Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Oil and Gas Corporation
Act.
Definitions
2. In
this Act
(a) "board" means the board of directors
of the corporation;
(b) "chairperson" means the person
appointed under subsection 12(1);
(c) "chief executive officer" means the
person appointed under subsection 12(3);
(d) "commercially sensitive information"
means information relating to the business affairs or activities of the corporation
or a subsidiary, or of a third party provided to the corporation or the
subsidiary by the third party, and includes
(i) scientific or technical information, including
trade secrets, industrial secrets, technological processes, technical
solutions, manufacturing processes, operating processes and logistics methods,
(ii) strategic business planning information,
(iii) financial or commercial information, including
financial statements, details respecting revenues, costs and commercial
agreements and arrangements respecting individual business activities,
investments, operations or projects and from which such information may reasonably
be derived,
(iv) information respecting positions, plans,
procedures, criteria or instructions developed for the purpose of contractual
or other negotiations by or on behalf of the corporation, a subsidiary or a
third party, or considerations that relate to those negotiations, whether the
negotiations are continuing or have been concluded or terminated,
(v) financial, commercial, scientific or technical
information of a third party provided to the corporation or a subsidiary in
confidence,
(vi) information respecting legal arrangements or
agreements, including copies of the agreements or arrangements, which relate to
the nature or structure of partnerships, joint ventures, or other joint business
investments or activities,
(vii) economic and financial models used for
strategic decision making, including the information used as inputs into those
models, and
(viii) commercial information of a kind similar to
that referred to in subparagraphs (i) to (vii),
but does not include information relating to
an independent contractor's
(ix) name,
(x) position or function with the corporation,
(xi) remuneration, and
(xii) payments received from the corporation;
(e) "corporation" means the corporation established
under section 3;
(f) "court" means, unless the context
indicates otherwise, the Supreme Court;
(g) "directive" means a directive issued
under section 8;
(h) "director" means, unless the context
indicates otherwise, a director of the board;
(i) "independent contractor" means a
person retained under a contract to perform services for the corporation;
(j) "independent director" means a
person who is not
(i) a member of the board of directors of a subsidiary,
or
(ii) an employee or officer of the corporation,
another subsidiary or the Crown;
(k) "intergovernmental agreement" means
intergovernmental agreement as defined in the Intergovernmental Affairs Act;
(l) "land" means real property of every
kind, and includes tenements, hereditaments, and appurtenances, leaseholds, and
an estate, term, easement, right or interest in, to, over, under or affecting land,
including rights-of-way, and waters, water rights, water powers and water privileges;
(m) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(n) "objects" means, unless the context
indicates otherwise, the objects of the corporation set out in subsection 7(1);
(o) "person" includes a natural person, a
corporation, another entity recognized by law, and the heirs, executors, administrators
or other legal representatives of a person;
(p) "public body" means a public body as
defined in the Access to Information and
Protection of Privacy Act, 2015;
(q) "record" means a record as defined
in the Access to Information and
Protection of Privacy Act, 2015;
(r) "sovereign government" means
sovereign government as defined in the Intergovernmental
Affairs Act;
(s) "subsidiary" means, unless the
context indicates otherwise, a subsidiary of the corporation; and
(t) "works" means all land, property,
buildings, plants, machinery, installations, materials, devices, fittings,
apparatus, appliances and equipment made, established or acquired or utilized,
or useful for the exercise of the powers of the corporation and the attainment
of its objects.
Corporation established
3. (1) There
is established an oil and gas corporation for the province.
(2) The name of the corporation shall be
determined by the Lieutenant-Governor in Council.
(3) The corporation is considered to have issued
and outstanding shares which are vested in the Crown.
(4) The provisions of this Act constitute the articles
of the corporation.
(5) The head office of the corporation shall be at
St. John's.
(6) The corporation is not an agent of the Crown.
(7) Property of the corporation is not property of
the Crown.
(8) A director or a person employed by the
corporation does not become, by reason of that office or employment only, an
officer or employee of the Crown.
(9) Notwithstanding subsection (2), in all Acts of
the Legislature, agreements, legal documents and instruments, the corporation
may be referred to as the "Oil and Gas Corporation of Newfoundland
and Labrador".
Shareholder immunity
4. The
Crown is not liable for a liability, act or default of the corporation or a
subsidiary except where a directive is issued.
Corporations Act
5. (1)
The Corporations Act applies to the
corporation.
(2) Where there is a conflict between a provision
of this Act and the Corporations Act,
this Act prevails.
Corporate
capacity
6. (1)
The corporation has the capacity, and the rights, powers and privileges of a
natural person.
(2) The corporation has the capacity to carry on
its business, conduct its affairs and exercise its powers in another
jurisdiction to the extent that the laws of that jurisdiction permit.
(3) It is not necessary for a by-law to be passed
in order to confer a particular power on the corporation or its directors.
Objects
7. (1) The
corporation is responsible for investing in, engaging in and carrying out the
following activities in the province and elsewhere, in accordance with the priorities
of the government of the province:
(a) the exploration for, development, production,
refining, marketing and transportation of hydrocarbons and products from
hydrocarbons; and
(b) research and development.
