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FIRST NATIONS COMMERCIAL AND INDUSTRIAL DEVELOPMENT ACTHaisla Nation Liquefied Natural Gas Facility RegulationsP.C.2012-1742201212
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Whereas the Haisla Nation has requested by resolution of its council that the Minister of Indian Affairs and Northern Development recommend to the Governor in Council the making of the annexed Regulations and, in accordance with paragraph 5(1)(a) of the First Nations Commercial and Industrial Development Acta, the Minister has received that resolution;S.C. 2005, c. 53Whereas the Haisla Nation is a First Nation within the meaning of the First Nations Commercial and Industrial Development Acta;Whereas jurisprudence in relation to the Constitution Act, 1867b leaves some uncertainty with respect to the application of some provincial laws to reserve lands, and the intention of the annexed Regulations is to ensure that certain laws set out in Schedule 2 to those Regulations apply as federal law to the project lands, within the limits of federal constitutional authority;30 & 31 Vict., c. 3 (U.K.)Whereas the annexed Regulations specify provincial officials by whom, and provincial bodies by which, powers may be exercised or duties must be performed;And whereas in accordance with paragraph 5(1)(b) of the First Nations Commercial and Industrial Development Acta an agreement has been concluded between the Minister of Indian Affairs and Northern Development, the Province of British Columbia and the council of the Haisla Nation for the administration and enforcement of the Regulations by those provincial officials and bodies;Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 3c of the First Nations Commercial and Industrial Development Acta, makes the annexed Haisla Nation Liquefied Natural Gas Facility Regulations.S.C. 2010, c. 6, s. 3Interpretation
DefinitionsThe following definitions apply in these Regulations.incorporated laws means the statutes, regulations and other legislative instruments of British Columbia, or the portions of them, set out in Schedule 2, as amended from time to time and as adapted by sections 13 to 43. (textes législatifs incorporés)project lands means the lands set out in Schedule 1. (terres du projet)
Provincial Interpretation ActThe incorporated laws are to be interpreted in accordance with the British Columbia Interpretation Act (R.S.B.C. 1996, c. 238), as amended from time to time, and, for that purpose, references to “enactment” in that Act are to be read to include the incorporated laws.
Other expressionsFor greater certainty, the adaptations in sections 13 to 43 are to be interpreted to be part of the incorporated laws to which they apply.
Application of Laws
Incorporation by referenceSubject to section 5, the incorporated laws apply to the project lands.
RestrictionA provision of an incorporated law applies only if the provision of the law of British Columbia that it incorporates is in force.RestrictionFor greater certainty, an incorporated law applies only to the extent that it is within the limits of federal constitutional authority.
Incorporation of procedural mattersUnless otherwise provided and subject to any adaptations set out in sections 13 to 43, the following are to be carried out in accordance with the laws of British Columbia, whether or not those laws have been set out in Schedule 2:the enforcement of incorporated laws;the prosecution of an offence, or any other proceedings, in relation to the contravention of an incorporated law;the review or appeal of an action or decision taken, or of a failure to take an action that could have been taken, under an incorporated law;any requirements for notice or service in relation to an action to be taken under an incorporated law.Related powersFor the purposes of subsection (1), a person or body that has a power, duty or function under a law of British Columbia has the same power, duty or function in respect of any actions taken under that subsection.
Offences and penaltiesIf contravention of a law of British Columbia that is incorporated in these Regulations is an offence under the laws of British Columbia, contravention of the incorporated law is also an offence and is subject to the same penalties as under the laws of British Columbia.
Financial requirements under leaseIf the incorporated laws require a cash deposit or other financial security to be given, those requirements do not displace, but instead apply in addition to, the requirements of any lease of the project lands in relation to cash deposits or other financial security.
Inapplicable Federal Regulations
ExclusionThe Indian Reserve Waste Disposal Regulations do not apply to the project lands.
Construction Standards
Conformity with British Columbia standardsConstruction of and alterations to buildings on the project lands must be done in accordance with the British Columbia Building Code and British Columbia Fire Code, as amended from time to time.
Occupancy permitNo building on the project lands is to be occupied unless the Haisla Nation, or a person authorized by the Haisla Nation, has issued an occupancy permit for that building.Occupancy permitThe Haisla Nation, or a person authorized by the Haisla Nation, must issue an occupancy permit for a building within 15 days after it receives written confirmation by a person registered or licensed as a professional engineer under the Engineers and Geoscientists Act (R.S.B.C. 1996, c. 116) that the building was constructed in accordance with section 10.
