Below is a link and some details ...

Don't you just love the fact that .. Noront's beefed up chromite deposit seems to wrap it's shiny black paws around the Eagles Nest like a protective mother hen.

"the Government of Canada will have the authority to take any measures in respect of the investmetn that is consideres advisable to protect National security. "

Under the new Part of the Act, if national security threats associated with investments in Canada by non-Canadians are identified, primarily by Canada’s security and intelligence agencies, they will be brought to the attention of the Minister of Industry. Once identified, the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, is responsible for referring the investment to the Governor in Council (GIC) unless the Minister is satisfied that the investment would not be injurious to national security. The GIC then determines whether a review should be ordered. If the GIC orders a review, the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, will conduct the review and, if necessary, submit a report to the GIC with recommendations. The GIC will have the authority to take any measures in respect of the investment that it considers advisable to protect national security. The Act specifies that each step of the review process is to occur within prescribed time periods.

http://www.gazette.gc.ca/rp-pr/p2/2009/2009-09-30/html/sor-dors271-eng.html

Vol. 143, No. 20 — September 30, 2009

Registration

SOR/2009-271 September 17, 2009

INVESTMENT CANADA ACT

National Security Review of Investments Regulations

P.C. 2009-1596 September 17, 2009

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage, pursuant to subsections 35(1) and (1.1) (see footnote a) of the Investment Canada Act (see footnote b), hereby makes the annexed National Security Review of Investments Regulations.

NATIONAL SECURITY REVIEW OF INVESTMENTS REGULATIONS

INTERPRETATION

Definition of “Act”

1. In these Regulations, “Act” means the Investment Canada Act.

PRESCRIBED PERIODS

Minister’s notice

2. For the purposes of subsection 25.2(1) of the Act, the prescribed period is

(a) in respect of an investment referred to in section 11 of the Act, the period beginning on the day on which the investment first comes to the Minister’s attention and ending 45 days after the certified date referred to in subsection 13(1) of the Act;

(b) in respect of an investment referred to in section 14 of the Act, the period beginning on the day on which the investment first comes to the Minister’s attention and ending 45 days after the certified date referred to in subsection 18(1) of the Act; and

(c) in respect of any other investment, the period beginning on the day on which the investment first comes to the Minister’s attention and ending 45 days after the day on which it is implemented.

No order for review

3. For the purposes of paragraph 25.2(4)(a) of the Act, the prescribed period is the period beginning on the day on which the period referred to in section 4 expires and ending five days after that day.

Order for review

4. For the purposes of subsection 25.3(1) of the Act, the prescribed period is

(a) if the Minister sends a notice referred to in subsection 25.2(1) of the Act to the non-Canadian, the period beginning on the day on which the notice is sent and ending 25 days after that day; or

(b) if the Minister does not send a notice referred to in subsection 25.2(1) of the Act to the non-Canadian

(i) in respect of an investment referred to in section 11 of the Act, the period beginning on the day on which the investment first comes to the Minister’s attention and ending 45 days after the certified date referred to in subsection 13(1) of the Act,

(ii) in respect of an investment referred to in section 14 of the Act, the period beginning on the day on which the investment first comes to the Minister’s attention and ending 45 days after the certified date referred to in subsection 18(1) of the Act, and

(iii) in respect of any other investment, the period beginning on the day on which the investment first comes to the Minister’s attention and ending 45 days after the day on which it is implemented.

Ministerial action

5. For the purposes of subsection 25.3(6) of the Act, the prescribed period is the period beginning on the day on which the order for review under subsection 25.3(1) of the Act is made by the Governor in Council and ending 45 days after that day.

Governor in Council order

6. For the purposes of subsection 25.4(1) of the Act, the prescribed period is the period beginning on the day on which the investment was referred to the Governor in Council by the Minister and ending 15 days after that day.

