C-5
First Session, Fortieth Parliament,
57 Elizabeth II, 2008
HOUSE OF COMMONS OF CANADA
BILL C-5
An Act to amend the Indian Oil and Gas Act
first reading, December 3, 2008
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND FEDERAL INTERLOCUTOR FOR MÉTIS AND NON-STATUS INDIANS
90469
SUMMARY
This enactment amends the Indian Oil and Gas Act to clarify and expand the existing regulation-making powers and to add new ones, particularly with respect to licences, permits and leases for the exploration and exploitation of oil and gas on reserve lands and the determination and payment of oil and gas royalties. It also puts in place sanctions for contraventions of the Act as well as provisions for its enforcement.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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1st Session, 40th Parliament,
57 Elizabeth II, 2008
house of commons of canada
BILL C-5
An Act to amend the Indian Oil and Gas Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. I-7
INDIAN OIL AND GAS ACT
1999, c. 31, s. 137(E)
1. The heading before section 2 and sections 2 to 5 of the Indian Oil and Gas Act are replaced by the following:
Explanatory NotesIndian Oil and Gas Act
Clause 1: Existing text of the heading and sections 2 to 5:
INTERPRETATION
2. In this Act,
“gas” means natural gas that is or can be produced from a well, both before and after it has been subjected to any processing, and includes marketable gas and all fluid components not defined as oil;
“Indian lands” means lands reserved for the Indians, including any interests therein, surrendered in accordance with the Indian Act and includes any lands or interests in lands described in any grant, lease, permit, licence or other disposition referred to in section 5;
“Minister” means the Minister of Indian Affairs and Northern Development;
“oil” means crude oil and all other hydrocarbons, regardless of gravity, that are or can be produced from a well in liquid form including crude bitumen but excluding condensate.
GENERAL
3. The Governor in Council may make regulations
(a) respecting the granting of leases, permits and licences for the exploitation of oil and gas in Indian lands, and the terms and conditions thereof;
(b) respecting the disposition of any interest in Indian lands necessarily incidental to the exploitation of oil and gas in those lands, and the terms and conditions thereof;
(c) providing for the seizure and forfeiture of any oil or gas taken in contravention of any regulation made under this section or any lease, licence or permit granted under such regulation;
(d) prescribing the royalties on oil and gas obtained from Indian lands;
(e) prescribing the fine not exceeding five thousand dollars that may be imposed on summary conviction for contravention of any regulation made under this section or failure to comply with any lease, permit or licence granted pursuant to any regulation under this section; and
(f) generally for carrying out the purposes of this Act and for the exploitation of oil and gas in Indian lands.
4. (1) Notwithstanding any term or condition in any grant, lease, permit, licence or other disposition or any provision in any regulation respecting oil or gas or both oil and gas or the terms and conditions of any agreement respecting royalties in relation to oil or gas or both oil and gas, whether granted, issued, made or entered into before or after December 20, 1974, but subject to subsection (2), all oil and gas obtained from Indian lands after April 22, 1977 is subject to the payment to Her Majesty in right of Canada, in trust for the Indian bands concerned, of the royalties prescribed from time to time by the regulations.
(2) The Minister may, with the approval of the council of the band concerned, enter into a special agreement with any person for a reduction or an increase, or a variation in the basis of calculation of royalties payable under subsection (1).
5. Every grant, lease, permit, licence or other disposition respecting the exploitation of oil or gas in Indian lands, whether granted, issued, made or entered into before or after December 20, 1974, and, without restricting the generality of the foregoing, any grant, lease, permit, licence or other disposition respecting oil or gas or both oil and gas issued or made or purported to be issued or made pursuant to any other regulation or order made under the provisions of the Indian Act is deemed to be subject to any regulations made under this Act.
Notes explicativesLoi sur le pétrole et le gaz des terres indiennes
Article 1 : Texte de l’intertitre et des articles 2 à 5 :
DÉFINITIONS
2. Les définitions qui suivent s’appliquent à la présente loi.
« gaz » Le gaz naturel tiré ou susceptible d’être tiré d’un puits, avant et après traitement. Sont assimilés au gaz le gaz commercialisable et tous les composants fluides exclus de la définition de « pétrole ».
« ministre » Le ministre des Affaires indiennes et du Nord canadien.
« pétrole » Le pétrole brut ainsi que tous les autres hydrocarbures qui, indépendamment de leur densité, sont tirés ou susceptibles d’être tirés d’un puits à l’état liquide. Est assimilé au pétrole le bitume brut mais non le condensat.