Transitional Provision
Survival of rightsAny permits, authorizations, orders or exemptions — including any amendments to them — issued by the British Columbia Oil and Gas Commission in relation to the project lands prior to the coming into force of these Regulations are considered to have been issued under these Regulations and to be valid for the purposes of these Regulations.
Adaptations Applicable to All Incorporated Laws
British Columbia statutes and regulationsUnless otherwise indicated, the statutes and regulations referred to in sections 18 to 43 are statutes and regulations of British Columbia.
Interpretation of incorporated lawsThe incorporated laws are to be read without reference to any of the following:spent provisions and provisions making consequential amendments to other enactments that are not incorporated laws;provisions appointing a person, providing for the remuneration of a person, or establishing or continuing a provincial body, program or fund;provisions relating to the internal management of a provincial body;provisions requiring or authorizing monies to be paid from the Consolidated Revenue Fund of British Columbia;provisions authorizing the Lieutenant-Governor in Council, a Minister or a provincial body to make regulations of general application, except to the extent required to make the regulations set out in Schedule 2.Interpretation of incorporated lawsDespite paragraph (1)(b),a person appointed to a position under a law of British Columbia that has been incorporated by reference in these Regulations is considered to have been appointed to the same position for the purposes of these Regulations, for so long as that person remains in that position under the law of British Columbia; anda provincial body, program or fund established or continued under a law of British Columbia that has been incorporated by reference in these Regulations is considered to have been established or continued for the purposes of these Regulations.Specified officials and bodiesFor greater certainty, a person or body that has a power, duty or function under a law of British Columbia incorporated by reference in these Regulations has the same power, duty or function under these Regulations, subject to the adaptations set out in sections 18 to 43.Interpretation of adapted lawsFor greater certainty, if a law of British Columbia is adapted by these Regulations, a reference to that law in an incorporated law or in any notice, form, instrument or other document issued under an incorporated law is to be read as a reference to that law as adapted by these Regulations.
ExclusionUnless otherwise provided by these Regulations, a provision of an incorporated law that imposes an obligation, liability or penalty on an owner, occupier, public authority, public body or unspecified person or entity does not apply to Her Majesty in right of Canada or federal ministers or officials.
Limitation on searches and inspectionsA power to search or make inspections under an incorporated law, including the power to enter a place, does not include a power to enter or search, or to inspect anything in, a federal government office, without the consent of the person who is or appears to be in charge of that office.
Limitation on production of documentsA power to seize, remove or compel the production of documents under an incorporated law does not include a power to seize, remove or compel the production of a document in the possession of the federal government, without the consent of the person in possession of the document.
Adaptations to the Environmental Management Act and Regulations
MunicipalitiesThe Environmental Management Act and the regulations made under it set out in Schedule 2 are to be read without reference to any powers conferred on a municipality or an employee of a municipality.
Environmental Management Act
Adaptation to Part 4For the purposes of Part 4 of the Environmental Management Act, the standard to be applied for remediation is a standard consistent with industrial land use.
Adaptation to section 40(1)(b)In section 40(1)(b) of the Act, a reference to “the applicable municipality” is to be read as a reference to “the director”.
Adaptation to section 55(6)Section 55(6) of the Act is to be read as follows:Her Majesty in right of Canada and Her Ministers and officials, and the Haisla Nation and its council and employees, do not incur any liability and are not to be considered a responsible person under this Act as a result of any bylaw, law, permit, license, approval or other document adopted or issued under the Indian Act (Canada), or a land code adopted under the First Nations Land Management Act (Canada), that authorizes the removal or deposit of contaminated soil from or on the project lands.
Adaptation to section 61(1)In section 61(1) of the Act, a reference to “government” is to be read to include Her Majesty in right of Canada and the Haisla Nation.
Contaminated Sites Regulation
General adaptationFor the purposes of the Contaminated Sites Regulation, the standard to be applied for remediation is a standard consistent with industrial land use.
General adaptationFor greater certainty, the power of the director to require financial security under section 48(4) of the Regulation does not include the power to require financial security from Her Majesty in right of Canada.
Adaptation to the Forest Practices Board Regulation
General adaptationThe Forest Practices Board Regulation applies only insofar as it relates to the Wildfire Act.
