Treaty Frequently Asked Questions2021-02-23T18:34:18+00:00

K’òmoks First Nation Treaty Frequently Asked Questions

Looking for Answers? Here you can find frequently asked questions regarding the treaty process and how it might affect you.

What happens if the Treaty is approved?2020-06-10T23:53:43+00:00

If the Treaty is approved by KFN, it will then be ratified by B.C. and Canada and then after the Effective Date, we will begin to implement all aspects of the treaty, in accordance with the KFN Constitution and the Implementation Plan. The “Effective Date” will likely be around two years after K’ómoks ratifies the Treaty. A detailed Implementation Plan will be developed and shared with the community.

What happens if the Treaty is not approved?2020-06-10T23:54:10+00:00

There are several possibilities. It is possible that all Parties may agree to continue negotiations and seek another ratification vote like Lheidli T’enneh (Prince George First Nation), but it is more likely that K’ómoks will lose the opportunity to move forward in negotiations in the B.C. Treaty Process.

Once the treaty comes into effect, will there be a cash payout to all K’ómoks members?2020-06-11T00:00:15+00:00

The decision on what a Members benefit package would look like will be decided by Chief and Council, in consultation with K’ómoks Members.
K’ómoks researched member benefits of various modern Treaty Nations and concluded that a number of Nations have provided a one-time cash payment to each elder at the age of 65 in the amount of two-thousand ($2,000) to five-thousand ($5000) dollars upon the Effective Date. Alternatively, modern Treaty Nations have provided an annual health and wellness incentive of two hundred ($200) to five hundred ($500) per member 18 years and over that can be spent on anything to do with health and wellness. In addition, most of the communities have seen collective benefits such as; new community facilities, gathering spaces, and enhanced food security for members through various fisheries programs, enhanced economic opportunities etc.
There are a number of benefits that Members will see from Treaty which include: expression of self-government; ability to create laws and make them suit the K’ómoks and its Members; more flexibility for programs and services dollars; ownership, stewardship, and jurisdiction of lands; fiscal accountability; realization of commercial opportunities that allow for enhanced Member benefits.

Will we gain anymore health benefits?2020-06-11T00:00:58+00:00

The health benefits that ‘status Indians’ receive from British Columbia and Canada will continue post-effective date of the K’ómoks Treaty. Any additional funding provided by K’ómoks in the future for health and wellness will apply to individuals enrolled in the K’ómoks Treaty (status and non-status Indians).

What is a core treaty?2020-06-11T00:03:47+00:00

There is no real definition of what a Core Treaty is. The concept is that we focus on keeping in the treaty, those things that are directly related to “Rights Recognition”. This would include the Right to Self-government and law making, harvesting rights (fish, wildlife, migratory birds and gathering), as well as rights to lands, water, and some fiscal matters. These matters make up much of the core elements of a treaty.

There are numerous matters that have been included in the older treaties that are procedural or that happen before the treaty takes effect, and these do not need to be a part of the treaty. For example, ratification takes place before the treaty comes into effect. Dispute resolution is all procedural as are matters related to the Indian Act transition chapter. There are also many elements in the Self-government chapter that are procedural or that restrict how the right is exercised. The K’omoks treaty team feels that many of these matters need not be a part of the Core Treaty or Rights Recognition Agreement.

There are also matters that are strictly operational which are more about the details of how a treaty is implemented as opposed to the recognition of rights. These can be placed in an operational agreement that is not a part of the treaty so that they can be easily changed with the agreement of the Parties, otherwise changes would require federal and provincial legislation.

For example, the Access chapter is mostly about the access by third parties to K’omoks Treaty Lands, so this should not receive constitutional protection. Because of this, the old treaties were large and unreadable. We are trying to modernize the old treaties and keep only those key matters linked with the recognition of rights in the treaty. Other matters can go either in the appendix or side agreements or other constructive arrangements or may not be needed at all. It is a long tedious exercise, but it will make for a better and more understandable document.

Is it true that under a core treaty you are just punting difficult questions to the future? And if so, I hear that is not always good (negotiators leave, resource not there anymore to continue, etc.).2020-06-11T00:04:44+00:00

Some other nations are taking a different approach. For example, we understand that some First Nations are using the Core Treaty concept to build treaties incrementally if they choose not to negotiate all elements of the treaty now. It may be that some Nations might want to leave more difficult issues for the future, and that is their right. As K’omoks is well advanced in treaty negotiations, we want to negotiate a comprehensive Nation to Nation Relationship, but not all that relationship should be in the treaty and receive constitutional protection. Only those matters involving recognition of K’omoks rights should be included in a treaty and receive constitutional protection, other matters can go into the appendix and side agreements or other constructive arrangements. We will not be “punting” the hard issues. But it will take time.