(2) Notwithstanding subsection (1), the
corporation may invest in and engage in those other activities that the
Lieutenant-Governor in Council may approve.
Directives
8. (1)
The Lieutenant-Governor in Council may issue a directive to the board respecting
(a) the management of the business and affairs of
the corporation and its subsidiaries; and
(b) another matter that the Lieutenant-Governor in
Council determines necessary.
(2) The board shall comply with a directive.
(3) To the extent that a directive restricts the
powers of the board to manage the business and affairs of the corporation, the
directors are thereby relieved of their duties and obligations.
General powers
9. (1) The
corporation may
(a) enter into contracts or other agreements and
acquire and dispose of and otherwise deal with real and personal property and
all rights of all kinds in the name of the corporation;
(b) acquire, lease, establish, construct, maintain
and operate works in a part of the province or elsewhere in connection with the
attainment of its objects;
(c) contract with a person for the purchase of
petroleum products, notwithstanding another Act;
(d) acquire by purchase, lease or otherwise, property,
both real and personal, and water privileges, water powers, rights, easements,
privileges, proprietary rights, interests, and works of every description which
the corporation considers necessary, convenient or advisable to acquire for or
incidental to the exercise of the powers and duties of the corporation and the
attainment of its objects;
(e) sell or otherwise dispose of its property,
real or personal, of every nature and kind or an interest in it which is found
by the corporation to be unnecessary for the purposes of the corporation, and
grant an estate, term, easement, right or interest in, over or respecting the
property;
(f) deposit money or securities with a bank,
trustee, trust company, or other depositary in Canada
or outside of Canada;
(g) lend money to or invest in a subsidiary;
(h) guarantee the repayment by a subsidiary of
money advanced to that subsidiary by a lender, together with the payment of
interest on it and of all charges incurred in connection with it;
(i) guarantee the performance by a subsidiary of
an obligation of that subsidiary contracted by it with a person to perform,
fulfil or observe a covenant, obligation or provision of an agreement, deed,
bond, promissory note or other document or instrument;
(j) exercise and enjoy all of the privileges and
immunities conferred on it by this Act and do all acts necessary or incidental
to the attainment of its objects;
(k) carry on business incidental and related to
the carrying out of the objects and necessary to enable the corporation to profitably
carry out those objects; and
(l) generally, do all things which the corporation
considers necessary, convenient or advisable for or incidental to the exercise
of the powers and the discharge of the obligations of the corporation.
(2) The powers of the corporation include
(a) the power to acquire, lease, construct,
maintain, operate and use in the province and elsewhere works, structures, devices,
pipelines, tunnels and other property used or useful for carrying out the objects;
(b) the powers conferred on the corporation under
this Act; and
(c) all other powers that are incidental or conducive
to the attainment of the objects.
Board of
directors
10. (1) For
the exercise and discharge of the powers and duties of the corporation, there
shall be a board of directors consisting of not less than 7 and not more than 11
persons.
(2) The directors shall be appointed by the
Lieutenant-Governor in Council.
(3) The board of directors shall be composed of at
least the following number of independent directors:
(a) where the board has 7 or 8 directors, 3
independent directors;
(b) where the board has 9 or 10 directors, 4
independent directors; and
(c) where the board has 11 directors, 5
independent directors.
(4) In addition to the directors appointed under
subsection (2), the Lieutenant-Governor in Council may appoint a representative
of government to be a non-voting member of the board.
(5) Except where otherwise prescribed under this
Act, the corporation may exercise its powers by a resolution of the board.
(6) The directors shall not be paid a salary but may
be paid, in accordance with the guidelines established by the
Lieutenant-Governor in Council,
(a) amounts for travel and other expenses incurred
in the work of the board; and
(b) other remuneration.
(7) The amounts referred to in subsection (6)
shall be paid from the fund established under section 41.
(8) Until the board makes a by-law under section 16, a majority of the
directors who then hold office constitutes a quorum of the board.
(9) Notwithstanding subsections (1) to (3), the
Lieutenant-Governor in Council may appoint an interim board of directors who
shall have the powers, duties and functions of the board under this Act until
the directors are appointed under subsection (2).
Term of office
11. (1) A director shall be
appointed for a term of up to 5 years from the date his or her appointment
becomes effective.
(2) Where the term of a director expires, he or
she continues to be a director until reappointed or replaced.
(3) A director whose term of office has expired is
eligible for reappointment.
(4) A director shall not serve as a director for a
continuous period longer than 10 years.
(5) A director may resign the office of director
by written notice to the Lieutenant-Governor in Council.
(6) The Lieutenant-Governor in Council may remove
a director from office before the term of office of that director expires.
(7) Where the Lieutenant-Governor in Council
removes a director under subsection (6), the director does not have a cause of
action against the Crown nor a right to compensation as a result of the removal.
