposed regulation within 60 days of its publication, and the Minister would be required to publish a summary of the action taken in response to such comments or notices, or give notice of the summary’s availability.

Clause 169 would deal with the steps that would be required in response to releases or likely releases of substances into the air in contravention of a regulation made under clause 167. The person responsible for the substance, whether the owner or the person who had caused the release, would be required to notify an enforcement officer or other designated authority and to provide a written report, to take all reasonable safety measures, and to notify any member of the public likely to be affected by the release. Any other person whose property was affected would be required to report the matter to an enforcement officer or other designated authority as soon as possible. If the Governor in Council had declared by regulation that a provincial, territorial or Aboriginal government’s law was adequate for dealing with a release, then the reports required under this clause would have to be made to the appropriate authority designated by that government. If the responsible person had failed to take the required safety measures, an enforcement officer would be permitted to take them or to direct the responsible person to do so. The enforcement officer would be empowered to enter the premises and do whatever reasonable things were necessary in the circumstances, and would be protected from liability stemming from the good faith measures taken under this clause.

This clause would allow the federal government to recover, from the owner or person responsible for the release, the reasonable costs and expenses of measures taken by an enforcement officer under clause 169(5). A limitation period of five years and several other technical requirements respecting such claims are also proposed by this clause.

Clause 171 would prohibit any person from carrying on a work, undertaking or activity that resulted in the release of a substance in contravention of a regulation made under clause 167. Clause 172 would set out substantially the same requirements as exist in section 65 of the current Act for providing the Minister with plans, specifications or other information related to works or undertakings that resulted or might result in the release of substances creating (or potentially creating) air pollution. Before making such a request, however, the Minister would have to try to obtain the requisite material or information from the government responsible for the area in which the person was situated.

Under this provision, the Minister could, prior to consultation with another government, make an interim order to prevent, control or correct the release of a substance that might cause international air pollution where the substance was not already adequately regulated and where immediate action was required to deal with a significant danger to the environment, to human life or to health.

Interim orders under this clause would expire after 14 days unless they were approved by the Governor in Council. Such approval could not be given unless the Minister had offered, within 24 hours of making the order, to ask all affected governments whether they were prepared to take action, and all other federal ministers whether they could take action under any other federal statute. When the Governor in Council approved an interim order, the Minister would be required within 90 days to comply with clause 166, by consulting other governments and so on. A person could not be convicted of the offence of contravening an interim order that had not been published in the Canada Gazette, unless the person had been notified of it. Interim orders would expire either within two years, when they were repealed, or when regulations had been made under clause 166, whichever came first.

Clause 174 would require the Minister to include a report on the administration of this Division in the annual report required under clause 342.

This clause would set out a definition of "water pollution" for the purposes of this Division. "Water pollution" would be defined as a condition of water arising wholly or partly from the presence in water of any substance that directly or indirectly endangered the health, safety or welfare of humans, or the health of animal life; interfered with the normal enjoyment of life or property; caused damage to plant life or to property; or degraded or altered an ecosystem to an extent that was detrimental to its use by humans, animals or plants.

Division 7 would create a new power to deal with international water pollution, in the same fashion as international air pollution would be dealt with in Division 6. Clauses 175 to 184 are virtually identical to clauses 165 to 174 (Division 6), except that they refer to water pollution rather than air pollution.

Clauses 176 and 177 would empower the Minister to act, after consultation, if there was reason to believe that a substance released into the water in Canada would cause or might cause water pollution in another country, or water pollution that would or was likely to violate an international agreement.

The Minister would be subject to notice and publication requirements under clause 178. Under clause 179, releases in contravention of a regulation under clause 177 would have to be reported, and remedial or safety measures would have to be taken. Any costs incurred by an enforcement officer for taking such remedial or safety measures could be recovered from the owner or other person responsible for the release of the substance into water under clause 180.

Clauses 181 and 182 would prohibit any person from carrying on a work, undertaking or activity that resulted in the release of a substance in contravention of a regulation under clause 177, and would require persons involved in a project that resulted or might result in the creation of projects that might cause water pollution to provide relevant plans, specifications and other information to the Minister, unless the Minister was able to obtain the material or information from that person’s government (provincial/territorial/ Aboriginal).

Clause 183 would allow the Minister to make an interim order to prevent, control or correct the release of a substance that might cause international water pollution in advance of the usual consultation, in emergency circumstances. The conditions related to this power would be identical to those proposed in the context of international air pollution under clause 173.

Clause 184 would require the Minister to include a report on the administration of this Division in the annual report required under clause 342.

Clause 185 would require anyone seeking to import, export or transport a hazardous waste or hazardous recyclable material, or a prescribed non-hazardous waste for final disposal, to pay a fee and obtain a permit. The Minister could refuse to issue a permit if he or she was of the opinion that the waste or material would not be managed in a manner that would protect the environment and human health against adverse effects. Before doing so, however, the Minister would be required to consult with the government of the jurisdiction for which the shipment was destined.

Clause 186(1) would permit the Minister to prohibit, completely, partially or subject to conditions, the movement (whether import, export or transit) of waste or recyclable material referred to in clause 185, for the purpose of implementing international environmental agreements, with the approval of the Governor in Council and taking into account Canada’s international obligations. Clause 186(2) would prohibit the abandonment of any waste or recyclable material that was being moved in accordance with a permit issued under clause 185(1).

This clause would require the Minister to publish in the Canada Gazette the name and specifications of waste and materials being moved under clause 185(1), as well as other prescribed information.

