First Nations Oil and Gas and Moneys Management Act (S.C. 2005, c. 48)
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Assented to 2005-11-25
First Nations Oil and Gas and Moneys Management Act
S.C. 2005, c. 48
Assented to 2005-11-25
An Act to provide first nations with the option of managing and regulating oil and gas exploration and exploitation and of receiving moneys otherwise held for them by Canada
SUMMARY
The purpose of this enactment is to enable any first nation subject to the Indian Act, if it chooses to do so, to assume the direct management and regulation of oil and gas exploration and exploitation currently carried out on its behalf by Indian Oil and Gas Canada. It would also allow any first nation to receive and manage moneys that are derived from any source on reserve lands and that would otherwise be retained or collected, and managed on its behalf, by the Minister of Indian Affairs and Northern Development. The decision to do so, in either case, would be made in a referendum conducted among eligible members of the first nation.
Preamble
WHEREAS the White Bear First Nation entered into Treaty Number Four with Her Majesty on September 23, 1875 and the Blood and Siksika (Blackfoot) First Nations entered into Treaty Number Seven with Her Majesty on September 22, 1877;
WHEREAS existing aboriginal and treaty rights of the aboriginal peoples of Canada were recognized and affirmed by section 35 of the Constitution Act, 1982;
WHEREAS the White Bear, Blood and Siksika First Nations wish to assume control of oil and gas in their reserve lands and related revenues, and control of current and future moneys that would otherwise be held for them by Canada;
WHEREAS those first nations have, since 1994, entered into a series of agreements with the Government of Canada for the co-management of oil and gas in their reserve lands;
WHEREAS the same first nations have participated with the Government of Canada in the development of proposals for legislation for the transfer of control of oil and gas and of moneys held for them;
AND WHEREAS it is recognized that such legislation could also benefit other first nations if they chose to avail themselves of it;
NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the First Nations Oil and Gas and Moneys Management Act.
INTERPRETATION AND APPLICATION
Marginal note:Definitions
2. (1) The following definitions apply in this Act.
“contract”
« contrat »
“contract” means a licence, permit or lease granting a surface or subsurface right or interest in land — or an instrument evidencing an easement, a right-of-way, a right of entry or any other disposition of a right or interest in land — that is granted, issued or made for the purposes of oil or gas exploration or exploitation.
“decision-making authority”
« autorité décisionnelle »
“decision-making authority”, in relation to a project, means a person or body having power under section 34 or under a first nation’s oil and gas laws to make any decision that is required in order for the project to be undertaken.
“environmental assessment”
« évaluation environnementale »
“environmental assessment”, in relation to a project in a managed area, means an assessment of the project’s effects on the environment conducted in one or more stages in accordance with a first nation’s oil and gas laws.
“exploitation”
« exploitation »
“exploitation”, in relation to oil or gas, means its extraction, production, storage, distribution, processing or refining, or its use to generate electrical energy, to the extent that those activities relate to lands in a managed area.
“exploration”
« exploration »
“exploration” includes surveying, mapping, test drilling and geological, geophysical and geochemical examinations carried out in pursuit of oil or gas.
“financial institution”
« institution financière »
“financial institution” means a bank or a trust company.
“first nation”
« première nation »
“first nation” means a band within the meaning of the Indian Act.
“first nation member”
« membre de la première nation »
“first nation member” means a person whose name appears on the band list of a first nation or who is entitled to have their name appear on that list.
“gas”
« gaz »
“gas” means natural gas that can be produced from a well, including natural gas from a coal bed, and includes marketable gas as well as condensate and other fluid components of natural gas that are not oil.
“managed area”
« secteur aménagé »
“managed area” means a managed area as described in section 25.
“Minister”
« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
“oil”
« pétrole »
“oil” means any hydrocarbon that can be extracted or recovered in liquid form from surface or subsurface deposits, other than condensate, or that can be extracted or recovered from bitumen, bituminous sands, oil sands or oil shale.
“oil and gas law”
« texte pétrolier ou gazier »
“oil and gas law” means a law made by a first nation under section 35.
“oil and gas moneys”
« recettes pétrolières ou gazières »
“oil and gas moneys” means moneys derived from oil or gas exploration or exploitation within the managed area of a first nation after the first nation’s transfer date, and includes fines recovered for offences under oil and gas laws.
“project”
« projet »
“project” means
(a) any proposed construction, operation, modification, decommissioning or abandonment of an installation used for oil or gas exploration or exploitation, or any other proposed undertaking in relation to such an installation; or
(b) any proposed exploration activity of a kind that is defined, by the regulations or by a first nation’s oil and gas laws, as a project for the purposes of environmental assessments.