PRESCRIBED INVESTIGATIVE BODIES AND CLASSES OF INVESTIGATIVE BODIES

Investigative bodies

7. For the purposes of subsection 36(3.1) of the Act, the following are prescribed investigative bodies or classes of investigative bodies:

(a) Department of Industry;

(b) Department of Canadian Heritage;

(c) Department of Public Safety and Emergency Preparedness;

(d) Canadian Security Intelligence Service;

(e) Royal Canadian Mounted Police;

(f) Canada Border Services Agency;

(g) Communications Security Establishment, Department of National Defence;

(h) Department of National Defence;

(i) Department of Foreign Affairs and International Trade;

(j) Department of Justice;

(k) Department of Natural Resources;

(l) Department of Transport;

(m) Canada Revenue Agency;

(n) Privy Council Office;

(o) Department of Public Works and Government Services;

(p) Public Health Agency of Canada;

(q) Department of Health;

(r) Department of Citizenship and Immigration;

(s) Department of Finance; and

(t) all provincial, regional and municipal police forces.

TRANSITIONAL PROVISIONS

Minister’s notice

8. (1) For the purposes of subsection 25.2(1) of the Act, the prescribed period is the period beginning on the day on which these Regulations come into force and ending 60 days after that day if

(a) the certified date respecting an investment referred to in paragraph 2(a) falls within the period beginning on March 12, 2009 and ending on the day on which these Regulations come into force;

(b) the certified date respecting an investment referred to in paragraph 2(b) falls within the period beginning on February 6, 2009 and ending on the day on which these Regulations come into force; or

(c) the day on which an investment referred to in paragraph 2(c) is implemented falls within the period beginning on March 12, 2009 and ending on the day on which these Regulations come into force.

Governor in Council review

(2) For the purposes of subsection 25.3(1) of the Act, if the Minister does not send a notice under subsection 25.2(1) of the Act, the prescribed period is the period beginning on the day on which these Regulations come into force and ending 60 days after that day if

(a) the certified date respecting an investment referred to in subparagraph 4(b)(i) falls within the period beginning on March 12, 2009 and ending on the day on which these Regulations come into force;

(b) the certified date respecting an investment referred to in subparagraph 4(b)(ii) falls within the period beginning on February 6, 2009 and ending on the day on which these Regulations come into force; or

(c) the day on which an investment referred to in subparagraph 4(b)(iii) is implemented falls within the period beginning on March 12, 2009 and ending on the day on which these Regulations come into force.

COMING INTO FORCE

Registration

9. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

On March 12, 2009, the Government of Canada passed legislation, the Budget Implementation Act, 2009 (BIA), which amended the Investment Canada Act (ICA). The ICA was amended, among other amendments, by adding a new Part (Part IV.1 Investments Injurious to National Security) which enables the government to review foreign investments that could be injurious to national security. New Part IV.1 is deemed to have come into force on February 6, 2009.

Under the new Part of the Act, if national security threats associated with investments in Canada by non-Canadians are identified, primarily by Canada’s security and intelligence agencies, they will be brought to the attention of the Minister of Industry. Once identified, the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, is responsible for referring the investment to the Governor in Council (GIC) unless the Minister is satisfied that the investment would not be injurious to national security. The GIC then determines whether a review should be ordered. If the GIC orders a review, the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, will conduct the review and, if necessary, submit a report to the GIC with recommendations. The GIC will have the authority to take any measures in respect of the investment that it considers advisable to protect national security. The Act specifies that each step of the review process is to occur within prescribed time periods.

The objective of the National Security Review of Investments Regulations (Regulations) is to prescribe these time periods, as well as the investigative bodies with which confidential information can be shared and which may use that information for the purposes of their own investigations.

Description and rationale

The Regulations prescribe the various time periods within which the Minister of Industry and/or the Governor in Council must take actions to trigger a national security review, to conduct the review, and, after the review, to order measures in respect of the reviewed investment to protect national security. The Regulations also provide a list of investigative bodies with which confidential information can be shared and which may use that information for the purposes of their own investigations.