I heard someone say that our aboriginal rights under core treaty will be protected in Canadian Constitution. Aren’t they already? And what are these rights – I feel everything is super regulated. What is an aboriginal food fish right?2020-06-11T00:05:31+00:00

That is correct, Aboriginal rights are already protected under the Constitution. Section 35 states that the Aboriginal Rights and Treaty Rights of the aboriginal peoples of Canada are recognized and affirmed.

However, the rights are also subject to conservation, public health, and public safety. Rights are also not absolute. The Crown can also infringe aboriginal or treaty rights if such infringements are justifiable.

The aboriginal right to fish for food is just that, it is a right to go out and fish for food. However, as the right is subject to conservation, public health and public safety, the right is highly regulated. Usually permits are required to fish for food and these set out the timing, location, gear, and amount that can be fished. Treaty rights are also subject to conservation, public health and public safety and will need to be regulated accordingly, but the regulation of that harvest will be done by K’omoks law.

Currently, as K’omoks does not have a lot of fishing capacity, A’Tlegay does most of the food fishing for K’omoks, or members get their food fishing permits through A’Tlegay. K’omoks will have to decide if it wants to have A’Tlegay continue to do the food fishing or it wishes to develop more internal capacity.

There are also strong arguments to do a Fish Reconciliation Agreement with the five A’Tlegay First Nations because we know that negotiations in an aggregate group can produce better results. We are currently exploring that option, and if you come to the next quarterly meeting on the 19th of October you will be able to get a detailed update on that.

Why does KFN lands and money offer seem to be so small, even in comparison to Nations of a similar size?2020-06-11T00:06:35+00:00

Yes, the amount of money and land seems smalls compared to some First Nations. However, the reality is that the fiscal mandate that both Canada and British Columbia have is primarily based on a per capita formula. In other words, the land and cash values of any treaty will be similar, with the difference being in population and the type of land.

For example, in the Tsawwassen treaty, they received a relatively small amount of land, but it is of high value and they were able to quickly develop it, creating numerous economic opportunities. In the case of Tsawwassen (just over 400 members), they negotiated and received approximately 724 hectares of treaty settlement land for. This includes approximately 290 hectares of former reserves and 372 hectares of former provincial Crown land. The Tsawwassen First Nation will also own in fee simple an additional 62 hectares of other land comprised of the Boundary Bay and Fraser River parcels, but this land will remain under the jurisdiction of Delta.

The Nisga’a received a much larger amount of land because of their population and location, but they have not been able to develop the same economic opportunities as Tsawwassen. The Nisga’a Treaty Team negotiated and received approximately 200,000 hectares of land for their 5,500 Nisga’a members.

We are still waiting for our final land and cash offer. Both the land and cash amount will increase significantly from what is in the AIP, but we do not know what that will be exactly. In any event, the real asset value in the K’omoks treaty will be in the location of the land and what can be done on that land.

What is the cost of treaty to individuals – should we not know more by now? We lose gas and sales tax exemption at certain point, but there are more costs. There will be property tax. How will that work for us? There will be income tax. Will other things currently free be charged to us (i.e., probating a will?). Well probating a will was free. These costs may not sound huge, but they are if you are not making a living wage or are on a fixed income.2020-06-11T00:07:15+00:00

At this point, it is difficult to say what the tax model will look like. Under the old treaty model, the K’omoks First Nation would collect the sales tax, property tax and other tax revenues, so there would no net loss, but members would pay taxes to the Nation. However, we are currently in negotiations with a group First Nations in Stage V of the BC Treaty Process and the Department of Finance to maintain the existing tax exemption. Our position is that the tax exemption should remain until K’omoks decides to draw down tax powers.

With respect to other matters, as you will continue to be a status Indian, you will be eligible for the same types of programmes and services that other status Indians are entitled to. This includes uninsured health benefits, education benefits and housing benefits currently offered to status Indians from the Department.

Some say the new lands and monies will offset costs of treaty. It would if we had faith that we would benefit from our businesses. We have housing shortage now with revenue being generated. Most of the jobs I see created are not paying a living wage, but I could be wrong.2020-06-11T00:08:35+00:00

The purpose of a treaty is to create opportunities. A treaty cannot guarantee a job, or an income or a standard of living, for individual members. However, it does guarantee access to existing programmes and services that Indians are entitled to under the Indian Act and the universal social programmes other Canadians are entitled to.

A treaty is also intended to provide sufficient funds to for K’omoks government operations. In that regard, we have done well. Currently the band receives about $207 thousand for band governance, which is separate and in addition to the monies the band receives for programmes and services delivery. What is currently referred to as band governance funding will increase from the $207 thousand amount to just over $2 million annually. That will allow the K’omoks government to pay its employees the same as provincial employees receive for their services. This is of course in addition to the programme and services delivery funding that K’omoks will continue to be received on an annual basis.

