Environmental Authorizations in Québec: Protecting your Confidential Information

August 9, 2018 | Anne-Frédérique Bourret, Claire R. Durocher

Businesses applying for ministerial authorizations under the Environment Quality Act (“EQA”), as amended, are now required to exercise particular care when it comes to the protection of their commercially sensitive information. Indeed, the coming into force of Bill 102 An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund (“Bill 102”) has introduced certain significant changes to the framework governing public access to the information tendered by applicants under the EQA.

Previously, access to information tendered as part of an application for authorization under the EQA was subject to the provisions of the Act respecting Access to documents held by public bodies and the Protection of personal information (CQLR, c. A-2.1) (the “Access Act”). Under the Access Act, when a business’ information is the subject of an access to information request, it is invited to submit its observations. Without its consent, the Ministry of Sustainable Development, the Environment and the Fight against Climate Change (“Ministry” or “Ministry of the Environment”) is barred from disclosing information consisting of industrial secrets or confidential industrial, financial, commercial, scientific, technical or union information which the business has provided and which it ordinarily treats as confidential. This also extends to any information that would likely hamper negotiations in view of a contract, result in losses for a third party or considerable profit for another person or substantially reduce a third person’s competitive margin. These matters can be brought to review before the Commission d’accès à l’information.

Bill 102 has sought to streamline this practice by establishing an alternate process for the information held by the Ministry of the Environment, whereby information tendered by applicants will be publicly available on a registry established and maintained by the Ministry.

Bill 102 provides that certain information is inherently public information, namely the description of the activity for which authorization is sought, and its localization, as well as the nature, quantity, concentration and localization of any contaminant that is likely to be discharged into the environment, with the exception of information regarding the localization of threatened or vulnerable species. Under the amended EQA, the scope of publicly available information has been broadened. Whereas the Access Act prevents the disclosure of a wide range of information tied to the commercial core of a business, under the amended EQA, the information that is not considered to be public has been limited to the information that is not inherently public and which the business considers as confidential industrial or trade secrets. As applicants seek ministerial authorization, or amendment thereof, they will need to identify and justify in their application which information and which documents are not public and which they consider as confidential industrial or trade secrets. The Ministry has published a draft of the additional form for the identification of confidential industrial or trade secrets for use by applicants. As part of this form they will be called to identify the form or module, the section number, a description of the section or attachment, including page or section numbers thereof which holds the confidential industrial or trade secret and then justify its confidentiality. Where space is insufficient, the applicant can attach additional documents to the form.

While applicants may be tempted to broadly assert that the entirety of their application should be confidential, the Ministry is not bound by their determination; where the Ministry is not convinced of the confidentiality of certain information, it can elect to disclose it. The Ministry must notify Applicants of such a decision in writing, which decision becomes enforceable fifteen days after it is sent. Applicants can apply to the Québec Superior Court for judicial review of the Ministry’s decision

For additional information, please contact Anne-Frédérique Bourret or Claire R. Durocher at Miller Thomson LLP.

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