“transfer date”
« date de transfert »
“transfer date”, in relation to a first nation, means the date on which the first nation’s name is added to Schedule 1 under subsection 22(1).
“trust company”
« société de fiducie »
“trust company” means a trust company under subsection 57(2) of the Trust and Loan Companies Act, or a company incorporated by or under a provincial Act that carries on the business of a trust company, that is a member institution within the meaning of section 2 of the Canada Deposit Insurance Corporation Act.
Marginal note:Expressions in Canadian Environmental Assessment Act.
(2) In this Act, “environment” and “environmental effect” have the same meaning as in the Canadian Environmental Assessment Act.
Marginal note:Expressions in Indian Act
(3) Unless the context otherwise requires, words and expressions used in this Act have the same meaning as in the Indian Act.
Marginal note:For greater certainty
3. For greater certainty,
(a) Her Majesty’s title to lands in a managed area is not affected by this Act;
(b) lands in a managed area continue to be set apart by Her Majesty for the use and benefit of the first nation for which they were set apart;
(c) lands in a managed area continue to be lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867;
(d) this Act does not affect the ability of a first nation to participate in and benefit from any federal government program; and
(e) nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Marginal note:Territorial lands
4. This Act does not apply in respect of reserve lands in Yukon or in respect of frontier lands within the meaning of the Canada Petroleum Resources Act.
Marginal note:Individual moneys
5. This Act does not apply in respect of moneys collected, received or held by Her Majesty in right of Canada under the Indian Act for the use and benefit of an individual.
REQUESTS FOR TRANSFER
Marginal note:Council resolution — oil and gas
6. The council of a first nation may submit to the Minister a written resolution of the council requesting the transfer to the first nation of the management and regulation of oil and gas exploration and exploitation in its reserve lands.
Marginal note:Council resolution — moneys
7. The council of a first nation may submit to the Minister a written resolution of the council requesting the payment to the first nation of
(a) moneys held by Her Majesty for the use and benefit of the first nation; and
(b) moneys to be collected or received in future by Her Majesty for the use and benefit of the first nation.
Marginal note:Information from Minister — oil and gas
8. (1) Subject to subsections (3) and (4), following receipt of a resolution under section 6, the Minister shall provide to the first nation, if the first nation does not already possess them,
(a) copies of all contracts issued in respect of the first nation’s reserve lands that are in force and of any documents evidencing designations of those lands under the Indian Act;
(b) copies of any documents in the Minister’s possession respecting contracts referred to in paragraph (a) that relate to periods after the issuance of those contracts;
(c) particulars of all moneys payable under contracts referred to in paragraph (a); and
(d) any documents in the Minister’s possession with respect to contaminated sites on the first nation’s reserve.
Marginal note:Timetable for providing information
(2) Following receipt of a resolution under section 6, the Minister shall provide the first nation with a timetable for delivery of the documents and information referred to in subsection (1).
Marginal note:Exclusion of confidential information
(3) The Minister shall not provide information that is subject to solicitor-client privilege or is otherwise privileged at law.
Marginal note:Exclusion of confidential information
(4) The Minister is not required to provide information that may, or must, be withheld under any federal law.
Marginal note:Restriction
(5) Subsection (4) does not apply in respect of information provided to the Minister by a contract holder.
Marginal note:Information from Minister — moneys
9. Following receipt of a resolution under section 7, the Minister shall inform the first nation of the amount of the moneys held by Her Majesty for the first nation at the time of the receipt of the request and of the outstanding amount of any loans referred to in subsection 30(2).
REQUIREMENTS FOR TRANSFER
Marginal note:Oil and gas code
10. (1) Before a vote is conducted on a transfer requested under section 6, a first nation shall prepare an oil and gas code that
(a) prescribes the procedure to be followed by the council of the first nation in the making, amendment and publication of oil and gas laws;
(b) provides for the accountability of the council to first nation members for the management and regulation of oil and gas exploration and exploitation;
(c) establishes procedures for disclosing and addressing conflicts of interest of members of the council and employees of the first nation in the management and regulation of oil and gas exploration and exploitation;
(d) if the first nation shares a reserve with another first nation, provides for the coordination of the management and regulation of oil and gas exploration and exploitation by the two first nations; and
(e) provides for the amendment of the code by the first nation.
Marginal note:Financial code for oil and gas moneys
(2) Before a vote is conducted on a transfer requested under section 6, a first nation shall prepare a financial code that
(a) specifies the mode of holding oil and gas moneys, either by their deposit in an account with a financial institution or their payment to a trust of which the first nation is settlor and sole beneficiary, and prescribing the conditions governing subsequent changes from one mode to the other;
(b) provides for the manner of collecting oil and gas moneys and the manner of expending moneys held in the account or received by the first nation from the trust;
(c) provides for the accountability of the council to first nation members for the management of oil and gas moneys;
(d) establishes procedures for disclosing and addressing conflicts of interest of members of the council and employees of the first nation in the expenditure of those moneys; and
(e) provides for the amendment of the code by the first nation.
Marginal note:Financial code for moneys received from Canada
11. Before a vote is conducted on a payment requested under section 7, a first nation shall prepare a financial code
(a) specifying the mode of holding moneys paid by Her Majesty to the first nation under sections 30 and 31 by their deposit in an account with a financial institution or payment to a trust of which the first nation is settlor and sole beneficiary, and prescribing the conditions governing future changes from one mode to the other;
(b) respecting the manner of expending moneys held by the first nation in the account or received by it from the trust;
(c) respecting the accountability of the council of the first nation to first nation members for the expenditure of those moneys;
(d) establishing procedures for disclosing and addressing conflicts of interest of members of the council and employees of the first nation in the expenditure of those moneys; and
(e) providing for the amendment of the code by the first nation.
Marginal note:Law of trusts
12. (1) Laws of general application in relation to trusts and trustees in force in the province in which the trust instrument is executed apply in respect of a trust established for the purposes of this Act except to the extent that those laws conflict with this Act.
Marginal note:Rules against perpetuities and accumulations
(2) A trust established for the purposes of this Act is exempt from the application of any rule of common law that limits the period within which a beneficial interest must vest or the period during which income may be accumulated.
Marginal note:Councillors as trustees
13. (1) A member of the council of a first nation may not be made a trustee ex officio of a trust established for the purposes of this Act.
Marginal note:Exception
(2) Subsection (1) does not preclude a member of a council from serving as a trustee in the member’s personal capacity.
Marginal note:Security required of trustees
14. Every trustee of a trust established for the purposes of this Act other than a trust company shall, before moneys are paid into a trust referred to in section 10 or 11, and at any other time when the council so requests, provide to the council of the first nation
(a) evidence of bonding, insurance or other form of security, in an amount equal to the amount held in the trust, for the recovery of any loss occasioned by theft or by breach of the conditions of the trust; and
(b) evidence that the trustee fulfils the requirements of provincial law, if any, as to the minimum financial worth of trustees generally.
Marginal note:Oil and gas transfer agreement
15. After a first nation has prepared the codes referred to in section 10, the Minister and the first nation may conclude a transfer agreement setting out arrangements for the transfer to the first nation of the management and regulation of oil and gas.
Marginal note:Moneys payment agreement
16. After a first nation has prepared the codes referred to in section 11, the Minister and the first nation may conclude a payment agreement setting out arrangements for the payment of moneys to the first nation.
APPROVAL PROCEDURE
Marginal note:Approval of transfer
17. After a transfer agreement has been concluded under section 15, the first nation may conduct a vote among its eligible voters, in accordance with the regulations, on the ratification of the oil and gas code and the financial code referred to in section 10 and the approval of the transfer to the first nation of the management and regulation of oil and gas exploration and exploitation.
Marginal note:Approval of payment
18. After a payment agreement has been concluded under section 16, the first nation may conduct a vote among its eligible voters, in accordance with the regulations, on the ratification of the financial code referred to in section 11 and the approval of the payment of moneys to the first nation in accordance with the code.
Marginal note:Combined vote on oil, gas and moneys
19. If agreements have been concluded under both sections 15 and 16, a single vote may be conducted for the purposes of sections 17 and 18.
Marginal note:Eligibility to vote
20. (1) Subject to subsection (2), a first nation member, whether resident on the reserve or not, is an eligible voter if the member’s name appears on the band list and the member has reached the age of eighteen years on the date of the vote.
Marginal note:Exception
(2) In the case of a first nation that is not the subject of an order made under section 74 of the Indian Act, a first nation member, whether resident on the reserve or not, is an eligible voter if the member’s name appears on the band list and the member has, on the date of the vote, reached the eligible age for participation in the selection of the first nation’s council according to the custom of the first nation.
Marginal note:Approval by majority vote
21. (1) Subject to subsections (2) and (3), a vote conducted under section 17 or 18 is affirmative when
(a) a majority of eligible voters participates in the vote and a majority of those who participate votes affirmatively; or
(b) the council has provided for the registration of eligible voters who signify their intention to participate in the vote, and a majority of those who are so registered votes affirmatively.
Marginal note:Minimum participation
(2) A vote is not affirmative unless more than twenty-five per cent of all eligible voters vote affirmatively.
Marginal note:Increased percentage
(3) The council of a first nation may, by resolution adopted before the vote, increase the proportion of votes required under paragraph (1)(a) or (b) or subsection (2).
TRANSFERS TO FIRST NATIONS
Oil and Gas
Marginal note:Additions to Schedule 1
22. (1) The Governor in Council may, by order, add a first nation’s name to Schedule 1 following
(a) an affirmative vote by the first nation’s eligible voters on the ratification of the codes prepared under section 10 and the approval of the transfer of the management and regulation of oil and gas exploration and exploitation to that first nation; and
(b) the making of laws by the council under paragraphs 35(1)(a) to (d).
Marginal note:Change of name
(2) On receipt by the Minister of a resolution of a first nation’s council advising of a change in the name of the first nation, the Governor in Council may, by order, amend Schedule 1 accordingly.
Marginal note:Transfer of contracts
23. (1) On a first nation’s transfer date, the rights and obligations of Her Majesty under existing contracts in respect of the first nation’s managed area — as well as under any agreements related to those contracts — are assigned to the first nation.
Marginal note:Notice
(2) The Minister shall provide written notice to contract holders of the assignment of their contracts and any agreements referred to in subsection (1).
Marginal note:Existing designations
(3) For greater certainty, after a first nation’s transfer date, any designations made under the Indian Act in respect of oil and gas in the first nation’s managed area cease to have effect, and the rights and obligations of Her Majesty under those designations are superseded by the rights and obligations of the first nation under this Act.
Marginal note:Restriction
(4) If a designation under the Indian Act relates both to oil and gas and to other rights and interests unrelated to oil and gas, subsection (3) applies in respect of the designation only insofar as it relates to oil and gas.
Marginal note:Rights and interests under contracts
24. (1) Oil and gas laws that come into force on a first nation’s transfer date may not impair the rights or interests of a contract holder under a contract assigned by section 23.
Marginal note:Power of first nation to amend
(2) Subsection (1) does not apply in respect of the making of laws by a first nation after its transfer date.
Marginal note:Managed area
25. (1) The managed area of a first nation consists of the lands set apart, as of the transfer date, as the reserve or reserves of the first nation, and includes any lands subsequently added to those lands, unless the first nation and the Minister agree otherwise at the time they are added.
Marginal note:Excluded lands
(2) Any reserve lands whose boundaries have been surveyed under Part II of the Canada Lands Surveys Act may be excluded from a managed area if the transfer agreement so provides.
Marginal note:Restoration of excluded lands
(3) The Minister and the first nation may agree, at any time after a first nation’s transfer date, to include in the first nation’s managed area any of the lands excluded from it by the transfer agreement, in which case an amendment shall be made accordingly to the legal description of the managed area in the appli-cable register referred to in subsection 26(1).
Marginal note:Registration of lands
26. (1) A legal description of a first nation’s managed area shall be entered, as of the first nation’s transfer date, in the Reserve Land Register maintained under section 21 of the Indian Act or, in the case of a first nation to which the First Nations Land Management Act applies, the First Nations Land Register maintained under section 25 of that Act. If lands are subsequently added to the managed area, the applicable register shall be amended accordingly.
Marginal note:Registration of existing contracts
(2) All contracts in respect of a first nation’s managed area that are registered in the Surrendered and Designated Lands Register maintained under subsection 55(1) of the Indian Act shall be entered, as of the transfer date, in the register established by the regulations or, if none has been established, in the applicable register referred to in subsection (1).
Marginal note:Liability for transfer
27. (1) Her Majesty is not liable for
(a) the decision by a first nation or its council to request a transfer under section 6 or for any actions taken by the first nation or its council pursuant to the request;
(b) any loss or damage resulting from the assignment of contracts to the first nation under section 23; or
(c) an unintentional omission to provide any information referred to in subsection 8(1).
Marginal note:Liability for future management
(2) Her Majesty is not liable in respect of the exercise of powers by a first nation in relation to oil and gas exploration or exploitation under this Act.
Marginal note:Liability arising from title
(3) Her Majesty is not liable, as the holder of title to reserve lands or to oil and gas found in those lands, in respect of any damage occasioned by oil and gas exploration or exploitation under this Act.
Marginal note:Past liability
28. Subject to section 27, this Act does not affect the liability of Her Majesty or a first nation for any act or omission occurring before the first nation’s transfer date.
Moneys
Marginal note:Additions to Schedule 2
29. (1) The Minister may, by order, add a first nation’s name to Schedule 2 following an affirmative vote of the first nation’s eligible voters on the ratification of the code prepared under section 11 and the approval of the payment of moneys to the first nation in accordance with the code.