(8) A director stops holding office when the director
(a) dies or resigns;
(b) is removed from office in accordance with subsection
(6); or
(c) becomes disqualified under section 172 of the Corporations Act.
(9) Where a vacancy occurs on the board because of
the death, illness, resignation, removal of a director, or for another reason,
the Lieutenant-Governor in Council may appoint a person to fill the vacancy.
(10) The exercise of the powers of the corporation
is not impaired because of a vacancy on the board.
(11) All acts done by the board or by a director
shall, notwithstanding that it is afterwards discovered that there was a defect
in the appointment or qualification of a person purporting to be a director, be
as valid as if that defect had not existed.
Chairperson and
CEO
12. (1) There
shall be a chairperson of the board to be appointed by the Lieutenant-Governor
in Council from among the directors.
(2) The chairperson holds office for the period
and under the terms and conditions that may be prescribed by the Lieutenant-Governor
in Council or in an agreement made under section 15, and shall vacate the office
in accordance with those terms and conditions.
(3) There shall be a chief executive officer of
the corporation, to be appointed by the Lieutenant-Governor in Council, who
shall, subject to the terms of appointment that may be established by the
Lieutenant-Governor in Council, or in an agreement made under section 15 and,
subject to the directions of the board, be charged with the general direction,
supervision and control of the business of the board and the corporation.
(4) The same person may not hold the offices of
chairperson and chief executive officer simultaneously.
(5) During the absence or incapacity of the
chairperson, one of the other directors, other than the chief executive
officer, where the chief executive officer is a director, elected by the board
for the purpose shall act as chairperson of the board.
(6) During the absence or incapacity of the chief
executive officer, the board may appoint an acting chief executive officer who
shall perform the duties of the chief executive officer until his or her return
or resumption of duties or until a new chief executive officer is appointed.
(7) Where the chief executive officer is a
director, he or she shall not be entitled to vote.
(8) Notwithstanding subsection (1), the
Lieutenant-Governor in Council may appoint an interim chairperson who shall
have the powers, duties and functions of the chairperson under this Act until the
chairperson is appointed under subsection (1).
Duty to manage
13. Subject
to a directive, the directors shall
(a) exercise the powers of the corporation
directly or indirectly through the employees and agents of the corporation; and
(b) direct the management of the business and
affairs of the corporation.
Minutes
14. The
chairperson shall ensure that regular minutes are kept of the meetings of the
board.
Service agreement
15. (1) With
the approval of the Lieutenant-Governor in Council, the corporation may enter
into an agreement with a person that provides for his or her appointment to the
office of chairperson or chief executive officer of the corporation.
(2) An agreement under this section shall not be
amended or terminated without the approval of the Lieutenant-Governor in
Council.
(3) Notwithstanding subsection 10(6), an agreement
under this section may prescribe the terms and conditions of appointment to the
office and the term, tenure and remuneration, including the salary, pension and
other rights and benefits that the appointee is to receive and the terms and
conditions under which the appointment may be terminated and by whom before the
expiration of the term of the appointment.
(4) A person with whom an agreement is made under
this section
(a) holds that office in accordance with the
agreement and shall vacate it accordingly; and
(b) does not, by reason only of the appointment to
that office, become an employee of the Crown.
By-laws
16. The
board may make by-laws
(a) respecting the calling of meetings of the
board;
(b) establishing a quorum of the board;
(c) respecting the conduct of business at meetings
of the board and the establishment of committees of the board and the
delegation of duties to those committees;
(d) respecting the duties and conduct of the
directors and of the officers and employees of the corporation;
(e) respecting the common seal of the corporation
and the use of it;
(f) respecting the execution of a contract or
instrument on behalf of the corporation;
(g) respecting the lithographing or mechanical
reproduction of signatures on bonds, debentures, securities, or other evidence
of indebtedness of the corporation or upon coupons and the mechanical
reproduction of the common seal of the corporation on the bonds, debentures,
securities, other evidence of indebtedness or coupons;
(h) respecting the management and use of any or
all of its property by employees, invitees, licensees or permittees of the
corporation and by another person; and
(i) generally, for the conduct and management of
the affairs of the corporation.
Corporate seal
17. (1)
Until the board makes a by-law under section 16,
the affixing of the common seal of the corporation shall be witnessed by at
least 2 directors.
(2) An instrument or agreement executed on behalf
of the corporation by a director, an officer or an agent of the corporation is
not invalid merely because a corporate seal is not placed on it.
Appointment of
staff
18. (1) The
board may appoint those officers, managers, other staff and employees that it
considers necessary.
(2) The terms of service and remuneration of a
person who is appointed under subsection (1) shall be set in accordance with
the policies and guidelines established by Treasury Board.
(3) A person who is appointed under subsection (1)
does not, by reason only of the appointment, become an employee of the Crown.
(4) This section applies, with the necessary
changes, to a subsidiary.
Duties of
directors and officers
19. (1)
A director and officer of the corporation in exercising his or her powers and
discharging his or her duties shall
(a) act honestly and in good faith with a view to
the best interests of the corporation; and
(b) exercise the care, diligence and skill that a
reasonably prudent person would exercise in comparable circumstances.