With respect to business opportunities, once the lands negotiations are concluded, K’ómoks would become one of the largest private landowners in the Comox Valley, depending on the final outcome of land negotiations. There are numerous economic development opportunities that will become available as a result of that. But a treaty only creates opportunities, it will be up to K’omoks in its capacity as a self-governing and self-determining nation to figure out what it wants to do with those opportunities.

More work needs to be done on projecting the economic potential of a K’omoks treaty. But at the same time, potential is only useful if you can take advantage of it in the right way.

Are we ready for treaty? And if not, how fast can we be ready? I am talking internal processes, procedures, HR, etc. I have not seen a strategic plan for KFN? I could be mistaken; and a CCP is not same thing. What about our election code? Membership code? Etc.2020-06-11T00:09:14+00:00

It is always a matter of opinion as to whether or not a nation is ready for a treaty and how fast it should move forward. I think the real question is whether K’omoks wishes to continue with its small land base under the Indian Act where the Minister is in control of every aspect of K’omoks activities or whether K’omoks wants to move forward as a self-governing nation. On this question, every eligible member will have an opportunity to express their opinion by way of a ratification vote.

Both the band administration and the treaty team have strategic plans. These were presented at the last annual people’s assembly. As the treaty team’s strategic plan is about the negotiating priorities and strategy for the 2019/2020 fiscal year, its details are not public.
The KFN does have policies and procedures and it also has its own laws. As you know, K’omoks has a Financial Management Act, with conflict of interest rules and a Land Code. It also has Human Resource policies and procedures.

If those are not being followed, a K’omoks treaty will include a mechanism to ensure that the K’omoks government is held accountable for its actions.

How is a Core Treaty different from what we have been talking about for 10 years?2021-02-17T01:28:11+00:00

We have explained the meaning of a Core Treaty before in communications materials.  You should look at those materials as well. We might stop using term Core Treaty because it is confusing to people. It basically means that we are removing details from the treaty language that don’t need to be there and putting that detail in appendices or side agreements.  This is intended to make the treaty more understandable by including only those matters that are important to be protected by the Constitution of Canada. A Core Treaty removes unnecessary process and detail. For example, right now we have a Ratification Chapter in the draft K’ómoks Treaty.  Because we ratify the treaty well before it comes into effect, or before it becomes law, we do not need to have that chapter in the treaty – it can be in a side agreement.

Will members get to vote on a Core Treaty?2021-02-22T20:23:43+00:00

Yes, current members and eligible members will be able to vote on the K’ómoks Treaty, regardless of whether or not we call it a Core Treaty.

Does the Treaty affect K’ómoks people off-reserve? How?2020-06-11T00:14:16+00:00

Yes. The Treaty creates an opportunity for economic development on KFN lands and through the forestry tenures. These opportunities will result in increased revenues to the K’ómoks Nation which will then allow for improved programmes and services to all Members. All KFN status Indian Members remain eligible for all Indigenous programs and services from Indian Affairs which are not included in the KFN Treaty package. All status Indian Members will also be impacted by our negotiations on the continuation of the section 87 Indian Act tax exemption. All K’ómoks Members will also be entitled to benefit from any Members benefit package that may be instituted, subject to specific conditions, such as limiting benefits to either elders or youth.

Is KFN aboriginal title to lands extinguished under treaty process?2020-06-11T00:14:40+00:00

No, under a K’omoks treaty rights will not be extinguished. That is the old treaty model. A K’omoks treaty will specifically recognize Aboriginal Title. And, under a K’omoks treaty, if new rights are recognized by the Courts, those will get incorporated into a K’omoks Treaty.

What can we do differently when K’ómoks reserve lands become Treaty Settlement Lands (TSL)? What can we do now with our reserve lands?2020-06-11T00:18:50+00:00

There are limited economic opportunities on the reserve lands currently occupied by K’ómoks. Our land base will change from 813.5 acres, to over 12,500 acres owned by K’ómoks once the Treaty is fully implemented.

Currently, we do not own our Indian reserves. These are owned by the federal government. We have the right to live on these reserves, but we cannot do many things on them without the permission of the Minister of Indian Affairs. Now that the Land Code is in effect, we have a lot more say over our I.R. lands as Ministerial consent will no longer be required.

We cannot easily get a mortgage on our own from a commercial lender for a house on reserve because we do not actually own the Indian Reserve land where the house is located.

After the Treaty, K’ómoks First Nation will own the Treaty Settlement Lands, including I.R.s and thousands of acres of more land which is currently Provincial and Federal Crown land. We will be able to allocate ownership of these lands to our people and if our laws provide for it, others. These people may use their lands to get a mortgage from the bank without needing the help or guarantee from the Minister of Indigenous Crown Relations (formerly Indian Affairs) or the band.

