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

First Nations Oil and Gas and Moneys Management Act

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

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. 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. ( contrat ) , 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. ( autorité décisionnelle ) , 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. ( évaluation environnementale ) , 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. ( exploitation ) includes surveying, mapping, test drilling and geological, geophysical and geochemical examinations carried out in pursuit of oil or gas. ( exploration ) means a bank or a trust company. ( institution financière ) means a band within the meaning of the Indian Act . ( première nation ) 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. ( membre de la première nation ) 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. ( gaz ) means a managed area as described in section 25. ( secteur aménagé ) means the Minister of Indigenous Services. ( ministre ) 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. ( pétrole ) means a law made by a first nation under section 35. ( texte pétrolier ou gazier ) 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. ( recettes pétrolières ou gazières ) 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. ( projet )

  , 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). ( date de transfert )

  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 . ( société de fiducie )

  • 2005, c. 48, s. 2
  • 2012, c. 19, s. 61
  • 2019, c. 28, s. 179
  • 2019, c. 29, s. 375

  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: 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.
      • (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.