(1) The Regulations prescribe the time periods applying to the various steps in the national security review process (sections 2, 3, 4, 5 and 6)

New Part IV.1 of the ICA authorizes the government to review investments that threaten to impair national security and provides that the Governor in Council may take measures that it considers advisable to protect national security. Under the legislation, the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, may refer (under subsection 25.3(1)) a transaction to the GIC to determine whether a national security review should be ordered. Once the GIC orders a review, the Minister must send a notice to the investor (under subsection 25.3(2)) that the investment will be reviewed.

Where the Minister of Industry has reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security, the Minister has the option (under subsection 25.2(1)) to notify the non-Canadian investor that the investment may be reviewed. If the Minister notifies the investor in such a manner and refers the investment to the GIC, the GIC still must decide whether to order a national security review of the investment (under subsection 25.3(1)).

In both cases, under the Regulations (i.e. notices under subsections 25.2(1) and 25.3(2)), the time period within which the Minister must give the investor the first notification of a review, or possible review, runs from the time the Minister becomes aware of the investment up to the date that is 45 days from the relevant starting point. For reviewable investments, the 45-day period begins on the date of certification of the application; for notifiable investments, it begins on the date of certification of the notification; for all other investments the 45-day period begins on the date of implementation of the investment. Where a notice is sent to an investor under subsection 25.2(1), the GIC has 25 days from the date of the notice to order a review of the transaction under subsection 25.3(1).

Once a review has been ordered by the GIC, the Minister of Industry would consult with the Minister of Public Safety and Emergency Preparedness, and other concerned departments and agencies as appropriate. Following these consultations, if the Minister is satisfied that, or unable to determine whether, the investment would be injurious to national security, the Minister must submit a report, with recommendations, to the GIC (under subsection 25.3(6)). Under the Regulations, the time period for the Minister to submit the report and recommendations to the GIC is 45 days from the date on which the GIC issued the order for a review of the investment. The GIC (under subsection 25.4(1)) may then order any measure it considers advisable to protect national security, including not allowing the investment, attaching conditions or requiring the foreign investor to divest itself of its investment. Under the Regulations, the time period within which the GIC has to make an order is 15 days from the date on which the Minister referred (i.e. submitted a report and recommendations) the investment to the GIC for consideration. The Minister of Industry (under subsection 25.4(2)) is then required to notify, without delay, the investor of the GIC order.

After performing the review, if the Minister of Industry is satisfied that the investment would not be injurious to national security, the Minister (under paragraph 25.3(6)(b)) must send the investor a notice indicating that no further action will be taken in respect of the investment. The time period for the Minister to send this notice to the investor is 45 days from the date on which the GIC issued the order for a review of the investment.

In cases where the Minister has sent a notice to the investor under subsection 25.2(1) and no order for review of the investment has been made, the Minister (under paragraph 25.2(4)(a)) must send a notice to the investor indicating that no order to review the investment will be made. The time period for the Minister to send this notice to the investor is 5 days from the last date on which the GIC can order a review of the investment (i.e., 30 days from the date the Minister sent the notice under 25.2(1)).

(2) The Regulations prescribe the investigative bodies and classes of investigative bodies (section 7)

The Regulations list certain investigative bodies (e.g. Department of Public Safety and Emergency Preparedness; Canadian Security Intelligence Service; Royal Canadian Mounted Police; Canada Border Services Agency) or classes of investigative bodies (e.g. provincial, regional and municipal police forces) to which pertinent information concerning investments can be communicated or disclosed for the purposes of national security reviews in accordance with new subsection 36(3.1) of the Act and which may use that information for the purposes of their own investigations related to national security.

(3) The Regulations provide transitional provisions to prescribe time periods for certain investments (section 8)

The Regulations provide transitional provisions to prescribe the time periods within which steps should be taken for national security reviews of investments that were implemented, or for which notifications or applications for review were filed, before the date of coming into force of the Regulations. These provisions provide that, for investments covered by the transitional period, the Minister of Industry must notify the non-Canadian investor of a review (a notice sent under subsection 25.3(1)), or possible review (a notice sent under subsection 25.2(1)), within 60 days of the coming into force of the Regulations.

