An Act to amend the Indian Oil and Gas Act (S.C. 2009, c. 7)
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Assented to 2009-05-14
2. Section 6 of the Act is amended by adding the following after subsection (1):
Marginal note:Approval or notice
(1.1) The Governor in Council may, by regulation,
(a) require that a power of the Minister under this Act in relation to first nation lands be exercised only if prior approval of the council of the first nation is obtained, if the council is first consulted or if prior notice is given to the council, as the case may be;
(b) require that any such power of the Minister be exercised only if prior consent is given by any first nation member who is in lawful possession of the first nation lands; and
(c) require that notice be given to the council of the first nation after the Minister exercises any such power.
3. The Act is amended by adding the following after section 6:
Marginal note:Canada Labour Code
7. This Act does not affect the application of the Canada Labour Code.
INSPECTION, AUDIT AND EXAMINATION
Marginal note:Designation of inspectors
8. (1) The Minister may designate any person as an inspector for the purpose of verifying compliance with this Act and the regulations.
Marginal note:Certificate
(2) The Minister shall provide every inspector with a certificate of designation, which the inspector shall, on request, show to the person appearing to be in charge of a place being inspected.
Marginal note:Inspection on first nation lands
9. (1) An inspector and any person accompanying an inspector may, at any reasonable time, enter and inspect any place on first nation lands, other than a dwelling-place, if the inspector has reasonable grounds to believe that an activity to which this Act applies is being carried on, or has been carried on, in that place.
Marginal note:Outside first nation lands
(2) An inspector and any person accompanying an inspector may at any reasonable time, for the purpose of verifying the quantity or quality of oil or gas recovered from first nation lands or the amount of any costs or allowances prescribed under subparagraph 4.1(1)(g)(ii), enter and inspect any place outside first nation lands where such oil or gas is handled, treated or processed or its volume measured.
Marginal note:Powers of inspectors
(3) An inspector conducting an inspection of a place and any person accompanying the inspector may
(a) examine anything found in the place that is used in exploration for or exploitation of oil or gas, or observe any operation in the place that is related to such exploration or exploitation;
(b) take samples of anything relevant to the administration of this Act or the regulations and dispose of them afterwards;
(c) conduct any tests or take any measurements;
(d) examine any documents or information found in the place that the inspector has reasonable grounds to believe are relevant to the administration of this Act or the regulations and copy the documents or information, take extracts from them or require any person in the place to provide copies of them;
(e) use or cause to be used any copying equipment at the place to reproduce such documents and remove the copies for the purpose of examination;
(f) take photographs and make sketches or video recordings;
(g) use or cause to be used any computer system or data processing system at the place to search and examine any data contained in or available to the system;
(h) obtain, in the form of a printout or other output, a copy of any data referred to in paragraph (g) that the inspector has reasonable grounds to believe are relevant to the administration of this Act or the regulations, and remove it for the purpose of examination; and
(i) require any person present in the place to accompany the inspector during the inspection and require that person to answer all proper questions and to give the inspector all reasonable assistance.
Marginal note:Audits and examinations
10. (1) A person authorized by the Minister to do so may, at any reasonable time,
(a) enter any place where a business is carried on, other than a dwelling-place, in which the person has reasonable grounds to believe that there are documents or information required to be kept under the regulations; and
(b) conduct an audit or examination of any documents or information found in the place that the person has reasonable grounds to believe are relevant to the administration of this Act or the regulations.
Marginal note:Powers of authorized persons
(2) A person conducting an audit or examination under subsection (1) may
(a) copy or take extracts of documents or information referred to in paragraph (1)(b);
(b) use or cause to be used any copying equipment at the place to reproduce any such documents and remove the copies for the purposes of the audit or examination;
(c) use or cause to be used any computer system or data processing system at the place to search and examine any data contained in or available to the system;
(d) obtain, in the form of a printout or other output, a copy of any data referred to in paragraph (c) that the person has reasonable grounds to believe are relevant to the administration of this Act or the regulations, and remove it for the purposes of the audit or examination; and
(e) require any person present in the place to remain there during the audit or examination and require that person, or any other person having control of such documents or information, to answer all proper questions and to give all reasonable assistance to the authorized person.
Marginal note:Persons accompanying
(3) Subject to any conditions prescribed by the regulations, a person conducting an audit or examination under subsection (1) may be accompanied by any person so authorized by the Minister.
Marginal note:Demand to produce documents
11. The Minister may, for the purposes of an audit or examination, order any person who is required by the regulations to keep documents or information to produce — at the place, within the time and in the manner specified by the Minister — any document or information that the Minister has reasonable grounds to believe is relevant to the administration of this Act or the regulations.
Marginal note:Compliance order
12. (1) A judge may, on application, order a person to provide to the Minister, an inspector or a person conducting an audit or examination any access, assistance, document or information that the person was required or ordered to provide under section 9, 10 or 11, unless — in the case of a document or information — the document or information is protected from disclosure by the privilege between legal advisers and their clients.
Marginal note:Conditions
(2) The judge making an order under subsection (1) may impose any conditions in respect of the order that the judge considers appropriate.
Marginal note:Contempt of court
(3) If a person fails or refuses to comply with an order under subsection (1), a judge may find the person in contempt of court and the person is subject to the processes and the punishments of the court to which the judge is appointed.
Marginal note:Appeal
(4) An order by a judge under subsection (1) may be appealed to a court having appellate jurisdiction over decisions of the court to which the judge is appointed, but an appeal does not suspend the execution of the order unless it is so ordered by a judge of the appellate court.
Definition of “judge”
(5) In this section, “judge” means a judge of a superior court of the province in which the matter arises or a judge of the Federal Court.
Marginal note:Prohibition
13. (1) No person shall interfere with or obstruct any person doing anything the person is authorized to do under this Act.
Marginal note:Compliance
(2) Every person shall, unless unable to do so, do everything that the person is required to do under subsection 9(3) or 10(2) or section 11.
SEARCH AND SEIZURE
Marginal note:Designation of enforcement officers
14. (1) The Minister may designate any person as an enforcement officer for the purpose of enforcing this Act and the regulations.
Marginal note:Public officer
(2) For greater certainty, an enforcement officer is a public officer for the purposes of sections 487, 487.11 and 489 of the Criminal Code.
Marginal note:Certificate
(3) The Minister shall provide every enforcement officer with a certificate of designation, which the officer shall, on request, show to the person appearing to be in charge of a place being searched.
DELEGATION
Marginal note:Ministerial powers
15. Without derogating from paragraph 24(2)(d) of the Interpretation Act in relation to any other power of the Minister under this Act, the Minister may delegate in writing any of the Minister’s powers under subsections 8(1), 10(1) and (3) and 14(1) to any person employed in the Department of Indian Affairs and Northern Development.
UNAUTHORIZED EXPLORATION AND EXPLOITATION
Marginal note:Prohibition
16. No person shall explore for or exploit oil or gas situated in first nation lands except as authorized by or under this Act.
OFFENCES AND PUNISHMENT
Marginal note:Offence
17. (1) A person who contravenes any provision of this Act or the regulations, other than a provision in relation to the payment of royalties or other amounts, or who fails to do anything ordered by the Minister under this Act, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $100,000.
Marginal note:False information
(2) A person who provides information under this Act, knowing that it is false or misleading, or who knowingly misrepresents or fails to disclose a material fact, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding the greater of $100,000 and any amount that was not paid by reason of the commission of the offence.
Marginal note:Continuing offences
18. (1) When an offence under this Act is committed on more than one day or is continued for more than one day, it is deemed to be a separate offence for each day on which it is committed or continued.
Marginal note:Officers, etc., of corporations
(2) Any officer, director or agent of a corporation who directed, authorized, assented to, acquiesced in or participated in the commission of an offence by the corporation under this Act is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
Marginal note:Offences by employees or agents
(3) In the prosecution of a corporation for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the corporation, whether or not the employee or agent is identified or prosecuted.
Marginal note:Exception to defence
(4) Subsection (3) does not apply to a corporation that establishes that it exercised due diligence to prevent the commission of the offence.
Marginal note:Time limit
19. (1) No prosecution for an offence under this Act may be commenced later than two years after the day on which the Minister became aware of the facts giving rise to the offence or later than 10 years after the day on which the offence was committed, whichever is earlier.
Marginal note:Time limit — Contraventions Act
(2) No proceedings may be commenced under the Contraventions Act in respect of an offence under this Act later than two years after the day on which the offence was committed.
Marginal note:Compensation for loss of property
20. (1) When a person has been convicted of an offence for the contravention of section 16 in relation to oil or gas exploration, the drilling or testing of a well or the recovery of oil or gas, the convicting court may, at the time sentence is imposed and on the application of Her Majesty in right of Canada or the first nation affected, order the offender to pay to Her Majesty in right of Canada for the benefit of the first nation an amount by way of compensation for any ensuing loss of oil or gas suffered by the first nation or any ensuing reduction in the value of first nation lands.
Marginal note:Enforcement
(2) If compensation is not paid within 60 days after the issuance of an order under subsection (1), the applicant may, by filing the order, enter the amount of the compensation as a judgment in the superior court of the province in which the trial was held, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender by that court in civil proceedings.
Marginal note:Appeal rights
(3) An order may not be filed under subsection (2) until all rights of the offender to appeal the conviction are exhausted.
ADMINISTRATIVE MONETARY PENALTIES
Marginal note:Regulations
21. (1) The Governor in Council may make regulations
(a) designating any provision of this Act or the regulations as a provision whose contravention is a violation that may be proceeded with under sections 22 to 28;
(b) prescribing for each violation a penalty not exceeding $10,000;
(c) respecting the service of documents authorized or required to be served under sections 22 to 28, including their manner and proof of service and the circumstances under which documents are deemed to be served;
(d) prescribing the manner of making representations to the Minister under section 23; and
(e) generally, for carrying out the purposes and provisions of this section and sections 22 to 28.
Marginal note:Commission of violation
(2) The contravention of any provision that is designated under paragraph (1)(a) constitutes a violation and the person who commits the violation is liable to the penalty prescribed by the regulations.
Marginal note:Continuing violation
(3) A violation that is continued on more than one day constitutes a separate violation for each day on which it is continued, but the cumulative penalty imposed for those violations shall not exceed $10,000.
Marginal note:Manner of proceeding
(4) A contravention of a provision designated under paragraph (1)(a) may be proceeded with either as a violation or as an offence, but proceeding with it in one manner precludes proceeding in the other.
Marginal note:Notice of violation
22. (1) When the Minister believes on reasonable grounds that a person has committed a violation, the Minister may issue a notice of violation and cause it to be served on the person.
Marginal note:Contents of notice
(2) A notice of violation must name the person believed to have committed the violation, identify the violation and notify the person
(a) of the penalty prescribed for the violation by the regulations;
(b) that the person may, within 30 days after the day on which the notice is served — or within any longer period specified by the regulations — pay the penalty or make representations to the Minister in respect of the violation;
(c) that, if the person does not pay the penalty or make representations in accordance with the regulations, the person will be deemed to have committed the violation and will be liable for the penalty; and
(d) that, if the person pays the penalty specified in the notice of violation, the person will be deemed to have committed the violation and proceedings in respect of it will be ended.
Marginal note:Payment of penalty
23. (1) A person served with a notice of violation who pays the penalty specified in the notice is deemed to have committed the violation, and proceedings in respect of the violation are ended.
Marginal note:Representations to Minister
(2) A person served with a notice of violation may, in accordance with the regulations, make representations to the Minister in respect of the violation within 30 days after the day on which the notice of violation is served — or within any longer period specified by the regulations — in which case the Minister shall determine on a balance of probabilities whether the person committed the violation.
Marginal note:Notice of decision
(3) The Minister shall issue and cause to be served on a person referred to in subsection (2) a notice of any decision made under that subsection, and the notice shall inform the person of their right, if any, to appeal the decision under section 24.
Marginal note:Failure to make representations
(4) A person who does not make representations in accordance with the regulations within 30 days after the day on which the notice of violation is served — or within any longer period specified by the regulations — is deemed to have committed the violation.
Marginal note:Payment of penalty
(5) Where the Minister determines that a person has committed a violation, or where a person is deemed by subsection (4) to have committed one, the person shall pay the penalty specified in the notice of violation.
Marginal note:Right of appeal
24. (1) A person who is determined by the Minister to have committed a violation may, within 30 days after the day on which the notice of that decision is served, appeal the decision to the Federal Court.
Marginal note:Powers of Court
(2) On an appeal, the Federal Court may confirm or set aside the decision of the Minister.
Marginal note:Debts to Her Majesty
25. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and is recoverable as such in the Federal Court or any other court of competent jurisdiction.
Marginal note:Certificate of default
(2) In case of default of payment of any part of a debt referred to in subsection (1), the Minister may issue a certificate of default attesting to the amount unpaid.
Marginal note:Registration in Federal Court
(3) Registration in the Federal Court of a certificate of default has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
Marginal note:Violations not offences
26. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Evidence
27. A notice of violation purporting to be issued under subsection 22(1), a notice of decision purporting to be issued under subsection 23(3) or a certificate of default purporting to be issued under subsection 25(2) is admissible in evidence in a proceeding in respect of a violation without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Time limit
28. (1) No notice of violation may be issued later than two years after the day on which the Minister became aware of the facts giving rise to the violation.
Marginal note:Certificate of Minister
(2) A document appearing to have been issued by the Minister, certifying the day on which the Minister became aware of the facts giving rise to a violation, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
REPORT TO PARLIAMENT
Marginal note:Report
28.1 At least every two years after the coming into force of the present section, the Minister shall prepare a report on the administration of this Act during the two preceding years and shall table a copy of the report in each House of Parliament within the first fifteen days that it is sitting after the completion of the report, which shall include a summary addressing the following matters:
(a) the progress of the consultations mentioned in paragraph 6(1.1)(a) and a list of concerns raised during such consultations;
(b) any proposed regulation to be made under subsection 6(1.1); and
(c) any regulations made under this Act and describe any variations in the regulations from province to province.
TRANSITIONAL
Marginal note:Prior amounts owing
29. If any amount is owing under this Act on the day on which this section comes into force, section 5.1 applies in respect of that amount and to any interest owing on it whether or not its recovery was previously barred by an Act of Parliament or a law of a province.
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