K’ómoks lands will have a commercial value after the treaty. Currently, they have little real estate/commercial value.

All laws for K’ómoks Lands will be established by the K’ómoks government in consultation with K’ómoks Members, and not the Minister of Indian Affairs. K’ómoks will be able to enact land use planning laws to determine which kind of development can take place on our lanes, levy property taxes, and be the land developer.

Under our laws, we will be able to set out which lands will always remain community lands and which lands we might want to sell or lease to non-members for economic development purposes and give legal force to our land use plans.
Non-member residents will pay land taxes and income taxes to KFN.

KFN will own the forests on TSL and the subsurface resources beneath them if they are currently owned by British Columbia or if they are returned to the crown by current owners.

KFN laws will apply to on TSL whether they are KFN members or not.

Under treaty, will we have clear title? Can we sell our homes to anyone, including Non-aboriginals?2020-06-11T00:19:27+00:00

Treaty enables us to have clear title to our lands. Treaty also enables us to sell lands to third party non-members if we wish. Treaty also enables us to place restrictions on whom we sell lands to. We have not yet determined what sort of restrictions there will be on the sale of lands. The current thinking, from consultation with our band members, is that many KFN that lands at our K’ómoks I.R. # 1 on the K’ómoks Estuary should only be owned by KFN Members. This is something the K’ómoks First Nation will eventually decide in consultation with the community, and subject to our land use planning process.

How is treaty going to generate funding to existing K’ómoks members?2020-06-11T00:20:42+00:00

For the most part, the Treaty will create opportunities for members, but it is not a social programme. At the same time, the Treaty will have several sources of revenues. There will be numerous economic opportunities created through the ownership of K’ómoks Lands and well as through the new forest tenures .There will be the income from the Capital Transfer, tax revenues (property tax, income tax and sales tax from Members and non-members), and from Revenue Sharing which is still being negotiated. These revenues will flow to the K’ómoks First Nation. There may also be money from Impact Benefit Agreements with major developers and governments in our Territory who impact our rights or interests or who wish to partner with us.

The opportunities listed above will allow K’ómoks to offer enhanced and more flexible programs and services. This could include additional funding for: education, training, and capacity building; new community gathering spaces & community facilities; enhanced neighborhoods (parks, green space, side-walks, speed bumps etc.), additional food security through additional food distribution; health and wellness initiatives; additional incentives for youth, elders, and members etc.

What rights are being negotiated?2020-06-11T00:25:35+00:00

Because the Department of Fisheries and Oceans did not provide us with an honorable offer, K’ómoks will not have a Fish Chapter. Instead, K’ómoks members will exercise their Aboriginal right to fish, as in the past.

In addition, K’ómoks is working with the Atlegay member nations on a Fish Reconciliation Agreement that will include money to acquire commercial licenses and gear, processing facilities and aquaculture licenses and tenures so K’ómoks members can participate in the fishing economy.

The Fish Reconciliation Agreement will also include a governance component as well as capacity funding and mechanism to strengthen our guardian program.

Will K’ómoks play a role in management of fisheries?2020-06-11T00:26:44+00:00

Our position is that K’ómoks must play a role in the management of fish and sea resources through not only a local Fisheries Management Committee, but also by taking part in any regional management committees established over all or a portion of our traditional territory and domestic fishing area. We are currently working on this jointly with First Nations who are members of Atlegay. In addition, K’ómoks is negotiating shared decision-making over the Oyster, Salmon and Puntledge River systems.

Also, we have negotiated the establishment of the Aquaculture Review Committee (ARC) which reviews for approval (or not) all new and renewed aquaculture tenures in the territory.

Can we call our fishing territory a name or escort people off our territory?2020-06-11T00:27:36+00:00

We can call our fishing territory whatever we like –But to formalize that name may be difficult because many other First Nations fish in the same are and it may be hard to get agreement on a common name.

We will not be able to escort people out of our fishing territory as we do not own it, we fish their like other people.

Will we be able to continue to hunt wildlife?2020-06-11T00:28:42+00:00

Yes. We will be able to hunt as we do now for domestic purposes, subject only to measures necessary for conservation, public health, or public safety. We continue to negotiate for shared decision-making over wildlife and wildlife management in our territory.

What happens when there is development in the harvest area?2020-06-11T00:29:27+00:00

When there is a proposal to develop land that will affect our ability to hunt, B.C. or Canada will Consult with K’ómoks to lessen the impact on our hunting before allowing the development to take place. B.C. must ensure that development does not deny the K’ómoks the opportunity to harvest wildlife.