« terres indiennes » Les terres réservées aux Indiens et tous droits y afférents cédés conformément à la Loi sur les Indiens, y compris les terres ou les droits fonciers visés par une concession, un bail, un permis, une licence ou tout autre acte d’aliénation visé à l’article 5.
DISPOSITIONS GÉNÉRALES
3. Le gouverneur en conseil peut prendre des règlements :
a) concernant l’octroi et les modalités de baux, de permis et de licences pour l’exploitation du pétrole et du gaz des terres indiennes;
b) concernant l’aliénation de droits sur des terres indiennes, lorsque ces droits sont nécessairement accessoires à l’exploitation du pétrole et du gaz sur ces terres, ainsi que les modalités de cette aliénation;
c) prévoyant la saisie et la confiscation du pétrole ou du gaz extrait en contravention avec un règlement pris en vertu du présent article ou un bail, un permis ou une licence accordés en vertu d’un tel règlement;
d) prescrivant les redevances sur le pétrole et le gaz tirés des terres indiennes;
e) prescrivant l’amende maximale de cinq mille dollars, qui peut être imposée, sur déclaration de culpabilité par procédure sommaire, pour la violation d’un règlement pris en vertu du présent article ou pour l’inobservation d’un bail, d’un permis ou d’une licence, consentis conformément à un règlement pris en vertu du présent article;
f) d’une manière générale, concernant l’application de la présente loi et l’exploitation du pétrole et du gaz des terres indiennes.
4. (1) Nonobstant les modalités d’une concession, d’un bail, d’un permis, d’une licence ou d’un autre acte d’aliénation, les dispositions d’un règlement sur le pétrole ou sur le gaz ou les modalités d’un accord sur les redevances applicables au pétrole ou au gaz, qu’ils soient ou non survenus avant le 20 décembre 1974, mais sous réserve du paragraphe (2), le pétrole et le gaz tirés des terres indiennes après le 22 avril 1977 sont assujettis au paiement à Sa Majesté du chef du Canada, en fiducie pour les bandes indiennes concernées, des redevances réglementaires.
(2) Le ministre peut, lorsqu’il y est autorisé par le conseil de la bande intéressée, conclure avec quiconque un accord spécial portant réduction ou augmentation des redevances payables en vertu du paragraphe (1) ou modification de leur base de calcul.
5. Les concessions, baux, permis, licences ou autres actes d’aliénation concernant l’exploitation du pétrole ou du gaz des terres indiennes, qu’ils soient ou non survenus avant le 20 décembre 1974, et notamment les concessions, baux, permis, licences ou autres actes d’aliénation concernant du pétrole ou du gaz, accordés ou conclus ou ostensiblement accordés ou conclus en application d’un règlement ou d’un décret pris en vertu de la Loi sur les Indiens, sont censés être assujettis aux règlements pris en vertu de la présente loi.
INTERPRETATION AND APPLICATION
Definitions
2. (1) The following definitions apply in this Act.
“approval”« approbation »
“approval”, in relation to the council of a first nation, means approval evidenced by a written resolution of the council or, if the council has delegated its authority to any individual or corporation, approval in writing signed by that individual or by an individual authorized to sign for that corporation.
“condensate”« condensat »
“condensate” means a liquid mixture, consisting mainly of pentanes and heavier hydrocarbons, that is condensed from natural gas and that can be recovered at a well.
“contract”« contrat »
“contract” means a licence, permit, lease or other instrument that confers a surface or subsurface right or interest in first nation lands, or an option to acquire such a permit or lease, that is granted under this Act for the purpose of oil or gas exploration or exploitation.
“council”« conseil »
“council”, in relation to a first nation, has the same meaning as the expression “council of the band” in the Indian Act.
“exploitation”« exploitation »
“exploitation”, in relation to oil and gas, means the drilling or testing of a well or production, recovery or subsurface storage, and includes the injection of a substance into an oil or gas reservoir and the subsurface disposal of a substance, but does not include refining.
“exploration”« exploration »
“exploration” means any operation to assess the geological conditions of the subsurface for the presence of oil or gas or any activity connected with such assessment, including the drilling of a test hole to a depth no greater than that prescribed by regulation.
“first nation”« première nation »
“first nation” means a band within the meaning of the Indian Act.