(2) A director and officer of the corporation
shall comply with this Act, the by-laws and a directive.
(3) A provision in a contract, the by-laws or a
resolution does not relieve a director or officer from the duty to act in accordance
with this Act or relieve the director or officer from liability for a breach of
this Act, unless otherwise provided in this Act.
Meetings
20. (1) The
board may conduct its meetings in person, by video conference, by
teleconference or by other telecommunication device so long as, at a meeting,
all participants may communicate simultaneously and instantaneously.
(2) A director participating in a meeting by videoconference,
teleconference or other telecommunication device shall be counted as a director
present at the meeting for the purpose of establishing a quorum.
Subsidiaries of
corporation
21. (1)
A company is considered to be a subsidiary if
(a) it is controlled by
(i) the corporation,
(ii) the corporation and one or more companies,
each of which is controlled by the corporation, or
(iii) one or more companies, each of which is
controlled by the corporation; or
(b) it is a subsidiary of a company which is a
subsidiary.
(2) For the purposes of this section, a company
shall be considered to be controlled by the corporation or one or more companies
if
(a) shares of the first-mentioned company carrying
more than 50% of the votes for the election of directors are held, otherwise
than by way of security only, for the benefit of the corporation or other
companies; and
(b) the votes carried by the shares are sufficient,
if exercised, to elect a majority of the board of directors of the first-mentioned
company.
(3) Except with the prior approval of the
Lieutenant-Governor in Council, the corporation shall not organize or maintain
a subsidiary or purchase, sell, otherwise dispose of or deal in shares of a
subsidiary or of another company, and, where the approval is given, the corporation
may do the things referred to in this subsection only where it is expressly
mentioned in and to the extent provided by the approval.
(4) The objects of a subsidiary shall be some or
all of the objects of the corporation.
(5) A subsidiary shall not engage in an activity
that, were it to be undertaken by the corporation, would require the prior
approval of the Lieutenant-Governor in Council, including the creation of a subsidiary,
without the prior approval of the corporation.
(6) The provisions of this Act, with the necessary
changes, shall be considered to form the articles of incorporation, or a part
of them, of a subsidiary.
(7) A subsidiary is not an agent of the Crown
unless it is designated as an agent by the Lieutenant-Governor in Council when
the Lieutenant-Governor in Council gives its approval of the incorporation of
the subsidiary under subsection (3).
(8) Where a subsidiary is not designated as an
agent of the Crown under subsection (7),
(a) the property of the subsidiary is not the
property of the Crown or an agent of the Crown;
(b) the debts and obligations of the subsidiary
are not the debts and obligations of the Crown or an agent of the Crown;
(c) the subsidiary shall be incorporated under the
Corporations Act unless the approval
provided under subsection (3) permits incorporation under the laws of another
jurisdiction;
(d) the board of directors of the subsidiary shall
be composed of not less than 5 and not more than 7 directors;
(e) the board of directors of the subsidiary shall
be composed of at least the following number of independent directors:
(i) where the board has 5 or 6 directors, 2
independent directors, and
(ii) where the board has 7 directors, 3 independent
directors; and
(f)the chief executive officer of the subsidiary shall be appointed by
the board of directors of the subsidiary.
Intergovernmental
agreements
22. (1) An
agreement between the corporation or a subsidiary and an agent of the Crown in
right of Canada,
or of the Crown in right of another province or of another sovereign government
is not an intergovernmental agreement where the agreement solely relates to the
objects.
(2) An intergovernmental agreement entered into by
the corporation or a subsidiary before the coming into force of this section is
considered binding on the corporation or a subsidiary notwithstanding the
agreement may not have been signed by the minister responsible for
intergovernmental affairs or his or her designate as required by section 7 of
the Intergovernmental Affairs Act.
Records of commercially
sensitive information
23. (1) Notwithstanding
section 7 of the Access to Information and Protection of Privacy Act, 2015, in addition to the information that shall or may be
refused under Part II, Division 2 of that Act, the chief executive officer of
the corporation or a subsidiary, or the head of another public body,
(a) may refuse to disclose to an applicant under
that Act commercially sensitive information of the corporation or the
subsidiary; and
(b) shall refuse to disclose to an applicant under
that Act commercially sensitive information of a third party
where the chief executive officer of the
corporation or the subsidiary to which the requested information relates,
taking into account sound and fair business practices, reasonably believes
(c) that the disclosure of the information may
(i) harm the competitive position of,
(ii) interfere with the negotiating position of, or
(iii) result in financial loss or harm to
the corporation, the subsidiary or the third
party; or
(d) that information similar to the information
requested to be disclosed
(i) is treated consistently in a confidential
manner by the third party, or
(ii) is customarily not provided to competitors by
the corporation, the subsidiary or the third party.