Clause 188 would allow the Minister to require an exporter of hazardous waste or prescribed non-hazardous waste for final disposal to submit a plan for reducing or phasing out such export in accordance with the regulations, to implement that plan and to file a declaration every 30 days with respect to the plan’s implementation, until its completion. Non-compliance might result in the Minister’s refusal of future permits to the exporter.

Clause 189 would prohibit the movement within Canada of hazardous waste or hazardous recyclable material other than in accordance with this Division and the regulations, and subject to payment of the prescribed fee.

This clause would allow the Minister to issue a permit authorizing an activity that did not comply with this Division, if the Minister was satisfied that the activity would be conducted with equivalent environmental safety and in the case of the import, export or transit of specified waste or material, that the activity would be consistent with any international environmental agreements that might apply. A copy of each permit issued under this clause would have to be published in the Canada Gazette. A permit could be revoked under several circumstances, however, including non-compliance with the conditions of the permit.

This clause would permit the making of regulations for various purposes under this Division, including regulations defining words and expressions used in the Division; establishing a classification system for waste and material; and setting out conditions governing the movement of hazardous waste and recyclable material. Clause 192 would allow the Minister to establish forms for use under this Division.

The proposed definitions of "environmental emergency" and "substance," set out in clause 193, would apply to this Part. Clause 194 would provide that the powers and duties conferred in this Part would apply only to those aspects of an environmental emergency that had or might have an immediate or long-term harmful effect on the environment; that constituted or might constitute a danger to the environment on which human life depended; or that constituted or might constitute a danger in Canada to human life or health.

Clause 195 would permit the Minister to conduct research related to the causes and effects of, and remedial measures for, environmental emergencies. Under clause 196, the Minister would be able to issue guidelines and codes of practice relating to environmental emergencies, including measures respecting prevention, preparedness, response and recovery. In developing guidelines and codes of practice, however, the Minister would have to offer to consult the provincial/territorial government(s) and the members of the National Advisory Committee representing Aboriginal governments. Unless the offer to consult was accepted, the Minister could take the prescribed action 60 days after the offer was made. The Minister could also consult (discretionary) with other government departments and agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties (clause 197). Clause 198 would require the Minister to publish any guidelines and codes of practice issued or give notice of their availability. Under clause 199, the Minister could publish a notice requiring any person or class of persons to prepare or implement an environmental emergency plan covering prevention, preparedness, response or recovery in relation to a substance included in the List of Toxic Substances in Schedule 1 or a substance that the Ministers had, under clause 77(6)(b), recommended for inclusion on the List of Toxic Substances in Schedule 1, but that had not yet been so included by the Governor in Council under clause 90(1). Clause 199 also sets out the various elements that would be required in the environmental emergency plan.

This clause would permit the Governor in Council to make regulations respecting environmental emergencies, on the advice of the Minister and after the National Advisory Committee had had an opportunity to give advice to the Minister in accordance with clause 6. The regulations could establish a list of substances that, if released, would cause an environmental emergency sufficient to invoke the application of this Part; identify the locations in Canada of the listed substances; require notification to the Minister of those locations; deal with prevention, preparedness, response and recovery; and deal with notification and reporting of environmental emergencies and safety measures and the implementation of international agreements related to environmental emergencies. Such regulations could not be made, however, if the Governor in Council determined that the matter was regulated under another federal statute that contained provisions similar in effect to those set out in clauses 194 to 205 and that provided sufficient protection to human health and the environment or its biological diversity.

This clause would require the owner of a substance or a person who caused an environmental emergency to report it to an enforcement officer or other designated authority; to take all reasonable emergency safety measures; and to notify any member of the public who might be adversely affected. A person whose property was affected by an environmental emergency would also be required to report the emergency as soon as was possible in the circumstances. Where there was failure to report, an enforcement officer could take emergency measures, and to do so, could have access to any place or property.

A person who knew about an environmental emergency, but who was not otherwise required to report it, could do so under clause 202. Under this clause, the identity of such persons could be protected at their request. Employees who "blew the whistle" would also be protected from reprisal in the workplace.

In cases of environmental emergency, the federal government would be able to recover the reasonable costs of safety measures taken by an enforcement officer under clause 201(4) from the owner or other person in charge of the substance, or from the person who had caused or contributed to the emergency (clause 203). A series of technical provisions would govern the conduct of actions for the recovery of costs. A five-year limitation period would apply to such claims, beginning on the date of occurrence or the date on which the Minister became aware of it, whichever was later.

Clause 204 would permit the Minister to establish a national system for the notification and reporting of environmental emergencies, in cooperation with provincial, territorial and Aboriginal governments.

Under clause 205, the owner or person who had charge of a substance immediately before an environmental emergency would be liable for restoring any part of the environment damaged by or during the emergency and for the reasonable costs and expenses incurred by any public authority or the Minister in preventing, repairing, remedying or minimizing the damage.

Liability under this clause would not depend on proof of fault or negligence, but would be strict liability subject to certain defences.

Part 9 would apply exclusively to the "federal house," that is, the following federal entities and matters designated under clause 207: departments, boards and agencies of the Government of Canada; federal works and undertakings; Aboriginal land, federal land, persons on that land and other persons in so far as their activities involved that land; and Crown corporations as defined in section 83(1) of the Financial Administration Act.

Clause 207(2) stipulates that this Part would not restrict any powers exercised in relation to air and all layers of the atmosphere above federal and Aboriginal land, which had been prescribed under the Aeronautics Act or other federal statute with respect to aeronautics or air transportation, or under the National Defence Act or other federal statute with respect to national defence and security.