“first nation lands”“terres de la première nation”
“first nation lands” means
(a) reserve lands that have been surrendered, other than absolutely, under the Indian Act for a purpose that includes oil or gas exploration or exploitation;
(b) lands that have been absolutely surrendered under the Indian Act but not sold;
(c) subsurface rights and interests in lands that have been absolutely surrendered under the Indian Act and of which only the surface rights and interests have been sold; or
(d) rights and interests in reserve lands that have been granted to Her Majesty in right of Canada for oil or gas exploration or exploitation pursuant to a land code adopted under the First Nations Land Management Act.
“first nation member”« membre de la première nation »
“first nation member”, in relation to a first nation, means a person whose name appears on the band list of the first nation or who is entitled to have their name appear on that list.
“gas”« gaz »
“gas” means natural gas — including natural gas from a coal bed — that can be recovered from a well or any component of it, including condensate and marketable gas.
“inspector”« inspecteur »
“inspector” means an inspector designated under section 8.
“lawful possession”« possession légale »
“lawful possession”, in relation to first nation lands, means “lawful possession” within the meaning of subsection 20(1) or section 22 of the Indian Act.
“Minister”« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development. 
“oil”« pétrole »
“oil” means a mixture of hydrocarbons that can be recovered from a well in liquid form, with the exception of condensate.
“operator”« exploitant »
“operator” means a person who is engaged in exploration for or exploitation of oil or gas situated in first nation lands.
Delegation by council
(2) The council of a first nation may by written resolution delegate to any person any power of the council, or any right of the council to be consulted or notified, under this Act.
Amounts owing
(3) For the purposes of this Act,
(a) a reference to payment of a royalty means payment of an amount equal to the value of the royalty or, if required by or under the regulations, payment of the royalty in kind; and
(b) a reference to an amount owing includes the value of a royalty that is owing.
Pooled oil or gas
(4) A reference in this Act to oil or gas recovered from first nation lands includes oil or gas that is attributed to those lands under regulations made pursuant to paragraph 4.1(1)(s).
Instruments under other Acts
3. (1) Any licence, permit, lease or other instrument granted under any other Act of Parliament for the purpose of exploration for or exploitation of oil or gas situated in first nation lands — other than an instrument granted under the First Nations Oil and Gas and Moneys Management Act or an instrument granted to a person other than Her Majesty in right of Canada under the First Nations Land Management Act — is subject to this Act as if the instrument were a contract granted under this Act.
Excluded lands
(2) The Governor in Council may, by regulation, exclude from the application of this Act any first nation lands that, in the Governor in Council’s opinion, contain crude bitumen that is capable of being recovered by mining.
ROYALTIES
Royalties
4. (1) Despite the provisions of any contract but subject to subsection (2), whenever oil or gas is recovered from first nation lands, there is reserved to Her Majesty in right of Canada in trust for the first nation concerned a royalty consisting of the share of the oil or gas determined under the regulations, which the contract holder shall pay to Her Majesty in right of Canada in trust for the first nation in accordance with the regulations.
Special agreements
(2) The Minister may, with the approval of the council of a first nation, enter into a special agreement with any person, for any period and subject to any conditions set out in the agreement, for a reduction or increase in the royalty otherwise payable under subsection (1) or a variation in the method of determining that royalty.