(2) Where an applicant is denied access to
information under subsection (1) and a request to review that decision is made
to the commissioner under section 42 of the Access to Information and Protection of
Privacy Act, 2015, the commissioner shall, where he or she determines that
the information is commercially sensitive information,
(a) on receipt of the chief executive officer's
certification that he or she has refused to disclose the information for the
reasons set out in subsection (1); and
(b) confirmation of the chief executive officer's
decision by the board of directors of the corporation or subsidiary,
uphold the decision of the chief executive
officer or head of another public body not to disclose the information.
(3) Where a person appeals,
(a) under subsections 52(1)
and (2), subsections 53(1) and (2) or section 54 of the Access
to Information and Protection of Privacy Act, 2015, from a decision under
subsection (1); or
(b) under subsections 52(1)
and (2), subsections 53(1) and (2) or section 54 of the Access
to Information and Protection of Privacy Act, 2015, from a refusal by a
chief executive officer under subsection (1) to disclose information,
paragraph 59(3)(a)
and section 60 of that Act apply to that appeal
as if Part II, Division 2 included the grounds for the refusal to disclose the
information set out in subsection (1) of this Act.
(4) Paragraph 102(3)(a)
of the Access to Information and Protection
of Privacy Act, 2015 applies to information referred to in subsection (1)
of this section as if the information was information that a head of a public
body is authorized or required to refuse to disclose under Part II, Division 2.
(5) Notwithstanding section 21 of the Auditor General Act, a person to whom
that section applies shall not disclose, directly or indirectly, commercially
sensitive information that comes to his or her knowledge in the course of his
or her employment or duties under that Act and shall not communicate those
matters to another person, including in a report required under that Act or
another Act, without the prior written consent of the chief executive officer
of the corporation or subsidiary from which the information was obtained.
(6) Where the auditor general prepares a report
which contains information respecting the corporation or a subsidiary, or
respecting a third party that was provided to the corporation or subsidiary by
the third party, a draft of the report shall be provided to the chief executive
officer of the corporation or subsidiary, and he or she shall have reasonable
time to inform the auditor general whether or not in his or her opinion the
draft contains commercially sensitive information.
(7) In the case of a disagreement between the
auditor general and a chief executive officer respecting whether information in
a draft report is commercially sensitive information, the auditor general shall
remove the information from the report and include that information in a
separate report which shall be provided to the Lieutenant-Governor in Council
in confidence as if it were a report to which section 24 applied.
(8) Notwithstanding the Citizens' Representative Act, the corporation, a subsidiary,
another public body, or an officer, member or employee of one of them is not
required to provide commercially sensitive information, in any form, to the
citizens' representative in the context of an investigation of a complaint
under that Act.
Report of auditor
general
24. (1) Where,
(a) during the course of an audit;
(b) as a result of a review of an audit report
prepared by another auditor; or
(c) as a result of an internal audit procedure,
the auditor general becomes aware of an
improper retention or misappropriation of funds by a director, officer,
employee or agent of the corporation or a subsidiary, or of another activity
that may constitute an offence under the Criminal
Code or an Act of the province or of Canada, the auditor general shall,
where the report includes commercially sensitive information, notwithstanding
the Auditor General Act, provide the
report to the Lieutenant-Governor in Council in confidence.
(2) In addition to the report required under subsection
(1), the auditor general shall immediately provide a report to the House of Assembly
that includes a general description, excluding commercially sensitive
information, of the activity that is the subject of the report under subsection
(1) and the dates on which those activities were reported to the
Lieutenant-Governor in Council.
(3) Section 19.1 of the House of Assembly Act applies to a report under subsection (2) as
if it were a report of an officer of the House of Assembly.
Financial year
25. The
financial year of the corporation and its subsidiaries shall be the calendar
year.
Budget
26. (1)
The corporation shall, not later than September 30 of each year, provide to the
minister a budget containing the estimated capital and operating expenses of
the corporation and its subsidiaries for its next succeeding financial year.
(2) In addition to the budget referred to in
subsection (1), the corporation shall, not later than September 30 of each
year, provide to the minister multi-year forecasts in the form and manner set
by the Minister of Finance.
Annual report
27. (1) The
corporation shall, each year, no later than April 30, prepare and submit to the
minister a report on the activities of the corporation and its subsidiaries in
the previous fiscal year containing
(a) an audited consolidated financial statement of
the corporation setting out the assets and liabilities of the corporation as of
the end of the immediately preceding financial year and the results of its
operations for the financial year;
(b) a report by the board giving an account of the
activities of the corporation during the immediately preceding financial year
and setting out other matters that may appear to it to be of a public interest
in relation to the affairs or the activities of the corporation, but the report
shall not be required to include commercially sensitive information; and
(c) a report of each subsidiary giving an account
of its activities during the immediately preceding financial year and including
information that may appear to it to be of a public interest in relation to the
affairs or the activities of the corporation, but the report shall not be
required to include commercially sensitive information.
(2) The report required under subsection (1) shall
be made public by the minister by
(a) presenting the report to the House of
Assembly; and
(b) other effective means, including
electronically.
(3) Section 19.1 of the House of Assembly Act applies to a report required under subsection
(1) as if the report were a report of an officer of the House of Assembly.