Adaptation to the Integrated Pest Management Regulation
Adaptation to section 1 Crown landFor the purposes of the Integrated Pest Management Regulation, the project lands are to be considered as private lands.
Adaptation to the Occupiers Liability Act
Adaptation to section 1 occupierThe definition of occupier in section 1 of the Occupiers Liability Act is to be read to exclude the Haisla Nation.
Adaptations to the Oil and Gas Activities Act and RegulationsOil and Gas Activities Act
General adaptationFor the purposes of the Oil and Gas Activities Act and the regulations made under it set out in Schedule 2, the project lands are to be considered as unoccupied Crown land.
Survival of rightsInstead of granting a permit or giving an authorization under the Act, the commission may rely on a permit issued, or other authorization given, under the Indian Act (Canada) in relation to the project lands.
Adaptation to section 1(2) specified enactmentThe definition of specified enactment in section 1(2) of the Act is to be read without reference to the Land Act, the Forest Act and the Heritage Conservation Act.Adaptation to section 1(2) specified provisionThe definition of specified provision in section 1(2) of the Act is to be read without reference to paragraphs (b) to (d).
Adaptation to section 23(5)Section 23(5) of the Act is to be read without reference to paragraph (a).
Adaptation to section 34(2)(a)(i)In section 34(2)(a)(i) of the Act, a reference to the Land Act is to be read as a reference to the Indian Act (Canada).
Adaptation to section 53(3)The powers of the commissioner under section 53(3) of the Act do not include the power to make an order against Her Majesty in right of Canada.
Adaptation to section 56(1)In section 56(1) of the Act, a reference to “government” is to be read to include Her Majesty in right of Canada.
Adaptation to sections 74(2)(a) and 76(6)(a)In sections 74(2)(a) and 76(6)(a) of the Act, a reference to “person” is to be read to exclude Her Majesty in right of Canada.
Administrative Penalties Regulation
Adaptation to section 2(1)Section 2(1) of the Administrative Penalties Regulation is to be read without reference to section 36(1) of the Act.
Adaptation to section 3Section 3 of the Regulation is to be read without reference to section 19 of the Environmental Protection and Management Regulation.
Environmental Protection and Management Regulation
Adaptation to sections 6(b) and (d)Sections 6(b) and (d) of the Environmental Protection and Management Regulation are to be read to apply only to wildlife habitat areas and wildlife habitat features located outside the project lands.
Adaptation to section 7(1)(b)Section 7(1)(b) of the Regulation is to be read to apply only to resource features located outside the project lands.Adaptation to section 7(1)(c)Section 7(1)(c) of the Regulation is to be read to apply only to cultural heritage resources located outside the project lands.
Adaptation to the Public Health Act
Adaptation to section 99(1)(d)Section 99(1)(d) of the Public Health Act is to be read as follows:section 11 [failure to make reports];
Adaptations to the Weed Control Act and RegulationsWeed Control Act
General adaptationFor the purposes of the Weed Control Act and the regulations made under it set out in Schedule 2, the project lands are not to be considered as land, premises or property in a municipality.
Weed Control Regulation
Adaptation to Schedule BSchedule B to the Weed Control Regulation is to be read without reference to the sentence “If that cost is not paid it may, under section 8 of the Act, be collected and recovered as taxes in arrears under the Municipal Act or as unpaid taxes under the Taxation (Rural Area) Act”.
Adaptation to the Wildfire Act and Regulations
General adaptationFor the purposes of the Wildfire Act and the regulations made under it set out in Schedule 2, the project lands are to be considered as private lands.
Coming into Force
RegistrationThese Regulations come into force on the day on which they are registered.