Marginal note:Change of name
(2) On receipt of a resolution of the council of a first nation advising of a change in its name, the Minister may, by order, amend Schedule 2 accordingly.
Marginal note:Initial payment of moneys
30. (1) Following the addition of a first nation’s name to Schedule 2, the moneys held by Her Majesty for its use and benefit shall be paid to the first nation out of the Consolidated Revenue Fund in accordance with the payment agreement.
Marginal note:Loan guarantees
(2) The Minister may withhold, from moneys otherwise payable under subsection (1), the outstanding amount of any loans entered into by the first nation or members of the first nation and guaranteed by Her Majesty on the security of moneys held for the use and benefit of the first nation by Her Majesty under the Indian Act.
Marginal note:Subsequent payments
31. Following a payment of moneys under section 30, all moneys subsequently collected or received by Her Majesty for the use and benefit of the first nation shall be paid out of the Consolidated Revenue Fund to the first nation in accordance with the payment agreement.
Marginal note:Liability for payment
32. (1) Her Majesty is not liable for the decision by a first nation or its council to request a payment under section 7 or for any actions taken by the first nation or its council pursuant to the request.
Marginal note:Liability for future management
(2) Following the payment of moneys out of the Consolidated Revenue Fund into an account or a trust under section 30 or 31, Her Majesty is not liable for the payment or the management of those moneys.
Marginal note:Past liability
33. This Act does not affect the liability of Her Majesty or a first nation for any act or omission in respect of moneys occurring before a payment referred to in subsection 32(2).
POWERS RELATING TO OIL AND GAS
Marginal note:Ownership and management
34. (1) Subject to any other provision of this Act, a first nation named in Schedule 1 has the powers, rights and privileges of an owner in relation to oil and gas in the first nation’s managed area, including
(a) the power, in accordance with its oil and gas laws, to manage oil and gas exploration and exploitation in the managed area and to issue contracts in respect of the managed area; and
(b) the power, in accordance with its financial code, to collect oil and gas moneys from contract holders and to manage and expend those moneys.
Marginal note:Exercise of powers
(2) The powers of a first nation under subsection (1) shall be exercised by the council of the first nation or by any person, body or government to which the powers are delegated by the first nation’s oil and gas laws.
Marginal note:Registration of contracts
(3) A first nation shall send particulars relating to each contract issued by the first nation to the Minister for registration in the register established by the regulations or, if none has been established, in the applicable register referred to in subsection 26(1).
Marginal note:Issuance of contracts
(4) No contract may be issued for any activity in a managed area before oil and gas laws for the regulation of that activity are in force in the managed area.
Marginal note:Laws re exploration and exploitation
35. (1) Subject to sections 36 to 41 and 45, the council of a first nation named in Schedule 1 has the power, in accordance with its oil and gas code, to make laws respecting oil and gas exploration and exploitation in the first nation’s managed area, to the extent that those laws are not in relation to matters coming within the exclusive jurisdiction of a provincial legislature and may, in particular, make laws
(a) respecting the issuance and the terms and conditions of contracts, including
(i) any fees, rates, rents and royalties, including royalties in kind, to be reserved to the first nation by contract holders,
(ii) the interest payable on amounts owing to the first nation under a contract, and
(iii) administrative monetary penalties that may be assessed for failure to comply with the terms of a contract;
(b) respecting environmental assessments of projects in the managed area, and specifying circumstances in which an order may be made prohibiting the proponent of a project from undertaking work before the completion of an environmental assessment;
(c) respecting the protection of the environment from the effects of oil and gas exploration and exploitation in the managed area;
(d) respecting the conservation of oil and gas in the managed area;
(e) establishing offences punishable on summary conviction and imposing fines, impris-onment, restitution and community service for the contravention of oil and gas laws and orders referred to in paragraph (b);
(f) respecting the inspection, search, seizure and detention of property within or outside the managed area for the purpose of ensuring compliance with oil and gas laws and for the enforcement of those laws; and
(g) respecting the auditing of records of contract holders within or outside the managed area for the purposes of contract administration.
Marginal note:Coming into force
(2) A first nation may exercise its power to make oil and gas laws at any time after the date of an affirmative vote under section 21, but no oil and gas law has effect before the first nation’s transfer date except to the extent necessary to make it effective on that date.
Marginal note:Excluded jurisdiction
36. For greater certainty, the power of a first nation to make oil and gas laws does not extend to laws in relation to
(a) criminal law and criminal procedure;
(b) labour relations, working conditions and occupational health and safety;
(c) fish and fish habitat, within the meaning of the Fisheries Act, migratory birds, within the meaning of the Migratory Birds Convention Act, 1994, and species at risk, within the meaning of the Species at Risk Act; or
(d) international and interprovincial trade, including customs tariffs and export and import controls.
Marginal note:Projects to be subject to environmental assessment
37. (1) A first nation’s oil and gas laws must provide that no project, unless exempted by regulations made under subsection 63(2), may be undertaken until an environmental assessment of it has been conducted under those laws and every decision-making authority for the project has taken the results of the assessment into account in making any decision that would enable the project to be undertaken.
Marginal note:Laws in conformity with regulations
(2) The content of laws respecting environmental assessments of projects must conform with regulations made under subsection 63(1).
Marginal note:Joint assessments and delegation
(3) A decision-making authority for a project may, in respect of an environmental assessment of the project,
(a) enter into an agreement for the joint assessment of the project with any other person or body responsible for environmental assessments of that project under this Act or any other federal law; and
(b) delegate to another person or body any power, except the power to determine whether a project is to be carried out.
Marginal note:Environmental protection
38. Subject to the regulations, oil and gas laws must provide protection for the environment that is at least equal to that provided by the laws of the province applicable to oil and gas exploration and exploitation.
Marginal note:Oil and gas conservation
39. Subject to the regulations, oil and gas laws with respect to the conservation of oil and gas must not conflict with or be inconsistent with the laws of the province applicable to oil and gas exploration and exploitation.
Marginal note:Limitation on penalties
40. The punishment that may be imposed by an oil and gas law for an offence is
(a) if the act or omission constituting the offence results in damage to lands in the managed area,
(i) in the case of a first offence, a fine not exceeding $300,000 or imprisonment for a term not exceeding six months, or both, and
(ii) in the case of a second or subsequent offence, a fine not exceeding $600,000 or imprisonment for a term not exceeding one year, or both; and
(b) in any other case, a fine not exceeding $100,000 or a term of imprisonment not exceeding three months, or both.
Marginal note:Powers re inspections, searches, etc.
41. Oil and gas laws made under paragraph 35(1)(f) may not establish procedures inconsistent with those provided by the laws of the province in which the managed area is situated, nor may they confer powers greater than those of a public officer within the meaning of the Criminal Code.
Marginal note:Incorporation by reference
42. Oil and gas laws may incorporate by reference laws of the province in which the managed area is located as they are amended from time to time.
Marginal note:Agreement with province
43. An oil and gas law may, in accordance with an agreement between a first nation and the government of the province in which its managed area is located,
(a) specify the respective responsibilities of the first nation and the province for the administration and enforcement of oil and gas laws; and
(b) provide for access by officers of the first nation and the province, respectively, to the managed area for the enforcement of oil and gas laws.
Marginal note:Public access to oil and gas laws
44. (1) A first nation shall maintain at its principal administrative office the originals of its oil and gas code and its oil and gas laws, and all persons shall be given reasonable access to them during normal business hours.
Marginal note:Certified copies
(2) At the request of any person and on payment of a fee not exceeding the cost of the service, a first nation shall provide a copy of its oil and gas code or an oil and gas law certified to be a true copy by a person so authorized by the first nation.
Marginal note:Proof of laws
(3) In the absence of evidence to the contrary, a certified copy of an oil and gas code or an oil and gas law is proof of the original without proof of the signature or official character of the person appearing to have certified the copy.
Marginal note:Statutory Instruments Act
(4) The Statutory Instruments Act does not apply in respect of an oil and gas code or the oil and gas laws of a first nation.
Marginal note:International obligations
45. In exercising powers or making laws under this Act, a first nation shall comply with Canada’s international legal obligations and, if the exercise of any power or the making of any law is found to be inconsistent with Canada’s international legal obligations by a body established under an international treaty or by a court or tribunal of competent jurisdiction, the first nation shall remedy the inconsistency.
GENERAL
Marginal note:Legal capacity of first nations
46. A first nation named in Schedule 1 or 2 has the legal capacity necessary to exercise its powers and perform its duties and functions under this Act and, in particular, may acquire and hold property, real or personal and moveable or immoveable, enter into agreements and be a party to legal proceedings.
Marginal note:Public access to financial codes
47. (1) A first nation shall maintain at its principal administrative office the originals of a financial code referred to in subsection 10(2) or section 11, and any member of the first nation shall be given reasonable access to them during normal business hours.
Marginal note:Certified copies
(2) At the request of any member of the first nation and on payment of a fee not exceeding the cost of the service, a first nation shall provide a copy of a financial code referred to in subsection 10(2) or section 11 certified to be a true copy by a person so authorized by the first nation.
Marginal note:Proof of codes
(3) In the absence of evidence to the contrary, a certified copy of a financial code referred to in subsection 10(2) or section 11 is proof in any proceeding of the original without proof of the signature or official character of the person appearing to have certified the copy.
Marginal note:Statutory Instruments Act
(4) The Statutory Instruments Act does not apply in respect of a code referred to in subsection 10(2) or section 11.
Marginal note:Accounts — oil and gas
48. Books and accounts shall be maintained for a first nation’s oil and gas moneys, and annual financial statements shall be prepared in respect of those moneys, in accordance with the generally accepted accounting principles of the Canadian Institute of Chartered Accountants, by
(a) the council of the first nation if no trust is established to hold its oil and gas moneys; or
(b) the trustees of the trust and the council of the first nation if a trust is established.
Marginal note:Accounts — moneys
49. Books and accounts shall be maintained for moneys that have been paid to a first nation under sections 30 and 31, and annual financial statements shall be prepared in respect of those moneys, in accordance with the generally accepted accounting principles of the Canadian Institute of Chartered Accountants, by
(a) the council of the first nation if an account is established to hold moneys so paid; or
(b) the trustees of the trust and the council of the first nation if a trust is established to hold those moneys.
Marginal note:Audit of statements
50. (1) Financial statements prepared under section 48 or 49 shall be audited, in accordance with the generally accepted auditing standards of the Canadian Institute of Chartered Accountants, by an auditor who is a member in good standing of an institute or association of accountants incorporated under the laws of a province.
Marginal note:Access to statements
(2) Financial statements, as audited under subsection (1), shall be made available to first nation members within 120 days after the end of the fiscal year, and a copy shall be provided to any member on payment of a fee not exceeding the cost of providing the copy.
Marginal note:Expropriation by Canada
51. (1) Rights or interests under a contract, or other rights and interests in relation to oil or gas in a managed area, may be expropriated by Her Majesty in right of Canada for the use of a federal department or agency in accordance with the Expropriation Act and with the consent of the Governor in Council.
Marginal note:Compensation in land
(2) Compensation awarded to a first nation for the expropriation of a right or an interest under subsection (1) may be in the form of land of equal or greater value.
Marginal note:Compensation for reduced revenues
(3) For greater certainty, when a right or an interest is expropriated under subsection (1), any reduction in fees, rates, rents or royalties, including royalties in kind, or any other revenues, that would have been payable to the first nation in respect of the right or interest shall be taken into account in determining the compensation payable to the first nation under the Expropriation Act.
Marginal note:Prosecutions
52. (1) Offences for the contravention of a first nation’s oil and gas laws may be prosecuted by the first nation.
Marginal note:Prosecutors
(2) A first nation may, in the prosecution of offences for the contravention of its oil and gas laws,
(a) retain its own prosecutors;
(b) enter into an agreement with a provincial government for the use of provincial prosecutors; or
(c) enter into an agreement with the federal government for the use of agents engaged by that government.
Marginal note:Attorneys General
(3) This section does not preclude the prosecution of offences by the Attorney General of Canada or by the attorney general of a province.
Marginal note:Disposition of fines and property
53. A fine imposed on a person convicted of an offence under a first nation’s oil and gas laws shall be paid to the first nation, and any property forfeited by virtue of such a conviction shall be transferred to the first nation.
APPLICATION OF OTHER LAWS
Oil and Gas
Marginal note:Indian Act
54. (1) As of a first nation’s transfer date, the following do not apply in relation to the issuing of contracts in respect of the first nation’s managed area:
(a) sections 23, 28, 29, 34, 35, 37 to 41, 53, 54, 58 to 60 and 93 of the Indian Act;
(b) any regulations made under section 57 of that Act; and
(c) any regulations made under sections 42 and 73 of that Act, to the extent that those regulations are inconsistent with or conflict with the first nation’s oil and gas code or its oil and gas laws.
Marginal note:Indian Act
(2) Sections 61 to 69 of the Indian Act do not apply in respect of oil and gas moneys of a first nation as of the first nation’s transfer date.
Marginal note:Indian Act
(3) Subsection 89(1.1) of the Indian Act continues to apply in respect of leasehold interests in any first nation land that was designated land on the first nation’s transfer date.
Marginal note:Application
(4) A first nation’s oil and gas laws may extend the application of subsection 89(1.1) of the Indian Act, or any portion of it, to leasehold interests under contracts.