(4) The report required under subsection (1) shall
satisfy the requirements of a report required under section 9 of the Transparency and Accountability Act.
Request for documents
28. Where
requested by the minister, the corporation or a subsidiary shall provide the
minister with the records, reports and other documents he or she specifies in
the request except for financial, commercial, scientific or technical
information of a third party provided to the corporation or a subsidiary in
confidence.
Audit and financial
statement
29. (1) The
board shall annually appoint an auditor who shall annually audit the financial
statement of the corporation.
(2) The financial statement referred to in subsection
(1) shall be signed by 2 directors and shall have attached to it the auditor's
report.
(3) The remuneration of the auditors referred to
in subsection (1) shall be fixed annually by the board and shall be paid by the
corporation out of its funds.
(4) The report of the auditors shall state whether
the financial statement presents fairly the financial position of the corporation
and the results of its operations for the period under review and whether the
financial statement was prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that of the preceding
period.
(5) The Lieutenant-Governor in Council may, by
order, designate or appoint other auditors for carrying out the specific audit
of the corporation's accounts and business that the Lieutenant-Governor in
Council may specify in the order, and the auditor general may conduct the
additional examination and investigation of the records and operations of the
corporation that he or she considers necessary.
(6) For the purposes of an audit, examination or
investigation conducted under subsection (5), the person designated or appointed
by the Lieutenant-Governor in Council, or the auditor general, may request and
shall be supplied by the board with all books, vouchers, records, schedules,
working papers and other documentation which he or she considers necessary.
(7) This section applies, with the necessary
changes, to a subsidiary.
(8) Subsection 23(5) and section 24 apply to an
audit conducted under this section by an auditor who is not the auditor general
as if he or she were the auditor general.
Audit committee
30. (1)
The corporation may appoint an audit committee composed of not less than 3 directors
of the corporation, a majority of whom are not officers or employees of the
corporation or a subsidiary.
(2) In addition to the persons appointed under
subsection (1), the minister may appoint at least one representative from the
department of Finance to the audit committee.
(3) An audit committee shall review the financial
statement of the corporation before the financial statement is signed under subsection
29(2).
(4) The auditor of the corporation is entitled to
receive notice of meetings of the audit committee and, at the expense of the
corporation, to attend and be heard at the meetings and, where requested by a
member of the audit committee, shall attend meetings of the committee held
during the term of office of the auditor.
(5) The auditor of the corporation or a member of
the audit committee may call a meeting of the committee.
Errors in
financial statement
31. (1)
A director or officer of the corporation shall immediately notify the audit
committee and the auditor of an error or misstatement of which the director or
officer of the corporation becomes aware in a financial statement that the
auditor or a former auditor has reported upon.
(2) Where the auditor or former auditor of the corporation
is notified or becomes aware of an error or misstatement in a financial statement
upon which the auditor or former auditor has reported, and where in his or her
opinion the error or misstatement is material, the auditor or former auditor
shall inform each director accordingly.
(3) Where, under subsection (2), the auditor or
former auditor informs the directors, or where the directors otherwise have
knowledge of an error or misstatement in a financial statement, the directors
shall
(a) prepare and issue a revised financial
statement;
(b) inform the minister and submit the revised
financial statement to the minister; and
(c) submit a revised report under subsection 27(1)
to the minister.
Borrowing power
32. (1) Subject
to the prior approval of the Lieutenant-Governor in Council, the corporation may
(a) borrow money for purposes related to the
attainment of its objects; and
(b) to secure the repayment of money borrowed
(i) issue bonds, debentures, or other securities
of the corporation,
(ii) execute and deliver mortgages, assignments,
conveyances, charges or other encumbrances of and over property of every nature
and kind, both present and future, title to which is vested in the corporation,
and
(iii) enter into, execute and deliver a trust deed,
trust indenture or an agreement with a lender, a trustee acting for the holders
of bonds and debentures or other person,
and the money may be borrowed at the rate
of interest and upon the terms and conditions, and the instruments and
documents may be issued or executed and delivered in the form, that the Lieutenant-Governor
in Council, or, where the authority to do so is delegated to the Minister of
Finance by the Lieutenant-Governor in Council, the Minister of Finance,
approves.
(2) The securities of the corporation may be made
payable in a currency approved by the Lieutenant-Governor in Council and expressed
in the security.
Guarantee of
loans
33. Subject
to the prior approval of the Lieutenant-Governor in Council, the Minister of
Finance acting for and on behalf of the Crown may unconditionally guarantee
both as to principal and interest, including interest on overdue interest, premium
and sinking fund payments, loans authorized under section 32 to be raised by
the corporation or a subsidiary, and the loan may be raised by bonds, debentures,
or other securities to be issued by the corporation or a subsidiary
(a) in a principal amount not exceeding the
amount;
(b) at a rate of interest;
(c) on the terms and conditions; and
(d) with provision for redemption at the time,
that may be approved by the Lieutenant-Governor
in Council, or, where the authority to do so is delegated to the Minister of
Finance by the Lieutenant-Governor in Council, the Minister of Finance, and the
bonds, debentures or other securities may be issued or sold in the numbers and
amounts, at the times, at the prices, and upon the terms that the Lieutenant-Governor
in Council or that minister may approve.