If we have an undefined right to fish, isn’t that hard to implement? And commercially we are dependent upon the goodwill of neighbours (A-Tlegay)? If we have an undefined right to fish, isn’t that hard to implement? And commercially we are dependent upon the goodwill of neighbours (A-Tlegay)?2021-02-16T22:02:21+00:00

We have an undefined aboriginal right now, but that is being implemented by individual fishers who go out and catch fish for food.  A-Tlegay also provides us with food fish. Once there is a treaty, that will continue, and in accordance with an annual fishing plan developed by K’ómoks, based upon our needs.

We are currently working with the A-Tlegay member First Nations on a commercial component. A part of that fishery will include a K’ómoks community fishery which will be a commercial fishery for only K’ómoks members. While we are negotiating with the A-Tlegay First Nations to give us a stronger voice, and a portion of our commercial fishery will be exercised in conjunction with the A Tlegay First Nations, there will also be a K’ómoks commercial fishery.

When did the 10-year renewal thing kick in?2021-02-17T00:57:17+00:00

In 2017 a group of Treaty nation, provincial and federal representatives formed a group called the “Lead Tables Working Group”. The purpose of this group was to address the hard issues that were holding nations back from achieving successful Treaties. There were four areas addressed at that time; Recognition and Predictability (for Aboriginal Rights), Orderly Process (addressing potential new rights or court cases), Periodic Renewal (opportunity to renegotiate parts of the Treaty as necessary), and Consultation (strengthening the duty to consult under Treaty).

The Periodic Renewal is meant to allow the Treaty to evolve with the world. Areas that could be renegotiated include any changes to law or policy that impact our rights, changes that arise because of unforeseen circumstances and a “ME TOO” clause that will allows us to negotiate any innovations that another First Nation get in their treaty that we want.

Is the ten-year time frame negotiable? It seems like a long time to have to wait to deal with something like fisheries.2021-02-17T01:00:36+00:00

At this time, the 10 years is agreed to by BC and Canada in the K’ómoks Treaty. The original proposed timeline for Periodic Renewal was 25 years, which was argued to be too long. In terms of negotiating Fisheries, until DFO is able to agree to an offer that meets the need of K’ómoks, we will fish as always under our Aboriginal Right, and according to an Annual Fishing Plan that K’ómoks will draft, implement, and inform DFO of.

What are the pros and cons of this approach?2021-02-17T01:03:12+00:00

Pros:

  • The aboriginal right to fish continues
  • Negotiations will not be dragged down because DFO has a poor mandate
  • DFO has a chance to go back to cabinet to get a better mandate
  • Gives us an opportunity to work with the A-Tlegay First Nations to negotiate the commercial component
  • We can always negotiate a Comprehensive Fish Chapter during Periodic renewal

Cons:

  • Do not have constitutionally protected FSC allocations
What is the benefit of being a part of Atlegay if we have a Treaty?2021-02-17T01:33:08+00:00

We have rejected the Department of Fisheries and Oceans (DFO) fish offer because it was simply inadequate. We will not have a complete Fish Chapter in the Treaty, only the acknowledgement that the treaty will not affect the K’ómoks Aboriginal Right to fish.

With Atlegay, we are negotiating a Fish Reconciliation Agreement for an economic fishery, independent of the Food Social and Ceremonial (FSC) fishery and independent of the treaty. Negotiating collectively with the 5 Atlegay First Nations will increase our chances of success against the DFO. There is power in numbers.

Atlegay also makes commercial fishing licences available to our members and delivers a number of fisheries related programs, including the collection and distribution of some of our FSC fishery.

Do the fisheries negotiations include more than just fish? How are our FSC protected?2021-02-17T01:35:20+00:00

Fisheries negotiations generally include fish for Food, Social and Ceremonial (FSC) purposes, dollars to purchase commercial licences and gear, and collaborative management arrangements.

In our fish negotiations, we have proposed that:

  • The K’ómoks aboriginal right remain unaffected by the treaty
  • That we negotiate a commercial component in conjunction with the 5 Atlegay Nations, and that will not be part of the treaty; and
  • K’ómoks negotiate a collaborative fisheries management agreement
What will our economic fishery look like?2021-02-17T01:36:52+00:00

The economic fishery is being negotiated with the 5 Atlegay First Nations, outside of the treaty. It will likely have two components. The first component will be a fund to purchase licences and gear, including aquaculture licences, as well as funds for processing. This will be managed and controlled by the 5 Atlegay First Nations, and we will own 18% of the assets, based on the Atlegay sharing formula.

There will also be a K’ómoks specific fishery (communal fishery) managed and controlled by K’ómoks with an emphases on the Puntledge fishery, aquaculture and processing.

Will we get a fair deal from being a part of Atlegay?2021-02-17T01:39:13+00:00

Under the Atelgay sharing arrangement, we are entitled to 18% of the assets.