REGULATIONS
Regulations
4.1 (1) The Governor in Council may make regulations respecting exploration for and exploitation of oil or gas situated in first nation lands, including regulations
(a) respecting contracts and classes of contracts, including regulations in relation to
(i) the granting, amendment, renewal, assignment and consolidation of contracts,
(ii) the terms and conditions of contracts and the rights and obligations of contract holders, and
(iii) the determination of rents or other amounts payable in respect of contracts, including by means of arbitration;
(b) respecting the suspension and cancellation of contracts, and authorizing the Minister to suspend or cancel contracts in specified circumstances;
(c) respecting the surrender of rights and interests under contracts, subject to any conditions that the Minister may specify;
(d) respecting the conversion of contracts from one class to another or the continuation of contracts, subject to any conditions that the Minister may specify, and authorizing the Minister to convert or continue a contract when the Minister is satisfied that conditions specified by regulation have been met;
(e) respecting the determination of the quantity or quality of oil or gas recovered under a contract;
(f) respecting the determination of the value of oil or gas recovered under a contract, including its determination where oil or gas is the subject of a transaction between related parties and, for that purpose, defining “related parties”;
(g) respecting royalties on any class of oil or gas recovered from first nation lands, including regulations
(i) determining the share of oil or gas that constitutes a royalty and determining the value of that royalty,
(ii) prescribing the costs and allowances that may be taken into account in determining the royalty or the value of the royalty,
(iii) respecting the payment of royalties in cash or in kind, and authorizing the Minister to direct payment of a royalty in kind,
(iv) specifying the circumstances in which the payment of a royalty is waived on oil or gas that is consumed as fuel in drilling for, producing, recovering, treating or processing oil or gas,
(v) respecting the sale or other disposition of the share of oil or gas that constitutes a royalty, and
(vi) respecting the assessment by the Minister of royalties owing by a contract holder;
(h) respecting the payment of interest on amounts owing under this Act and establishing the rate of interest or the manner of determining it, including the application of compound interest;
(i) specifying the circumstances in which a compensatory royalty is payable and prescribing the amount of the royalty or the manner of determining it;
(j) respecting the order in which payments received in respect of a contract will be applied towards royalties, rents, interest, penalties or other amounts owing by the contract holder;
(k) respecting the security to be provided for the performance of obligations under this Act or a contract, including the amount of the security or the manner of determining the amount, and specifying the circumstances and manner in which it will be returned or realized;
(l) prescribing measures that contract holders may be required to take when the Minister determines that there is a risk of drainage of oil or gas by a well outside a contract area, whether the well is in or outside first nation lands;
(m) authorizing the Minister in specified circumstances to order the submission of plans for the exploitation of oil or gas situated in first nation lands, respecting the content of such plans and their approval by the Minister, requiring contract holders to comply with plans approved by the Minister and authorizing the Minister to order the modification of such plans;
(n) respecting surveys of first nation lands for the purposes of this Act and authorizing the Minister to require surveys to be carried out in prescribed circumstances;
(o) respecting the keeping, or the submission to the Minister or the council of a first nation, of documents and information related to the administration of this Act or the regulations by contract holders, operators, persons whose rights have been combined with those of a contract holder pursuant to regulations made under paragraph (s) or persons who have acquired oil or gas recovered from first nation lands or a right to such oil or gas, and authorizing the Minister on application to vary the location at which any such documents or information are to be kept;
(p) respecting audits and examinations of documents and information referred to in paragraph (o) by first nations pursuant to agreements with the Minister, for the purpose of verifying the royalties payable on oil or gas recovered from first nation lands;
(q) respecting inspections, by persons authorized by a written resolution of a first nation council, of facilities and operations on first nation lands that are related to exploration for or exploitation of oil or gas, in order to monitor compliance with this Act and the regulations;
(r) respecting the confidentiality of and access to information obtained under this Act;
(s) respecting the combining, with the approval of the Minister, of rights to oil or gas under a contract with rights to oil or gas under another contract, or with rights to oil or gas situated outside first nation lands, for the purpose of the joint exploitation of oil or gas, the prevention of waste or the sharing of oil or gas;
(t) respecting the abandonment of oil and gas wells or their conversion to uses incidental to the exploitation of oil or gas, and authorizing the Minister to approve such abandonments or conversions;
(u) establishing fees payable by individuals, corporations, partnerships or trusts in relation to contracts or for services provided in the administration of this Act;
(v) requiring, to the extent that it is practi- cable and reasonably efficient, safe and economical to do so, an operator to employ persons who are resident on reserves that include first nation lands on which the exploration or exploitation is being conducted;
(w) specifying powers of the Minister that may only be exercised following notice or a hearing and prescribing the manner of giving notice, the content of notices and the procedure governing hearings;
(x) respecting the protection of the environment from the effects of exploration for or exploitation of oil or gas situated in first nation lands, respecting environmental audits and authorizing the Minister to require such audits to be carried out in specified circumstances at the expense of contract holders;
(y) respecting the conservation and equitable production of oil or gas situated in first nation lands; and
(z) generally for carrying out the purposes of this Act.
Provincial variations
(2) Regulations made under subsection (1) may vary from province to province.
Incorporation by reference
4.2 (1) Regulations made under subsection 4.1(1) — other than regulations made under paragraphs 4.1(1)(a) to (d), (f) to (r), (v) and (w) — may incorporate by reference laws of a province as amended from time to time, with any adaptations that the Governor in Council considers appropriate.
Powers of provincial officials and bodies
(2) Regulations incorporating laws of a province may confer any power or impose any duty that the Governor in Council considers necessary on any provincial official or body, to be exercised or performed on behalf of the federal government in the same circumstances and subject to the same conditions as those governing the exercise of that power or the performance of that duty under the laws of the province.