Manner and form
of guarantee
34. Notwithstanding
the Financial Administration Act or
another Act or law, when a guarantee is given under section 33 of this Act, it
shall be given in the manner and form that the Lieutenant-Governor in Council
approves, and the form of guarantee shall be signed on behalf of the province
by the Minister of Finance, his or her deputy minister or another minister whom
the Lieutenant-Governor in Council may designate, and that signature may be
engraved, lithographed or otherwise mechanically reproduced on the bonds,
debentures or other securities in respect of which the guarantee is given.
Guarantee of payment
35. Where
the payment of interest or a premium or a sinking fund payment has been
guaranteed under this Act, the Crown may incur liability in excess of the
principal amount of the loan to be raised by way of bonds, debentures, or other
securities, to the extent of the guarantee of the interest, premium and sinking
fund payment.
Guarantee of repayment
36. The
power conferred by section 33 to guarantee the repayment of bonds, debentures
or other securities includes the power to guarantee the repayment of part of
the bonds, debentures or other securities.
Short-term loans
37. (1) The
corporation may, for its purposes, raise short-term loans
(a) in the manner and form;
(b) in the amounts;
(c) in the currencies;
(d) for the period, not exceeding 2 years;
(e) at the rates of interest, including interest
on overdue interest; and
(f) on the conditions, including conditions
relating to discounts, premiums, charges and commissions,
that the corporation may determine.
(2) The total of the short-term loans raised under
subsection (1) and outstanding at any time shall not exceed a limit to be fixed
by the Lieutenant-Governor in Council, and it is the duty of the Minister of
Finance to see that this total is not exceeded.
(3) The Minister of Finance acting on behalf of
the Crown may unconditionally guarantee the repayment of a sum raised under subsection
(1), the payment of interest, including interest on overdue interest and the
payment of a premium.
(4) The total of the guarantees made under subsection
(3) and outstanding at any time shall not exceed a limit to be fixed by the Lieutenant-Governor
in Council, and it is the duty of the Minister of Finance to see that this
total is not exceeded.
(5) A guarantee given under this section shall be
in the form that the Minister of Finance approves, and the form of guarantee
shall be signed on behalf of the province by that minister whose signature may
be engraved, lithographed or otherwise mechanically reproduced on the bonds,
debentures or other securities in respect of which the guarantee is given.
Agreements
38. The
Minister of Finance, acting on behalf of the Crown, may enter into, execute and
deliver a trust deed, trust indenture or an agreement with the corporation, a
lender, a trustee acting for the holders of bonds, debentures or other
securities of the corporation or other person or company setting out the terms
and conditions of a guarantee of a loan to be made under this Act.
Performance guarantee
39. Subject
to the prior approval of the Lieutenant-Governor in Council, the Minister of
Finance acting on behalf of the Crown may guarantee the performance by the corporation
or a subsidiary of an obligation of the corporation or a subsidiary contracted
by it with a person
(a) to pay money or an instalment; or
(b) to perform, fulfil or observe a covenant,
obligation or provision of an agreement, deed, bond, promissory note or other
document or instrument.
Performance under
guarantee
40. A
payment or advance that the Crown may approve in the exercise of a power
conferred by this Act or be required to make under this Act shall be paid by
the Minister of Finance out of the Consolidated Revenue Fund or, where the
payment is to be made in performance of a guarantee, it may be paid out of
funds provided in the manner prescribed in section 55 of the Financial Administration Act.
Fund established
41. (1) The
corporation shall establish a fund in the name of the corporation which shall
be separate and distinct from the Consolidated Revenue Fund.
(2) All money and revenues of the corporation,
including the proceeds of loans raised by the corporation, when they come into
the hands of the corporation, shall be deposited to the credit of the fund referred
to in subsection (1) and the corporation shall have full authority to
administer the money so deposited for the purposes and objects of this Act.
Financial
provisions to have full effect
42. Notwithstanding
the Financial Administration Act or
another Act or law, paragraph 9(1)(f) and section 41 of this Act shall have full
effect.
Dividends
43. The
corporation shall pay dividends as determined by the Lieutenant-Governor in
Council.
Application of
Acts
44. (1) The
Labour Relations Act applies to the
corporation and its subsidiaries.
(2) All collective bargaining agreements and other
agreements of the corporation or a subsidiary with a trade union, council of
trade unions, employee bargaining agent or affiliated bargaining agent shall
continue in force as if made under the
Labour Relations Act.
(3) A trade union, council of trade unions,
employee bargaining agent or affiliated bargaining agent that is party to a
collective bargaining agreement with the corporation or a subsidiary under subsection
(2) shall be considered to be certified for the purpose of the Labour Relations Act.