Consultation

The Regulations were published in the Canada Gazette, Part I, Volume 143, No. 28, on July 11, 2009, followed by a 30-day comment period, which ended August 10, 2009. The comments received from various stakeholders, and the government’s response to those comments, can be summarized as follows:

(1) For notifiable investments, the time period within which the Minister must give the investor the first notice of a review, or possible review, should end 45 days after date of certification of notification for these investments (i.e. the same as for reviewable investments). The draft Regulations proposed that the time period would end 45 days after the later of the date of certification of the notification or the date of implementation of the investment. The recommendation to change the time period to have it end 45 days after the date of certification of notification was accepted as it will enhance certainty among investors making these types of investments in Canada and have no impact on the existing filing requirements provided for in the ICA. Investors who are concerned that their notifiable investment could be subject to a national security review will have certainty that their investment will not be subjected to a national security review if they file a notification and do not receive a notice that their investment is being reviewed, or may be reviewed, within 45 days of that filing.

(2) For investments that are neither notifiable nor reviewable (i.e., investments subject to national security review provisions but not net benefit review provisions or notification requirements), non-Canadian investors making investments should be given the option to a file voluntary notification and the 45-day period should end 45 days after the date of certification of that notification. This recommendation was not accepted since such a voluntary notification system is not seen as necessary given that national security reviews are expected to be infrequent and the majority of investors will not be affected by this new mechanism. Furthermore, creating a new notification system for transactions that are neither notifiable nor reviewable under the ICA may result in further delays in the implementation of these investments than would be the case in the absence of such a system.

(3) Any new notification filing should be subject to the confidentiality provisions of the Act. This recommendation was not accepted as no new notification filings are being put in place under the Regulations. The existing filings (review applications and notifications) are already subject to the confidentiality provisions contained in the Act and, therefore, cannot be disclosed other than in accordance with the limited exceptions in the Act.

(4) The term national security should be explicitly defined and national security reviews should take place according to concrete, objective, and transparent criteria. This recommendation was not accepted since national security threats are dynamic in nature and, therefore, constantly evolve. Neither Part IV.1 of the ICA nor the Regulations define the term “national security” since future threats to national security cannot be predetermined and any such definition may limit the government’s flexibility to respond to future threats.

The Regulations stem from amendments to the Investment Canada Act in Bill C-10, the Budget Implementation Act, 2009, which were based on recommendations made by the Competition Policy Review Panel. The Panel was mandated in July 2007 to review Canada’s competition and investment laws and propose ways to boost Canada’s competitiveness. The Panel consulted widely, hearing from dozens of stakeholders, reviewing over 155 written submissions, and holding thirteen formal cross-country roundtables. Core recommendations focused on becoming more open to investment, increasing transparency, streamlining processes, and protecting Canadian interests.

Implementation, enforcement and service standards

For more information, investors may visit Industry Canada’s Web site (www.ic.gc.ca/eic/site/ica-lic.nsf/eng/Home) or contact Investment Review Division personnel who may be reached by: telephone at 613-954-1887; fax at 613-996-2515; secure fax at 613-954-3003, or email at: investcan@ic.gc.ca.

Industry Canada does not anticipate the requirement for any significant increases to human or financial resources in order to implement the Regulations. The existing compliance and enforcement mechanisms are sufficient and will be applied as necessary.

Contact

Colette Downie
Director General
Marketplace Framework Policy Branch
Industry Canada
C.D. Howe Building, East Tower, Room 1046A
235 Queen Street
Ottawa, Ontario
K1A 0H5
Telephone: 613-952-0211
Fax: 613-948-6393

Footnote a
S.C. 2009, c. 2, s. 456

Footnote b
R.S., c. 28 (1st Supp.)