This clause would revise the Minister’s authority under current section 53 of the Act by requiring that he or she develop environmental objectives, guidelines and codes of practice for the "federal house." At present, such authority is discretionary only and it extends only to the development of guidelines and not of objectives and codes of practice. The clause would also eliminate the current requirement that the approval of the Governor in Council be obtained for the development of such instruments. However, where a proposed objective, guideline or code of practice was to apply to a territory or Aboriginal lands under the jurisdiction of an Aboriginal government, the Minister would be required to offer to consult with the relevant territorial governments and the relevant Aboriginal representative the National Advisory Committee. Unless the offer to consult was accepted, the Minister could take the prescribed action 60 days after the offer to consult was made. The Minister might also consult (discretionary) with other federal departments, boards, agencies and Crown corporations.

Clause 209 would revise the Governor in Council’s current authority under section 54 of the Act to develop environmental regulations applicable to the "federal house." In contrast to existing section 54, the development of such regulations could be made solely on the recommendation of the Minister of the Environment and would not require the concurrence of the affected Minister. Regulations could also be made in relation to a much broader range of matters, including the establishment of environmental management systems and pollution prevention plans.

As regards the development of regulations affecting the territories or Aboriginal lands under the jurisdiction of an Aboriginal government, the Minister would be subject to the same condition that would apply to the development of objectives, guidelines and codes of conduct: an offer to consult the relevant territorial and Aboriginal government(s) would have to be made beforehand and the Minister could take the prescribed action only if, after 60 days of its having been made, the offer to consult was not accepted. Federal departments, boards, agencies and Crown corporations could also be consulted on a discretionary basis.

Clause 210 would suspend the application of any regulations developed under this Part if, in the opinion of the Governor in Council, they dealt with the same matters dealt with under provisions in force under another Part of the new CEPA or under another federal statute (or regulations made thereunder) which provided sufficient protection to the environment and human health. At present, current section 54 of the Act precludes the development of environmental regulations if regulatory authority to do so exists elsewhere, regardless of the extent of protection they provide or whether or not such regulations have in fact been made.

Clause 211 is a reworded version of section 56 of the current Act, which sets out the information-gathering powers of the Minister for the purpose of making regulations under this Part.

Subject to minor wording changes, clause 212 would maintain the obligation of designated persons under section 57 of the current Act to make a report on the release or likely release of a substance into the environment in contravention of a regulation made under this Part. Clause 213 would maintain the option of third parties under current section 58 of the Act to make a voluntary report in such cases, and to have their identity protected upon request. Further, the protection against being disciplined, dismissed or harassed in the workplace, currently afforded to designated federal employees making either a voluntary or mandatory report under sections 57 and 58 of the Act, would be expanded by this clause to apply to all employees and not just federally-regulated employees.

Clauses 214 and 215 deal with the right of the federal government to recover all costs and expenses incurred by the Crown in taking preventive or remedial action in relation to unauthorized releases or likely releases under Part 9. These clauses largely reiterate the provisions of section 60 of the current Act, except that they would increase to five years the two-year limitation period for instituting proceedings.

For the purposes of this Part, clause 216 would define the word "substance" to include hazardous wastes, hazardous recyclable material or non-hazardous waste, as defined by regulations made under clause 191, and waste or other matter listed in Schedule 5. It would also define "conveyance" to include "any vehicle, ship or aircraft," and "place" as including "any platform anchored at sea, shipping container or conveyance."

Clause 217 as initially proposed would have empowered the Minister to designate three classes of verification/enforcement personnel under the new CEPA: analysts, inspectors and investigators. The last two designations were amended by the House Committee to form a single class, that of "enforcement officer." Both analysts and enforcement officers would require a certificate of designation under clause 217(2). Pursuant to clause 217(3), enforcement officers (but not analysts) would have all the powers of a peace officer, but the Minister could specify limits to those powers.

The powers in relation to inspections, searches, seizures, detentions and forfeitures are set out at clauses 218 to 242. To a certain extent, these provisions would duplicate those that are contained in sections 100 to 107 of the current Act, except that they have been modified where necessary to take into account the new matters coming under the jurisdiction of the revised legislation, such as vehicle emissions. The powers of enforcement officers would also be strengthened in a number of material respects. For example, clause 218(4) would allow enforcement officers to obtain a search warrant for the purposes of carrying out an inspection in a place other than a private dwelling in cases where access could not be gained. At present, such warrants may be obtained only in relation to private dwellings. Clause 218(7) and (8) would further allow enforcement officers to stop and detain conveyances, platforms or other structures, and to board and travel on a ship, platform or other structure.

New authority permitting the Minister to request the production of documents and samples would be provided under clause 219. Anything, including ships, aircraft, platforms and other structures believed to have been used in the commission of an offence under the Act or regulations, or that might afford evidence of the alleged offence, could be seized under warrant, and provisions would be enacted for the disposal or sale of any cargo found on board (clauses 220 to 222). Ships believed to have been used in connection with the commission of a specified offence could also be detained by order of an enforcement officer (clause 225). Clause 226 would authorize enforcement officers and analysts and other persons carrying out official duties under the Act to trespass on to private property in the course of their duties, and would shield them from liability in such cases.

The forfeiture provisions under section 107 of the current Act would be modified under clauses 231 to 232 expressly to allow for the forfeiture to the Crown of any ship, aircraft, platform or other structure whose owner had been convicted of a designated offence. Where forfeiture had been ordered in relation to "anything" (and not just ships, aircraft, platforms and other structures), clause 233 would enable third parties claiming an interest in the forfeited goods to apply to the Federal Court for a review of the order. If satisfied that the applicant (and any intervenors) was innocent of any complicity or collusion and had exercised reasonable care, the Court could, in such cases, make a declaration as to the nature and extent of that person’s interest. It could also order that the goods be delivered to that person to the extent of his or her interest, or that financial compensation be provided in an amount equal to the value of the person’s interest.