What kind of role will K’ómoks have in planning on lands within our traditional territory?2020-06-11T00:33:35+00:00

Through a Collaborative Management Agreement, K’ómoks will have a say in the Parks and Protected Area Management Planning Process. K’ómoks will benefit from a clear process for putting forward our interests and ensuring that K’ómoks gets a fair share of the benefits, including economic benefits, from these areas.

How will K’ómoks benefit from shared decision-making?2020-06-11T00:34:13+00:00

K’ómoks will have a say in issues, management and areas and resources within the K’ómoks Territory. This will be done through a Shared Governance Agreement, the details of which are set out in the Shared Governance Chapter. This will allow us to promote responsible management, protect our interests and rights and continue to ensure benefit from the lands and resources of our K’ómoks Territory for our future generations.

What is an example of a public planning process?2020-06-11T00:34:43+00:00

An example of a public planning process is the Regional Growth Strategy. This is a Comox Valley-wide planning initiative looking at where urban growth will be focused until 2050. This planning initiative invites the public to open meetings where people can share their concerns.

Land-use planning processes are another example of public planning process. There was a public land-use planning process on the central coast and northern Vancouver Island in which we participated.

What kinds of laws can we make about forestry?2020-06-11T00:36:49+00:00

K’ómoks may make laws about all K’ómoks forest resources and forest practices except for laws applying to ‘scaling’ and ‘timber marking’ of timber moving off K’ómoks TSL. The K’ómoks owns all Forest Resources on K’ómoks lands. Except for the areas of wildfire and forest health, K’ómoks forest law prevails over B.C. law. K’ómoks will be protecting from the potential financial impacts of forest wildfires by a Wildfire Suppression Agreement with Canada and B.C. If there is a fire on TSL B.C. will put it out as if it were on Provincial Crown Land and costs will be covered as per the Wildfire suppression Agreement.

K’ómoks laws and consultation with the KFN membership will determine where forest management practices including logging may take place. The rate, location and type of practices will be prescribed by KFN Law.

Are we going to require storage facilities for water?2020-06-11T00:38:57+00:00

Not for our own use, nor for water from the Puntledge or in in the foreseeable future, once there is a mechanism to deliver water to the South Lands from Comox Lake. But for the other rivers and other TSL parcels, if any of our future developments need that water, we will need storage facilities for times of “low-flow,” which occur usually from July to October. This is costly but deals or partnerships with other players in the Valley can reduce our costs. Adding to our water supply from groundwater would allow for reduced water purification costs and help keep the water storage facilities full while bridging the low flow times of the year from our water reservations on the Hart, Trent Puntledge, Oyster and Salmon Rivers.

Will K’ómoks be able to make environmental laws?2020-06-11T00:41:37+00:00

Yes, K’ómoks will be able to make laws that apply on K’ómoks lands for:

  • Environmental Assessment for K’ómoks projects
  • Environmental Management to protect, preserve and conserve the environment in areas like pollution, waste management, air, and water quality.
  • Zoning and Land Use designations to protect the environment and direct development to appropriate lands/waters while protecting those values of significance to K’ómoks.
Do we not have a right to access fresh water right now?2020-06-11T00:38:08+00:00

Right now, K’ómoks has a small allocation of water from the Puntledge River to the Puntledge Reserve #2, but this is not enough to ‘service’ any significant development. K’ómoks has come to agreement with the City of Courtenay and the Regional District to provide adequate water to develop Puntledge I.R. #2.

In Treaty Negotiations K’ómoks has negotiated treaty protected water reservations:

Puntledge River – 1,408 cubic decametres; Trent River 3,362 cubic; Oyster River 3,807 cubic decametres; Hart Creek (Washer Ck.)1,668 cubic decametres totalling 10, 245 Cubic Decameters (10. 245 billion litres) annually. Additionally, KFN has access to an additional 5,000 cubic decametres for 25 years through an agreement with B.C. Hydro which we would like to turn into a Constitutionally protected treaty water reservation, We are also close to concluding a further water reservation on the Salmon River.. One of the limitations to water reservations is the seasonable availability of water from the streams on which these reservations apply. This is enough water to provide the annual water needs of over 30,000 people.

Groundwater:

KFN has just completed year 1 of a 2-year groundwater study to support negotiations of groundwater reservations for each of our TSL parcels. In 2020 KFN drilled 2 wells to monitor the aquifers (underground lakes/rivers) to bolster the KFN water supply. Groundwater, along with water storage facilities could form part of the solution to the required supply of water for K’ómoks TSL.

Who will benefit from our taxes?2020-06-11T00:42:59+00:00

Most of the taxes collected would be transferred back to the K’ómoks government to support, K’ómoks government programs and services. They would be used for the benefit of K’ómoks Members, through the provisions of additional programs and services and building our infrastructure.

When will the Implementation Plan be ready?2020-06-11T00:44:07+00:00

The Implementation Plan will be developed while Treaty negotiations are still in progress and completed prior to the Effective Date of Treaty.