(Section 1)Project LandsThose lands in the Bees Indian Reserve No. 6, more particularly known and described asIn the Province of British Columbia, in Range 4, Coast District, the whole of Bees Indian Reserve No. 6, more particularly described as all of Lots 1, 3 and 4 on Plan 96252 and Lots 2-1 and 2-2 on Plan 97774, recorded in the Canada Lands Surveys Records in Ottawa. Together these lots contain about 70.63 hectares.(Section 1, subsection 6(1), paragraph 14(1)(e), sections 18, 28, 41 and 43)Incorporated LawsStatutes and RegulationsDrinking Water Protection Act, S.B.C. 2001, c. 9, other than sections 31(4) and 38Drinking Water Protection Regulation, B.C. Reg. 200/2003Environmental Management Act, S.B.C. 2003, c. 53, other than sections 23 to 38, 40(1)(a), 40(1)(b)(i), (ii), (iv) and (v), 44(2)(b)(iii) and (e)(iii), 53(3)(e) and 59(4) to (7)Conservation Officer Service Authority Regulation, B.C. Reg. 318/2004, other than sections 1(2)(a) to (a.2), (a.4) to (c), (d) to (g) and (i)Contaminated Sites Regulation, B.C. Reg. 375/96, other than sections 41(3)(h) and 48(1) to (3)Environmental Data Quality Assurance Regulation, B.C. Reg. 301/90Environmental Impact Assessment Regulation, B.C. Reg. 330/81Hazardous Waste Regulation, B.C. Reg. 63/88, other than sections 27(10)(b) and 35(7)(b)Municipal Wastewater Regulation, B.C. Reg. 87/2012Ozone Depleting Substances and Other Halocarbons Regulation, B.C. Reg. 387/99Permit Fees Regulation, B.C. Reg. 299/92, other than sections 3(5) and 5(1)(c)Petroleum Storage and Distribution Facilities Storm Water Regulation, B.C. Reg. 168/94Spill Cost Recovery Regulation, B.C. Reg. 250/98Spill Reporting Regulation, B.C. Reg. 263/90Waste Discharge Regulation, B.C. Reg. 320/2004Integrated Pest Management Act, S.B.C. 2003, c. 58Integrated Pest Management Regulation, B.C. Reg. 604/2004Occupiers Liability Act, R.S.B.C. 1996, c. 337, other than section 8Oil and Gas Activities Act, S.B.C. 2008, c. 36, other than sections 12, 28, 34(3) to (5), 36(1) and 104Administrative Penalties Regulation, B.C. Reg. 35/2011, other than section 7Drilling and Production Regulation, B.C. Reg. 282/2010Environmental Protection and Management Regulation, B.C. Reg. 200/2010, other than sections 4(b), 5(b), 6(a) and (c), 7(1)(a), 19, 25(b) and (e) to (g) and 26 to 39Fee, Levy and Security Regulation, B.C. Reg. 278/2010Oil and Gas Activities Act General Regulation, B.C. Reg. 274/2010, other than sections 7 and 24 to 26Pipeline and Liquefied Natural Gas Facility Regulation, B.C. Reg. 281/2010, other than section 11(b)Public Health Act, S.B.C. 2008, c. 28, other than sections 3 to 10, 12 to 14, 16, 17, 22, 26 to 29, 34(3), 36, 40, 49, 50, 56(5)(c), 60(2)(b) and (c), 61 to 89, 91, 95 and 99(1)(a) to (c), (e) to (g) and (i), (2)(b) and (c) and (3)(b)Sewerage System Regulation, B.C. Reg. 326/2004Water Act, R.S.B.C. 1996, c. 483, other than sections 2, 27 and 28Ground Water Protection Regulation, B.C. Reg. 299/2004Water Regulation, B.C. Reg. 204/88, other than sections 24 to 32Weed Control Act, R.S.B.C. 1996, c. 487, other than section 8Weed Control Regulation, B.C. Reg. 66/85Wildfire Act, S.B.C. 2004, c. 31, other than section 4Forest Practices Board Regulation, B.C. Reg. 15/2004Wildfire Regulation, B.C. Reg. 38/2005Other Legislative InstrumentsProtocols issued under section 64 of the Environmental Management Act:Protocol 2: Site-Specific Numerical Soil StandardsProtocol 3: Blending, Mixing, or Dilution as a Remediation ApproachProtocol 4: Determining Background Soil QualityProtocol 6: Eligibility of Applications for Review by Approved ProfessionalsProtocol 7: Regulation of Petroleum Hydrocarbons in Water under the Contaminated Sites and Special Waste RegulationsProtocol 9: Determining Background Groundwater QualityProtocol 10: Hardness Dependent Site-Specific Freshwater Water Quality Standard for Cadmium and ZincProtocol 11: Upper Cap Concentrations of SubstancesProtocol 12: Site Risk Classification, Reclassification and ReportingProtocol 13: Screening Level Risk AssessmentProtocol 14: Requirements for Determining Barite SitesProtocol 16: Determining the Presence and Mobility of Nonaqueous Phase Liquids and Odorous SubstancesProtocol 17: Requirements for Notifications of Independent Remediation and Offsite Migration