Finally, new authority would be provided under clauses 234 to 242 empowering enforcement officers to issue a cease and desist order in designated circumstances for a period of up to 180 days. Termed an "environmental protection compliance order" under the bill, such an order would normally have to be given in writing, but in exigent circumstances could be given orally; it could direct that a variety of actions be taken, including shutting down operations at a plant.

A person against whom an environmental protection compliance order had been issued under clause 235 could have the order reviewed by the Chief Review Officer or by a review officer assigned by the Chief Review Officer. The latter official would be appointed from the roster of review officers established by the Minister under the new Act (clauses 243 to 255).

Where a request for review had been made, a hearing would have to be held; the reviewing officer could, upon the applicant’s request, suspend the application of the order in appropriate circumstances until the completion of the review. After the review, the reviewing officer could either confirm or cancel the order; modify, add to, suspend or terminate a term and condition; or extend the order’s duration for 180 days, less the number of days passed since the order was received, not counting any days during which the order had been suspended (clauses 256 to 268). The Minister and any person against whom the order had been issued could appeal the order, as confirmed or varied on review, to the Federal Court of Canada (clause 269), where they would have the right to be heard on all questions of fact and law (clause 270).

The criminal sanctions and related measures are set out under clauses 272 to 294; they would largely reiterate the measures under sections 111 to 133 of the current Act. Notably, the current maximum fine of $1,000,000 for selected offences would be retained under clauses 272 and 273. The accused’s current liability to be convicted for a separate offence for each day the offence is committed or continued would also be retained under clause 276. However, the offences under clauses 272 to 273 of the bill would not be itemized as they are under existing sections 111 to 114 of the Act. While the prescribed punishment on conviction would be identical in most cases, it would be reduced in one instance: the penalty for offences involving the provision of false or misleading information or documentation "to any person" would be three years of imprisonment on conviction on indictment under clause 273(2)(a); the penalty for providing such information "to the Minister" under the current legislation is a five-year maximum term of imprisonment on conviction on indictment. Clauses 273(2) (c) and (d) would in turn introduce a new penalty where the foregoing offences were committed negligently: on conviction on indictment, the accused would be liable to a fine of up to $500,000 or imprisonment for up to three years, or both; and on summary conviction, he or she would be liable to a fine of up to $200,000 or imprisonment for up to six months, or both.

Clauses 295 to 309 would introduce an administrative alternative to the criminal sanctions prescribed under the foregoing clauses. Termed "environmental protection alternative measures" under the bill, these measures would enable the accused to be dealt with outside the criminal justice system, thus sparing him or her from the stigma of a possible conviction and criminal record.

Clause 296 sets out the conditions under which environmental protection alternative measures (EPAMs) could be used. Among other things, the use of such measures could not be inconsistent with the purposes of the Act; they would have to form part of a program authorized by the Attorney General and they would have to have been adjudged appropriate by the Attorney General, in consultation with the Minister, having regard to the nature of the offence and the circumstances surrounding its commission. In addition, the accused would have to apply to participate in the measures and accept responsibility for the act or omission underlying the offence (clause 296(1)). EPAMS, however, could not be used for the more than 20 offences listed under clause 296(1)(b), nor could they be used where the accused had denied participation or involvement in the commission of the alleged offence, or where he or she had expressed the wish to be dealt with by the courts (clause 296(2)).

An EPAMS agreement would have to be entered into within 180 days after the Attorney General provided initial disclosure of the Crown’s evidence to the accused (clause 296(1)(h)). The use of EPAMS, however, would not constitute a bar to any proceedings against the accused under the Act, nor would it prevent a person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence (clause 296(5) and (6)).

Clause 298(1) specifies the kind of terms and conditions that could be set out under EPAMS. These could include: all of the sentencing options that could be imposed upon conviction under section 291; other terms and conditions prescribed by regulation; and terms and conditions relating to the costs of laboratory and field tests, travel and living expenses, the costs of scientific analysis and other reasonable costs associated with supervising and verifying compliance with the agreement.

EPAMS could apply for a maximum term of three years (clause 299), and their implementation could be supervised by any governmental or non-governmental body (clause 298(2)). The EPAMS agreement would have to be filed with the court in which the information had been laid within 30 days of being made, although sensitive proprietary information, as defined under clause 300(3), could be kept confidential.

A report regarding the agreement’s implementation would also have to be filed with the court, once the terms and conditions of the agreement had been complied with or the charges against the accused had been dismissed (clause 300). In addition, copies of the foregoing documents (minus the confidential proprietary information) would have to be included in the Environmental Registry (clause 301).

Upon filing the EPAMS agreement, the Attorney General would have to stay the proceedings against the accused or apply to the court for an adjournment for a maximum period of one year following the expiration of the agreement. The proceedings, however, could be recommenced by notice to the clerk of court (clause 302), and the accused could be charged under clause 272 with non-compliance with the agreement. In such cases, the court, in imposing sentence for either offence, would be required to take into account the sentence previously imposed for the other offence. Where, in turn, a notice to recommence proceedings for the initial offence had not been given within the year following the agreement’s expiry, the proceedings would be deemed never to have been commenced (clause 302(b)).

On the application of the accused (but not of the Crown), clause 303 would allow the EPAMS agreement to be varied where there had been a material change in circumstances. Where the agreement had been varied, a copy of it would also have to be filed with the court and included in the Environmental Registry (clause 303(2)).

Where EPAMS had been used, the court would be required under clause 296(4) to dismiss the charges laid against the accused, where it was satisfied on a balance of probability that the accused had complied with the agreement.

Clauses 304 to 308 deal with the keeping of records (including fingerprints and photographs) in relation to alleged offences for which EPAMS had been applied, and set out the circumstances under which such records could be disclosed to designated officials and other persons. Notably, EPAMS records could be disclosed for the stated purposes to insurance companies (clause 305(3)), other federal departments and agencies (clause 307(1)(c)), and any person or class of person deemed by the court to have a valid interest in the material, where the court was satisfied that disclosure was desirable in the public interest for research and statistical purposes or in the interest of the proper administration of justice (clause 307(1)(d)). Where disclosure was made in the last two instances, however, the person to whom the material had been revealed would have to give a written undertaking not to disclose any information that could reasonably be expected to identify the person to whom the record related or any other person specified by the judge.

Clause 309 is the last clause dealing with EPAMS. It would authorize the development of regulations, including regulations excluding specified offences from the application of EPAMS; prescribing the form and manner and time lines within which an application to participate in the measures was to be made; respecting the types of reasonable costs and manner of paying the costs associated with supervising and verifying compliance with an agreement; and respecting the terms and conditions that might be provided for in an agreement and the effects of those terms and conditions.

Clause 310 would re-enact the "ticketing" provisions respecting contraventions, set out under current section 134 of the Act. These provisions authorize enforcement officers to issue a "ticket" with a pre-determined fine in relation to selected offences under the Act; this provides the accused with the option of pleading guilty and paying the fine without having to go to court.

Clause 311 would reiterate the injunctive relief prescribed under current section 135.

Clause 312 would introduce a new provision relating to vehicle emission offences. For offences under Division 5 of Part 7 of the new Act (vehicle, engine and equipment emissions), this clause would make it a defence for a company engaged in the assembly or alteration of vehicles to establish that the contravention had occurred as a result of work previously done on the vehicle by the vehicle’s manufacturer.

Part 11 would be the last operative part under the new Act. It would deal with a variety of matters; namely, the disclosure and non-disclosure of information pursuant to a request for confidentiality, the use of economic instruments, the Governor in Council’s regulation-making powers, proceedings before a board of review, the annual report, and the permanent review of the Act by a parliamentary committee every five years.

Clauses 313 to 321 deal with the disclosure and non-disclosure of information by the Minister. These clauses would replace sections 19 to 24 of the current Act and would make a number of changes, including the following:

Apart from these differences, the provisions governing the disclosure of information under the new Act would be largely the same as prescribed under the existing Act; namely, that information for which a claim of confidentiality had been made could not be disclosed unless the disclosure was expressly allowed under the Act or unless the disclosure was not prohibited under the relevant sections of the Access to Information Act. The special provisions under sections 21 and 23 of the current Act regarding the non-disclosure of exempted information under the Hazardous Materials Information Act and of information injurious to the defence or security of Canada (or any state allied or associated with Canada) would also be maintained (clauses 318 and 320).

Clauses 322 to 327 would introduce new authority in relation to economic instruments. Specifically, in order to further the purposes of the Act, the Minister would be empowered under clause 322 to establish guidelines, programs and other measures for the development and use of economic instruments and market-based approaches involving tradeable units, deposits and refunds. Before doing so, the Minister would have to offer to consult with the provincial/territorial government(s) and members of the National Advisory Committee representing Aboriginal governments, although he or she could take the prescribed action if the offer to consult was not accepted within 60 days of its having been made. The Minister could also consult (discretionary) with other government departments and agencies, Aboriginal people, industry, labour, municipal authorities and other interested parties (clause 323). He or she would be required to publish the guidelines, programs or other measures in the Canada Gazette or give notice of their availability (clause 324).

Clause 325 would authorize the Governor in Council to develop regulations respecting deposits and refunds when making regulations in relation to toxic substances under clause 93, nutrients under clause 118 and the "federal house" under clause 209. Clause 326 would in turn authorize the Governor in Council to develop regulations respecting tradeable units when making regulations in relation to the foregoing matters and in relation to fuels under clause 140, international air pollution under clause 167, and international water pollution under clause 177. Notwithstanding any regulations made with respect to tradeable units, however, clause 327 would empower the Minister either to issue an order setting conditions regarding the trading, or suspend or cancel trading of the tradeable units or invalidate any trading of them where both Ministers (Environment and Health) believed that the trade or use of the tradeable unit had, or might have, an immediate or long-term harmful effect on the environment; constituted, or might constitute, a danger to the environment on which human life depended; or constituted, or might constitute, a danger to human life or health in Canada.

Clause 328 would authorize the Minister of the Environment, the Minister of Health or both Ministers, as the case might be, to develop regulations respecting the fees that could be charged for any service, facility, right, privilege, process or approval under the Act. The fees for a service or the use of a facility could not exceed the cost to the Crown of providing the service or the use of the facility, and the fees for processes and approvals could not exceed an amount sufficient to compensate the Crown for any reasonable costs incurred in providing the processes or approvals. Before making such regulations, however, the relevant Minister(s) would be required by clause 329 to consult with persons or organizations considered to be interested in the matter.

Clause 330 sets out general provisions respecting the making of regulations under the Act. As regards any regulations relating to substances, clause 330(1) would authorize the Governor in Council to prescribe the minimum, average or maximum quantity or concentration of the substance, and the method of determining such a quantity. Where a standard, specification, procedure, etc. was being incorporated by reference under a regulation, clause 330(2) would expressly provide for the incorporation by reference of the standard, specification, procedure, as amended from time to time. Clause 330(3) was amended by the House Committee to stipulate that regulations made under the Act would apply throughout Canada. New clause 330(3.1) was also added, however, to allow specified regulations to apply in only a part or parts of Canada in order to protect the environment or its biological diversity or human health. The regulations subject to this selective application are those that might be made in relation to toxic substances (clause 93), fuels (clause 140), international air pollution (clause 167) and international water pollution (clause 177).

Finally, clause 331 would exempt interim orders made under specified sections of the Act from having to comply with selected requirements prescribed under the Statutory Instruments Act; namely, the requirement that the proposed instrument be forwarded to and examined by the Clerk of the Privy Council and the Deputy Minster of Justice to ensure that it is in order, the requirement that copies of the instrument (once adopted) be forwarded to the Clerk of the Privy Council for registration purposes, and the requirement that the instrument be published in the Canada Gazette.

Clause 332 would require that all proposed regulations and orders be published in the Canada Gazette, with the exception of changes made to the Domestic Substances List and the Non-domestic Substances List.

Subject to some changes, clauses 333 to 341 would re-enact sections 89 to 97 of the current Act, which deal with the establishment, composition, powers and duties of boards of review established on an ad hoc basis to consider notices of objection filed under specified sections of the Act.

Like section 89 of the current Act, clause 333 specifies the instances in which a board of review would have to be established under the new Act, and those in which one might be established at the discretion of the Minister or Ministers. In this regard, clause 333(1) would empower the Minister or Ministers to establish, on a discretionary basis, a board of review to consider a notice of objection filed in relation to: any proposed instrument which would have to be published in the Canada Gazette under clause 91 regarding preventive or control actions to be taken in relation to a toxic substance; and any proposed order or regulation made under the Act, except: orders listing or de-listing federal statutes or regulations under Schedule 2 and Schedule 4; the listing or de-listing of substances under the Domestic Substances List and the Non-domestic Substances List; and the listing and de-listing of living organisms under the Domestic Substances List.

In addition, the Minister would be empowered under clause 333(2) to establish, on a discretionary basis, a board of review to consider a notice of objection filed in relation to a proposed administrative agreement negotiated under clause 9 or a proposed equivalency agreement under clause 10.

Clause 333(3) and (4) would require the Minister to establish, on a mandatory basis, a board of review to consider a notice of objection filed in relation to proposed regulations developed under clause 176 (international air pollution), clause 177 (international water pollution), Part 9 ("federal house") and clause 118 (nutrients).

Finally, clause 333(5) would empower the Minister, on a discretionary basis, to establish a board of review to consider a notice of objection filed by anyone in relation to the issuance, non-issuance, variance, suspension or revocation of a permit for disposal at sea pursuant to clause 134. At present, a board of review must be established under current section 89(4) of the Act to consider a notice of objection filed by the applicant or permit holder. Although members of the public are not entitled to file a notice of objection in such cases, there is an overriding discretion in the Minister under current section 89(3) to establish a board of review to inquire into complaints from the public, if the Minister considers it advisable to do so.

Clause 334 provides that a board of review would consist of no fewer than three members. Only persons knowledgeable about the Canadian environment, environmental and human health or traditional ecological Aboriginal knowledge could be appointed as members of a board of review.

Clauses 335 to 341 would re-enact current sections 90 to 97 almost verbatim. Thus, at the end of its inquiry, a board of review would be required under the new Act, as under the current Act, to submit a report to the relevant Minister(s). While the board’s recommendations would be non-binding, its report would have to be made public immediately after receipt, subject to the confidentiality requirements regarding proprietary information under clause 314 or the conditions of any other federal Act.

Like current section 138 of the Act, clause 342 would require the Minister to prepare and table before each House of Parliament an annual report on the administration and enforcement of the new Act. Pursuant to an amendment made by the House Committee, the Minister would be required to include in the annual report an account of the research carried out under the new CEPA for the fiscal year in question.

Clause 343 would authorize a parliamentary review of the administration of the Act, every five years after its coming into force. Such a review could be carried out either by a committee of the House of Commons, or of the Senate or a committee of the House of Commons and the Senate, as designated or established for that purpose. Finally, within a year of having undertaken the review (or within such further time as was authorized by the House of Commons, the Senate, or both Houses of Parliament), the designated committee would be required to submit a report to Parliament, including a statement of any recommended changes to the Act or its administration.

Clauses 344 to 354 would make consequential amendments to the following Acts: the Access to Information Act, the Canada Shipping Act, the Criminal Code, the Food and Drugs Act, the Manganese-based Fuel Additives Act, and the Motor Vehicle Safety Act.

Clause 355 would repeal the current CEPA. New clause 355.1 is a transitional measure, added at report stage in the House of Commons. Its effect would be to roll-over to the new Act all regulations made under the old Act, until they were expressly amended or repealed. All pre-existing regulations that were inconsistent with the new Act, however, and that had not been expressly amended or repealed, would automatically cease to be in force two years after Bill C-32 had received Royal Assent. Finally, clause 356 stipulates that the new CEPA, or any of its provisions, would come into force on a day or days to be fixed by order of the Governor in Council.

Bill C-32 would make a number of changes that the House of Commons Standing Committee on Environment and Sustainable Development had recommended in its 1995 report It’s About Our Health! Towards Pollution Prevention. For example, the principle of sustainable development would be enshrined in the declaration and the preamble. As well, sustainable development would be mentioned in the Act’s proposed long title, "An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development."

Pollution prevention would be given even greater prominence under the new legislation. In addition to being enshrined in the declaration, the preamble and the long title, this principle would be implemented to a certain extent under the new Act, notably by requiring the Governor in Council to give priority to pollution prevention action in developing regulations or instruments in relation to toxic substances (clause 90(1.1)) and by authorizing the Minister to require the development of pollution prevention plans for toxic substances (clause 56 et seq.). Also authorized would be the establishment of a national pollution prevention information clearinghouse for the collection, exchange and distribution of information relating to pollution prevention, and the establishment of a program for public recognition of significant achievements in this area (clause 63). As part of the sentencing options that could be imposed for infractions under the Act or as part of an EPAMS agreement (environmental protection alternative measures) would be orders to prepare and implement a pollution prevention plan (clauses 291 and 298).

Despite the many improvements that Bill C-32 would make to the current Act, the bill proved to be, and remains, controversial. The House of Commons Standing Committee on Environment and Sustainable Development studied the bill for almost one year, from May 1998 to the end of March 1999 and drafted over 500 amendments. Although not all the draft amendments were tabled in committee, of those that were tabled and moved, approximately 160 were accepted. More than 100 additional amendments were made at report stage in the House of Commons, although most of these were made in order to harmonize the French and English texts.

Of considerable concern were certain provisions in Bill C-32 that had not been contained in its precursor, Bill C-74, which died on the order paper when the last general election was called.

One such provision was the added requirement in Bill C-32 for the Minister (or Ministers in some cases) to "offer to consult" the provincial and territorial governments and the Aboriginal members of the National Advisory Committee before taking specified action under the bill; for example, before issuing guidelines in relation to the Minister’s information-gathering powers (clause 47(2)), modifying the Priority Substances List (clause 76(2)), or recommending the development of regulations respecting fuels (clause 140(4)). This new requirement to offer to consult, which would apply to at least ten different types of action that the Minister(s) could take under the new Act, was opposed by many members of the House Committee who questioned the propriety of having such a requirement in a federal statute. Several members proposed amendments that would have reinstated the original measure included in Bill C-74 to allow consultations on a discretionary basis, rather than making offers to consult a pre-condition to action. A further series of amendments was moved in the House Committee that would have placed a 60-day time limit on the consultation process before the Minister(s) could take the prescribed action. Only one amendment of this kind was passed, however; it amended clause 69 to stipulate that nothing would prevent the Minister(s) from taking the prescribed action (the development of interpretive guidelines respecting Part 5) at any time after the sixtieth day following that on which the offer to consult had been made. The other identical amendments, moved on a different day, when the membership of the Committee had been differently constituted, were defeated. In answer to the continued opposition to the "shall offer to consult" clauses, the government introduced amendments at report stage that would allow the Ministers to take the specified action 60 days after the offer to consult had been made, but not accepted. All the relevant clauses were so amended, except for clause 69. Whether this latest series of amendments constitutes an improvement over the original formulation is open to question. Some critics argue that the 60-day timeline might discourage a swift response to the Ministers’ offer and might, in practice, become the standard timeframe for responding. The 60-day timeline for action would also apply only if the offer to consult was not accepted. The bill fails to specify, however, when the Ministers might act if the offer to consult were accepted, thereby potentially "tying" their hands for an indefinite period of time. By making the non-acceptance of the offer to consult a pre-condition for the taking of action, the amended clauses also make far clearer than did the original clauses that the Ministers must consult where their offer is accepted; this further "codifies" the consultation process which so many members of the House Committee found objectionable.

A further controversial difference between Bill C-32 and Bill C-74 concerned the "trigger" for requiring pollution prevention plans (clause 56), virtual elimination plans (clause 79) and environmental emergency plans (clause 199) under the new Act. Under Bill C-74, such plans could have been required once the Ministers had determined that a substance was toxic and had recommended to the Governor in Council that it be added to the List of Toxic Substances. Bill C-32, on the other hand, would originally have allowed such plans to be required only once the Governor in Council had actually added the substance to that List. This revised trigger for action was opposed by some members of the Committee who, stressing the benefits of having such plans developed at the earliest opportunity, introduced amendments to reinstate the trigger prescribed in Bill C-74. Like the "shall offer to consult" clauses, however, these amendments were moved on different days, when the Committee was differently constituted. Consequently, only one of the three amendments was accepted. This modified clause 199 to enable the Minister to require that an environmental emergency plan be prepared in relation to a substance at the time the substance was recommended for inclusion on the List of Toxic Substances, and not only at the time it was actually included. The proposed trigger for pollution prevention plans and virtual elimination plans, however, remained unchanged. These plans might thus be required only in relation to substances actually specified on the List of Toxic Substances.

A similar result was initially obtained in relation to the so-called residual clauses in the bill. These clauses would disallow specified action to be taken under CEPA if action could be taken under another federal statute that contained notice and assessment provisions. Under both Bill C-32 and Bill C-74, the Minister responsible for the other statute would have had the responsibility for determining whether or not his or her legislation met the notice and assessment requirements for taking priority over CEPA. Many Committee members objected to vesting the other Minister with this responsibility, and amendments were proposed to make the Minister of the Environment, and the Minister of Health where appropriate, responsible for making the requisite determination. In a spirit of compromise, the government proposed an alternative amendment that would empower the Governor in Council to make the determination. Again, as the relevant government-sponsored amendments were considered at different times, when the Committee was differently constituted, only one of them was accepted (clause 81(7): new substances). The rival amendment empowering the Minister of the Environment, and where appropriate the Minister of Health, to make the requisite determination was adopted in clause 106(7) (living organisms). This last clause was amended at report stage, however, so that both clauses (clauses 81(7) and 106(7)) now provide that the Governor in Council would make the requisite determination.