Agreement with province
(3) The Minister may enter into an agreement with the government of a province, or with a public body established by the laws of a province, respecting the administration or enforcement on first nation lands of any laws of the province that are incorporated by the regulations, including the exchange of information related to administration and enforcement of those laws.
Inconsistency with regulations under other Acts
(4) Regulations made under any other Act of Parliament prevail over laws of a province that are incorporated by the regulations made under this Act to the extent of any inconsistency, unless the incorporating regulations provide otherwise.
Review by provincial courts
(5) Unless the regulations provide otherwise, where a power is conferred or a duty is imposed by laws of a province that are incorporated by the regulations, the exercise of that power or the performance of that duty 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 laws of the province applied of their own force.
Moneys
(6) Unless otherwise provided by the regulations, moneys collected by a provincial official or body under laws of a province that are incorporated by the regulations are not Indian moneys for the purposes of the Indian Act or public money for the purposes of the Financial Administration Act.
Immunity — acts or omissions
(7) In respect of an act or omission occurring in the exercise of a power or the performance of a duty by a provincial official or body under laws of a province that are incorporated by the regulations, the official or body exercising that power or performing that duty is entitled, unless the regulations provide otherwise, to the same limits on liability, defences and immunities as those that would apply under the laws of the province to an official or body exercising a like power or performing a like duty.
Inconsistency with first nation laws
4.3 Regulations made under this Act prevail over any by-laws or other laws made by a first nation under another Act of Parliament to the extent of any inconsistency between them, unless otherwise provided by regulations made under this Act.
GENERAL
Powers of Minister
5. (1) The Minister may
(a) order the suspension of exploration for or exploitation of oil or gas situated in first nation lands or order a contract holder or operator to take remedial action if, in the Minister’s opinion, the exploration or exploitation
(i) presents a danger to property, risks the wasting of oil or gas or risks disturbing or damaging an oil or gas reservoir, the surface of land or the environment, or
(ii) presents a risk of harm to a site of palaeontological, archaeological, ethnological or historical significance or to a site that is of cultural, spiritual or ceremonial importance to the first nation;
(b) authorize the resumption of any exploration or exploitation suspended under paragraph (a) if, in the Minister’s opinion, the danger or risk no longer exists and if any remedial action ordered has been taken to the Minister’s satisfaction;
(c) despite the regulations, where lands have been set apart as a reserve for purposes of the implementation of an agreement for the settlement of land claims arising under a treaty, grant a contract that includes terms and conditions similar to those that were in effect in respect of those lands immediately before they were set apart as a reserve;
(d) fix a later time for a person to do anything under this Act or under a contract, even though the original time for doing it has passed, if the Minister is satisfied that a delay is or was unavoidable and that an extension would not prejudice any other person; and
(e) prescribe any forms that are necessary for the purposes of this Act.
Conditions
(2) In exercising a power under subsection (1), the Minister may impose any conditions that the Minister considers appropriate.
Limitation period
5.1 (1) Without limiting any other right or remedy available to the Minister, the Minister may commence an action to collect an amount owing to Her Majesty in right of Canada under this Act — and any interest owing on the amount — within 10 years after the end of the calendar year in which the amount became owing.
Exception — fraud, misrepresentation
(2) Despite subsection (1), the Minister may commence an action at any time to collect an amount owing to Her Majesty in right of Canada under this Act that was unpaid by reason of fraud or because of a misrepresentation that is attributable to neglect, carelessness or wilful default, together with any interest owing on that amount.
2. Section 6 of the Act is amended by adding the following after subsection (1):
Clause 2: New.
Article 2 : Nouveau.
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:
Clause 3: New.
Article 3 : Nouveau.
Canada Labour Code
7. This Act does not affect the application of the Canada Labour Code.
INSPECTION, AUDIT AND EXAMINATION
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Conditions
(2) The judge making an order under subsection (1) may impose any conditions in respect of the order that the judge considers appropriate.
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.
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.
Prohibition
13. (1) No person shall interfere with or obstruct any person doing anything the person is authorized to do under this Act.
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
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Powers of Court
(2) On an appeal, the Federal Court may confirm or set aside the decision of the Minister.
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.
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.
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.
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.
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.
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.
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.
TRANSITIONAL
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.
COMING INTO FORCE
Order in council
4. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada