First Nations Oil and Gas and Moneys Management Act (S.C. 2005, c. 48)

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 Chartered Professional Accountants of Canada, 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 Chartered Professional Accountants of Canada, 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.