Assented to 2005-11-25
An Act respecting the regulation of commercial and industrial undertakings on reserve lands
The enactment provides for the establishment of regulatory regimes for commercial and industrial activities to be undertaken on reserve lands pursuant to agreements with first nations. As Parliament has exclusive jurisdiction to make laws in relation to Indian lands, some provincial regulatory laws do not apply on a reserve to the same extent as elsewhere in a province. To provide a means of closing that gap, the enactment authorizes regulatory regimes to be established in federal regulations, whether by the replication of provincial laws or otherwise.
WHEREAS first nations are planning commercial and industrial undertakings on reserve lands;
WHEREAS effective regulatory regimes are required for the governance of such undertakings;
WHEREAS first nations have requested the Government of Canada to provide for the establishment of such regimes to facilitate economic development on their lands;
WHEREAS existing Acts of Parliament do not provide sufficient authority for Canada or first nations to establish such regimes;
AND WHEREAS regulations in relation to a first nation’s reserve lands will be made under this Act only at the request of the first nation;
NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Marginal note:Short title
1. This Act may be cited as the First Nations Commercial and Industrial Development Act.
2. (1) The following definitions apply in this Act.
« première nation »
“first nation” means a band as defined in subsection 2(1) of the Indian Act.
« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
« terres de réserve »
“reserve lands” means lands within a reserve as defined in subsection 2(1) of the Indian Act.
Marginal note:References to province
(2) In this Act, references to a province, in relation to reserve lands, are to the province in which the reserve lands are situated.
Marginal note:Regulation- making power
3. (1) The Governor in Council may make regulations governing commercial or industrial undertakings that are located on reserve lands described in the regulations.
Marginal note:Included powers
(2) Regulations made under subsection (1) may
(a) designate a particular undertaking or a class of undertakings to which the regulations apply;
(b) confer any legislative, administrative, judicial or other power on any person or body that the Governor in Council considers necessary to effectively regulate the undertakings;
(c) confer on any person or body the power, exercisable in circumstances and subject to conditions similar to those applicable to the exercise of that power outside reserve lands under laws of the province,
(i) to make orders to cease any work, comply with any provision of the regulations or remedy the consequences of a failure to comply with the regulations, or
(ii) to do any work that the person or body considers necessary and to recover the costs of that work;
(d) fix, or prescribe the manner of calculating, the royalties or other charges to be paid to Her Majesty for the use and benefit of a first nation in respect of the exploitation of natural resources;
(e) fix, or prescribe the manner of calculating, the fees to be paid in respect of the undertakings to any person or body, and the rents or other charges to be paid to Her Majesty for the use and benefit of a first nation in respect of the use of the reserve lands;
(f) fix the rate of interest to be charged on amounts owing under the regulations;
(g) establish offences punishable on summary conviction for contraventions of the regulations, where similar acts or omissions constitute an offence under laws of the province applicable outside reserve lands, and set fines or terms of imprisonment or both for such offences not exceeding those applicable under laws of the province;
(h) establish administrative monetary penalties for contraventions of the regulations, where similar acts or omissions are punishable by similar penalties under laws of the province applicable outside reserve lands, and set the amount of those penalties not exceeding that imposed under laws of the province;
(i) confer on any person the power to inspect and search places and things and to seize and detain property, for the purpose of verifying compliance with the regulations, in circumstances and subject to conditions similar to those applicable to the exercise of that power under laws of the province applicable outside reserve lands;
(j) require that security be given or that a trust or other fund be established to secure the performance of any obligation arising under the regulations;
(k) prescribe rules respecting the confidentiality, or the disclosure, of any information obtained under the regulations;
(l) prescribe, or confer on any person or body the power to prescribe, rules of procedure for hearings to be held in relation to the undertakings, including rules for the issuance of subpoenas to require the appearance of persons and the production of documents and rules requiring that evidence be given under oath;
(m) set limits on the liability of, and establish defences and immunities for, any person or body exercising a power or performing a duty under the regulations;
(n) require that an assessment of the environmental effects of the undertakings be undertaken in circumstances where the Canadian Environmental Assessment Act does not apply, and establish a procedure to be followed in such assessments;
(o) with respect to reserve lands that have been designated for the purposes of an undertaking under subsection 38(2) of the Indian Act, authorize — to the extent permitted by the terms of the designation — the disposition by any person or body of any right or interest in those lands for the purposes of the undertaking, and specify the terms and conditions of such dispositions;
(p) exclude the reserve lands or the undertakings from the application of the Indian Oil and Gas Act; and
(q) provide for the relationship between the regulations and aboriginal and treaty rights referred to in section 35 of the Constitution Act, 1982, including limiting the extent to which the regulations may abrogate or derogate from those aboriginal and treaty rights.
Marginal note:Incorporation by reference
(3) The regulations may incorporate by reference any laws of the province, as amended from time to time, with any adaptations that the Governor in Council considers necessary.
Marginal note:Expanded meaning of undertaking
4. The Governor in Council may make regulations enlarging the meaning of the expression “commercial or industrial undertaking” for the purposes of this Act.
Marginal note:Conditions for making regulations
5. Regulations may not be made under section 3 in respect of undertakings on reserve lands of a first nation unless
(a) the Minister has received a resolution of the council of the first nation requesting that the Minister recommend to the Governor in Council the making of those regulations; and
(b) if the regulations specify a provincial official by whom, or body by which, a power may be exercised or a duty must be performed, an agreement has been concluded between the Minister, the province and the council of the first nation for the administration and enforcement of the regulations by that official or body.
Marginal note:Conflict with regulations under another Act
6. Regulations made under any other Act of Parliament prevail over regulations made under section 3 to the extent of any conflict or inconsistency between them, unless otherwise provided in the regulations made under that section.
Marginal note:Conflict with first nation laws or by-laws
7. Regulations made under section 3 prevail over any laws or by-laws made by a first nation to the extent of any conflict or inconsistency between them, unless those regulations provide otherwise.
Marginal note:Statutory Instruments Act
Marginal note:Federal Courts Act
9. (1) A provincial official or body that exercises a power or performs a duty under regulations made under section 3 is not a federal board, commission or other tribunal for the purposes of the Federal Courts Act.
Marginal note:Review or appeal in provincial courts
(2) Unless otherwise provided by regulations made under section 3, where a power or duty conferred or imposed by provincial law is incorporated by reference in the regulations, its exercise or performance pursuant to the regulations is subject to review by, or appeal to, the courts of the province in the same manner and to the same extent as if the provincial law applied of its own force.
Marginal note:Amounts received
10. Fees, charges, fines or other payments collected by a provincial official or body pursuant to regulations made under section 3 are not Indian moneys for the purposes of the Indian Act or public money for the purposes of the Financial Administration Act.
LIMITS ON LIABILITY, DEFENCES AND IMMUNITIES
Marginal note:Acts and omissions
11. In respect of any act or omission occurring in the exercise of a power or the performance of a duty under regulations made under section 3,
(a) Her Majesty in right of Canada is entitled to the same limits on liability, defences and immunities as apply to Her Majesty in right of the province under the laws of the province; and
(b) the person or body exercising the power or performing the duty is entitled, unless otherwise provided by the regulations, to the same limits on liability, defences and immunities as those that would apply to a person or body exercising such a power or performing such a duty under the laws of the province.
Marginal note:Right or interest in reserve lands
12. No civil proceeding may be brought, no order may be made and no fine or monetary penalty may be imposed in relation to reserve lands against Her Majesty in right of Canada under regulations made under section 3 based on any right or interest retained by Her Majesty in those lands.
COMING INTO FORCE
Marginal note:Order in council
13. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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