What does the Implementation Plan contain?2020-06-11T00:44:47+00:00

In most chapters there is language that requires a Party or all Parties to do something. Additionally, there are components of the Treaty which KFN may not decide to ‘draw down’ until things can be rolled out in an orderly way. For example, there are many areas of law-making authority which are not required at Effective Date, but which KFN may wish to have for later. There may be other opportunities which the Treaty brings to KFN, such as future additions of Treaty Settlement Lands, which may not be finalized for years to come. All of this will be part of the Implementation Plan. The plan also includes activity sheets, a communications strategy, and operational guidelines for the KFN-B.C.-Canada Implementation Committee.

Will we have a status card or a treaty member card?2020-06-11T00:45:10+00:00

All Status Members will always have a Status Card. The Treaty Member card is an operational question that we have not made any decisions around. It is likely that each K’ómoks Member will have a treaty card. It will be necessary to carry the card when exercising harvesting rights (hunting, fishing etc.).

Re: spouse membership. Who decides if a non-member spouse gets benefits? I want my spouse to receive benefits if they are paying into the reservation.2020-06-11T00:45:36+00:00

Non-member spousal benefits is something that must be decided in close consultation with the K’ómoks Members. We will have more discussion on this between prior to enacting KFN laws and regulations on the matter.

Who do we leave our homes to before treaty and after?2020-06-11T00:46:22+00:00

Currently, if your home is on an Indian reserve, you can only leave that home to an ‘Indian’. After treaty, the community will have to determine which rules will apply. For example, it is possible that the community will decide that lands of former reserves can only be left to band members. It is also possible that the community may decide that lands can be left to anyone. This is an important issue that will have to be decided on prior to the vote on the Treaty.

Can anyone open a business on TSL?2020-06-11T00:46:53+00:00

The opening of businesses will be governed by our laws. It is most likely that anyone will be able to apply to the K’ómoks administration for a business licence, however that will have to be determined after community consultation.

What do they have to do to start and will the Band be the register or the business owner?2020-06-11T00:47:27+00:00

All businesses will likely have to apply for a licence from the K’ómoks administration and pay a fee, but this has not been decided. This is how local governments normally operate. The K’ómoks First Nation may own some businesses and private individuals will likely own their businesses. The details will be worked out when K’ómoks develops its own laws and has a process in place for licensing of businesses.

Is there going to be community elder housing available for our members?2020-06-11T00:48:04+00:00

This is one option that has been discussed. There are several other options that have also been suggested. These options will all have to be priced out before a decision is made. (Please refer to the individual Member benefits section of these Questions and Answers.)

How would you update the CCP in the future?2020-06-11T00:49:14+00:00

The CCP is a living document that needs to be updated from time to time. It is likely that we will go through a formal update and renewal process based on community consultations, every 5 years. Ideally, the CCP is both strong and flexible.  It sets out a course for the community but can also be adapted to new opportunities and situations.  In addition, the Plan:

  • Helps the community decide on a preferred future
  • Provides a foundation for all policies and regulations on land use and development
  • Guides economic, environmental, development, and social decision-making
  • Helps to make good use of resources by focusing on what is important to the community
  • Reinforces community values 
  • Sets priorities for people, finances, and land uses
  • Builds expertise within the community 
  • Prevents conflict among competing priorities
  • Helps the community pursue new economic development opportunities and attract investment.

Ultimately the responsibility rests with the elected government to ensure a process is in place to utilize K’ómoks Comprehensive Community Plan & K’ómoks Community Action Plan to help guide and inform the periodic renewal.

Where does education funding come from now? Also, where will it come from in the future as programs are continually cut?2020-06-11T00:50:05+00:00

Education funding currently comes from Indigenous Services Canada, and this will not change after Treaty.

For additional dollars, KFN needs to develop our own source revenues to ensure these education programs continually receive the funds needed to provide education.

How do we decide which proposals go ahead?2020-06-11T00:50:48+00:00

That is one of the things we need to figure out still. We still need to determine how this process will be handled, considering the CCP and community input. A first step will be to develop a set of guidelines or a policy framework on the approval of developments.

How is it possible to monitor and enforce? Where will we get the money?2020-06-11T00:51:25+00:00

Where the Treaty requires us to monitor or enforce specific provisions, there will be implementation funding available. However, enforcement is costly. KFN realizes this is a challenge. We know of other First Nations who have created a program for monitoring and enforcement. KFN has been meeting with those First Nations to learn about how we can enforce our laws most effectively.

Do we have a lease with DND for the Goose Spit?2020-06-11T00:52:00+00:00

The Goose Spit is broken up into four different parcels. The first is the stretch of road, which is governed by Area B of the CVRD. The second is the HMCS Quadra Cadet Base. The third piece is our Indian Reserve # 3, and the fourth is what we have been calling the “tip” of the spit, which was offered and accepted by KFN as part of the Agreement in Principle, including.