(4) Section 11.1 of the Public Sector Restraint Act, 1992 applies to the corporation, a
subsidiary and their employees.
(5) The Mechanics'
Lien Act applies in respect of the corporation, a subsidiary and all
property to which title is vested in the name of the corporation or a
subsidiary.
(6) The Workplace
Health, Safety and Compensation Act applies in respect of the corporation,
a subsidiary and its employees.
Application of
Public Procurement Act
45. (1) The
corporation or a subsidiary is exempt from the Public Procurement Act with respect to procurement in the following
areas:
(a) energy and energy products;
(b) where the corporation or a subsidiary is
acting in a strategic partnership, joint venture, or equity investment with
other public bodies or private sector entities; or
(c) for the purpose of meeting the requirements of
a benefit arrangement.
(2) With respect to procurement activities that
are exempt under paragraph (1)(b) or (c), the corporation and a subsidiary
shall, every 6 months, report to the minister on their procurement activities
and shall include a summary of contracts entered into and the identities of suppliers
to whom the contracts have been awarded.
(3) The minister shall, upon receipt of a report
under subsection (2), send a copy of the report to the chief procurement officer
appointed under the Public Procurement
Act, who shall post a copy of it on the electronic notification system.
Actions
46. (1) Actions,
suits or other legal proceedings in respect of a right or obligation acquired
or incurred by the corporation may be brought by or against the corporation in
the name of the corporation in a court and a judgment shall be carried into
effect by the corporation, and where the judgment is for the payment of money, it
may be enforced by execution against the money, lands and effects of the
corporation as in ordinary cases between party and party.
(2) The corporation is liable in tort for damages
for which, if it were a private person of full age and capacity, it would be
liable in respect of
(a) torts committed by its employees or agents; or
(b) a breach of duty attaching to the ownership,
occupation, possession or control of property.
(3) This section has effect, notwithstanding
anything to the contrary contained in the
Proceedings Against the Crown Act or another Act or law.
(4) This section applies, with the necessary
changes, to a subsidiary.
No liability re:
disclosure of information
47. An
action or proceeding does not lie or shall not be instituted or continued
against the corporation or a subsidiary, an officer, employee or agent of the
corporation or a subsidiary, the Crown or a minister, employee or agent of the
Crown based on a cause of action arising from, resulting from or incidental to
the disclosure of information in accordance with this Act.
Offences
48. (1) A
person who
(a) contravenes this Act; or
(b) interferes with or obstructs a person in the
discharge of his or her duties under this Act
is guilty of an offence and liable on
summary conviction to a fine not exceeding $1,000 and in default of payment of
the fine to imprisonment for a period not exceeding 12 months, or to both a
fine and imprisonment.
(2) The conviction of a person under paragraph
(1)(a) or (b) does not operate as a bar to further prosecution under this Act
for a continuance of the offence.
SNL2015 cA-1.2
Amdt.
49. Schedule A of the Access to Information and Protection of Privacy Act, 2015 is
amended by adding immediately after paragraph (l) the following:
(l.1) section 23 of the Oil and Gas Corporation Act;
SNL2016 cI-2.1
Amdt.
50. The
Schedule to the Independent Appointments
Commission Act is amended by adding immediately after the statutory appointment
reference "Memorial University Act,
paragraph 22(2)(c) and subsection 48(1)" the statutory appointment
reference "Oil and Gas Corporation
Act, subsections 10(2) and 12(3)".
SNL2018 cP-35.2
Amdt.
51. Subsections
8(2) and 8(3) of the Public Bodies Reporting
Act are repealed and the following substituted:
(2) Notwithstanding subsection (1) or any other
Act or regulations, including section 5.4 of the Energy Corporation Act and section 23 of the Oil and Gas Corporation Act, the minister, the Lieutenant-Governor
in Council or the public body may use and disclose information and documents
for the purposes of this Act, including personal information provided under
this Act, in accordance with the Access
to Information and Protection of Privacy Act, 2015.
(3) Notwithstanding the Access to Information and Protection
of Privacy Act, 2015 or any other Act or regulations, including section 5.4
of the Energy Corporation Act and
section 23 of the Oil and Gas Corporation
Act, where the minister requests information and documents from a public
body the information and documents shall be provided to the minister.
SNL2016 cP-41.001
Amdt.
52. Subsection 5(1) of the Public Procurement Act is repealed and the following substituted:
Application
5. (1) This
Act applies to procurement by public bodies, and with respect to the
corporation established under the Energy
Corporation Act and the corporation established under the Oil and Gas Corporation Act, this Act
applies to those corporations and their subsidiaries except as provided in
those Acts.
NLR 81/16 Amdt.
53. The
Schedule to the Public Sector
Compensation Transparency Regulations published under the Public Sector Compensation Transparency Act
is amended by adding immediately after the reference "NL 911 Bureau
Inc." the reference "Oil and Gas Corporation of Newfoundland
and Labrador and its subsidiaries".
Commencement
54. This Act comes into force on a day to be proclaimed
by the Lieutenant-Governor in Council.
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