A similar inconsistent result was also reached in relation to selected regulation-making powers. In the original bill, the Governor in Council would have been precluded from making specified regulations under CEPA if, in its opinion, the matter was regulated under another Act of Parliament. Two amendments were made that would empower the Governor in Council to decide, in accordance with revised criteria, whether or not action under CEPA was precluded (clauses 93(4): toxic substances and clause 200(2): environmental emergencies). Under a third amendment, this responsibility was given to the Minister or, where applicable, both Ministers (clause 115(2): living organisms). The last clause, however, was amended at report stage to bring it into line with the other two clauses. Thus, all three clauses (clauses 93(4), 220(2) and 115(2)) now provide that the Governor in Council would have to decide whether regulatory action should be taken under CEPA in light of the action taken under the other federal legislation.

Many equally contentious clauses were amended by the House Committee. For example, all references to "cost effectiveness" were deleted from the bill, except for the reference in the Preamble’s sixth recital. This recital sets out the Government of Canada’s commitment to implementing the precautionary principle, whereby lack of full scientific certainty shall not be used as a reason for postponing "cost-effective" measures to prevent environmental degradation where there are threats of serious or irreversible damage. Although amendments to delete the words "cost-effective" from this clause were defeated, another clause was added in committee (new clause 2(1)(a)) that would require the Government of Canada to apply the precautionary principle in administering the Act. In this case, the precautionary principle was originally defined without reference to cost-effectiveness; however, an amendment at report stage added the words "cost-effective," so that the same definition of the precautionary principle appears in both clauses.

There is also likely to be continued debate over the revised definition of "virtual elimination." Formerly set out in clause 64, the original definition was extremely unclear and open to interpretation. Many members of the House Committee felt that the original definition fell unacceptably short of the federal government’s policy of "no releases above measurable levels," which, in its 1995 publication Toxic Substances Management Policy, it had committed itself to implement. Given the numerous concerns raised with respect to the original definition and in a spirit of accommodation, the government introduced a revised definition of virtual elimination, which was accepted in committee. As proposed in clauses 65 and 65.1, virtual elimination would consist of the ultimate reduction of the release of designated substances into the environment to a level below the lowest level of concentration that could be accurately measured using sensitive but routine sampling and analytical methods.

Although this revised definition might be more in keeping with the federal government’s policy of "no releases above measurable levels," it may still come under continued criticism because its focus remains on "releases." A number of environmental groups had strongly urged that measures be implemented to reduce the "use" (as opposed to "releases") of toxic substances. Furthermore, the bill makes clear that virtual elimination is an "ultimate" goal only, which may take considerable time to achieve; it is implicit in the bill that a graduated approach could be used. This is evident from clause 65(3), which would require the Ministers to specify how much of a particular substance on the virtual elimination track might be released into the environment, but only after they had taken a variety of factors into account, including all "relevant social, economic or technical matters." Depending on how much weight was accorded to such factors, virtual elimination might not be achieved swiftly, but could take years, or even decades, or might never be fully implemented. In the end, the virtual elimination track may amount to no more than a traditional "command and control" measure, albeit with a special name.

Whether the bill, as amended, will receive broad support is an open question. Environmental groups had a number of concerns in relation to the original bill which were not remedied. One example is the environmental protection action (the so-called "citizen suit") proposed in clauses 22 to 38. Pointing out the numerous pre-conditions that would have to be satisfied before an environmental protection action could be instituted, some environmental groups feared that the measure would never be used in practice. They recommended that it be either materially improved or removed altogether from the bill. Neither recommendation was followed, however. Other clauses in the bill were strengthened, notably the administrative duties in clauses 2, but it remains unclear whether the environmental groups will consider that the revised bill represents enough improvement over the existing Act for it to be adopted.

Though industry groups in general were supportive of the bill in its original form, many of them withdrew their support in view of the numerous amendments made by the House Committee. Whether the amendments made at report stage will regenerate their support remains to be seen.

(1) Environment Canada, From Cradle to Grave: A Management Approach to Chemicals, September 1986.

(2) Having first recommended that the definition of "toxic" under CEPA be modified to include both risk assessment and hazard assessment, the Committee proposed that three tracks be established in CEPA for assessing and managing toxic substances. Track 1 would create a presumption of "sunsetting" in relation to substances that had been sunsetted or banned in a Canadian province or an OECD (Organisation for Economic Co-operation and Development) country, and in relation to substances that were persistent, bioaccumulative and inherently toxic. Track 2 would create a presumption of "toxic" designation for any substance regulated in a Canadian province or an OECD country. Track 3 would involve the ongoing assessment of existing substances through a continued Priority Substances List, that would be refocused to include more classes of substances, effluents and waste streams.

(3) The three schedules under the current CEPA deal with the following matters. Schedule I: list of toxic substances; Schedule II: list of prohibited substances (Part I), list of prohibited substances requiring export notification (Part II), and list of hazardous wastes requiring export or import notification (Part III); and Schedule III, which contains the following three parts related to ocean dumping: list of prohibited substances (Part I), list of restricted substances (Part II), and list of factors (Part III).

(4) The seven operative parts in the current CEPA deal with the following matters. Part I: environmental quality objectives, guidelines and codes of practice; Part II: toxic substances; Part III: nutrients; Part IV: federal departments, agencies, Crown corporations, works, undertakings and lands; Part V: international air pollution; Part VI: ocean dumping; and Part VII: general.