Marginal note:First Nations Land Management Act and Indian Oil and Gas Act
55. The First Nations Land Management Act and the Indian Oil and Gas Act do not apply in relation to oil and gas exploration or exploitation in a first nation’s managed area as of the first nation’s transfer date.
Marginal note:Environmental assessment laws
56. In the event of a conflict between a first nation’s oil and gas laws and any federal law providing for the environmental assessments of projects in their application to a project, the federal law prevails to the extent of the conflict.
Marginal note:Other environmental laws
57. In the event of a conflict between a first nation’s oil and gas laws and any federal law relating to the protection of the environment, the federal law prevails to the extent of the conflict.
Marginal note:Labour laws
58. This Act does not affect the application of any federal law in relation to labour relations, working conditions or occupational health and safety.
Marginal note:Inconsistencies among first nation laws
59. In the event of a conflict between oil and gas laws and the provisions of a law made by a first nation or its council under any other Act, the oil and gas laws prevail to the extent of the conflict.
Moneys
Marginal note:Indian Act
60. Sections 61 to 69 of the Indian Act do not apply in respect of moneys paid out of the Consolidated Revenue Fund to a first nation under section 30 or 31 of this Act.
Marginal note:Financial Administration Act
61. Moneys paid out of the Consolidated Revenue Fund to a first nation under section 30 or 31 are not public moneys within the meaning of the Financial Administration Act.
REGULATIONS
Marginal note:Regulations
62. The Governor in Council may make regulations
(a) governing the conduct of a vote under section 17 or 18, including
(i) the content of the question to be put to voters,
(ii) the information that must be provided to first nation members and other persons, respectively, before a vote and the periods during which it must be provided, and
(iii) the extent to which legal and financial advice must be provided or made available to first nation members before a vote;
(b) for the purposes of subsections 26(2) and 34(3),
(i) establishing a register for the registration of contracts,
(ii) providing for the transfer of existing contracts to that register from the Reserve Land Register maintained under section 21 of the Indian Act or, in the case of a first nation to which the First Nations Land Management Act applies, from the First Nations Land Register maintained under section 25 of that Act, and
(iii) respecting the effects of registering contracts in the register, including the priorities attached to registration;
(c) setting the minimal requirements of oil and gas laws made in relation to the protection of the environment, including by the incorporation by reference of provincial laws as amended from time to time;
(d) setting the minimal requirements of oil and gas laws made in relation to the conservation of oil and gas, including by the incorporation by reference of provincial laws as amended from time to time; and
(e) in the absence of an agreement with the government of a province referred to in section 43, establishing bodies, or designating existing bodies, to administer oil and gas laws that incorporate laws of the province.
Marginal note:Environmental assessment laws
63. (1) The Governor in Council may, on the recommendation of the Minister and the Minister of the Environment, make regulations respecting the content of oil and gas laws made in relation to environmental assessments, including
(a) the types or stages of environmental assessments, the circumstances in which each type or stage is to be conducted and the required elements of each type or stage;
(b) the appointment of persons or bodies that are to carry out each type or stage of assessment and the qualifications of persons appointed to those bodies;
(c) the factors to be considered in an assessment in determining whether a project should be recommended to proceed, to proceed with conditions or not to proceed or be referred to another stage of assessment;
(d) the powers and duties of decision-making authorities in relation to a project that has been assessed;
(e) the powers of persons or bodies referred to in paragraph (b) to compel witnesses to appear before them and give evidence, and to compel the production of documents;
(f) the participation of the public in each type or stage of assessment;
(g) access by the public to, and the confidentiality of, information that is submitted, collected or generated in an assessment;
(h) the immunity from liability of persons or bodies referred to in paragraph (b); and
(i) the kinds of exploration activities that are defined as projects for the purposes of assessments.
Marginal note:Exemptions from assessment
(2) The Governor in Council may, on the recommendation of the Minister and the Minister of the Environment, make regulations authorizing a first nation in its oil and gas laws to exempt from environmental assessment any class of project that
(a) ought not to be assessed, in the opinion of the Governor in Council, for reasons of national security;
(b) relates to installations used for oil or gas exploration or exploitation and will, in the opinion of the Governor in Council, have insignificant environmental effects; or
(c) has a total cost that is less than an amount prescribed by those regulations and meets environmental conditions prescribed by those regulations.
Marginal note:Comparable standards
(3) The requirements of any regulations made under subsection (1) must be generally comparable with those applicable in similar circumstances under the Canadian Environmental Assessment Act.
COMING INTO FORCE
Marginal note:Order in council
64. This Act comes into force on a day to be fixed by order of the Governor in Council.
SCHEDULE 1(Sections 2 and 22)
SCHEDULE 2(Section 29)
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