There is currently no lease with DND for the use of our reserve lands. The “tip” of the Spit comes to KFN with conditions, one of them being that KFN negotiate a lease agreement with DND to use that area for specific purposes when needed, KFN is negotiating this now. The HMCS Quadra Cadet Base is legally owned by BC and is being used by DND under and Order in Council with Canada. The Treaty, if approved, will include the transfer of the full Goose Spit to the KFN, including HMCS Quadra which includes the cadet camp.

How can we enforce without bylaws?2021-02-11T00:43:20+00:00

Enforcement of First Nations laws, including Indian Act by-laws is complex because the police do not enforce First Nations laws, and K’ómoks does not have enforcement officers or a court. K’ómoks is trying to change this and was successful in making the police enforce a K’ómoks law, enacted under the Land Code, against a tenant. But we had to go to court to do that, and it was costly.

Under treaty, as well as under the Land Code, we are trying to fix this problem to ensure that K’ómoks laws enforceable laws, once there is the equivalent of a “court order” under the K’ómoks Justice Tribunal. If we are successful, then the police can be compelled to enforce our laws.

The police are required to enforce BC and federal laws of general application on Indian Reserve lands and on Treaty Settlement Lands.

How will K’ómoks deal with drug enforcement?2021-02-22T20:27:41+00:00
  • Drug enforcement is a matter for the RCMP to deal with
  • It takes many months of gathering evidence to get a warrant
  • If they are using on site, and not storing drugs there – then its not enough to charge
  • Smaller end possession charges will not be enforced
  • The Land Code laws may possibly address the nuisance and disruption to the neighborhood
  • The plan would be to enact laws linked with peace and security or trespass, and attempt to have these matter set before the K’ómoks Justice Tribunal
  • But even if we have laws in place, and a mechanism to adjudicate the laws through the tribunal, they still need to be enforced by either the police or private security working with the police.
  • There are also questions of whether adjudication of laws before the K’ómoks Justice Tribunal will be recognized by federal and provincial governments.
  • This is work in progress, and new ground
If RCMP wouldn’t do anything about fireworks night after night or noise – why?2021-02-22T20:27:10+00:00
  • Currently there is no bylaw in place, on K’ómoks IR lands that says you cannot light fireworks off
  • In Courtenay and Comox you have to obtain a permit
  • KFN would need to have a law in place prohibiting fireworks
  • KFN is looking to develop a regulation on fireworks, nuisance, noise etc.
  • But there is still the question of enforcement. Someone will have to enforce the law, if the law has been violated, and this would have to be either the RCMP or a private security company, working with the police.
  • It is not the role of Chief and Council to enforce laws.
What changes can K’ómoks make to have the government give mandate to the RCMP to enforce Indigenous laws? Before and after the Treaty? How are the Migmaw enforcing their laws?2021-02-22T20:34:06+00:00
  • The Migmaw, like everyone else are struggling with finding mechanism to enforce their laws. They are relying on their section 35 constitutional right to fish and the inherent right make laws, but these will not be enforced by the police.
  • This is a very complex question. The province and federal governments can enforce their laws because they have courts, police and prosecutors. This all takes money.
  • K’ómoks has been taking all the right steps to try and get Canada to do its job and take on the enforcement of First Nation laws (including giving the mandate to RCMP to enforce, and crown prosecutors to prosecute). Many letters and meetings with the higher ups in Canada have taken place, but the issue remains stuck in Ottawa right now.
  • We are also trying to work under K’ómoks laws passed under the Land Code. This has been costly because our laws are not considered as “enactments” under provincial law, and enforcement agencies are only bound to enforce “enactments”.
  • We are working with Canada and British Columbia under treaty to ensure we have the right enforcement tools in place and to ensure that their laws don’t serve as a bar to enforcing our laws. Rather we are working with the to facilitate the enforcement of K’ómoks laws, once there is a treaty.
How is the Tribunal selected and what considerations are given to legal aid?2021-02-22T20:36:17+00:00
  • For the current KFN Justice Tribunal, members are selected by the Chief and Council, but in conjunction with the local Community Justice Tribunal.
  • Like any offender, someone who breaks a K’ómoks law has the right to obtain legal counsel. But the KFN will not be funding that. If legal aid is available, and the members qualify, they may be able to use that service.
Would it be different if it was a status Indian or member of K’ómoks who was convicted of an offense on K’ómoks lands?2021-02-22T20:38:30+00:00
  • Enforcement of First Nations laws is a problem everywhere; everyone is experiencing the same difficulty (whether self-governing under Treaty or under Indian Act) – everyone is running up to the same hurdle.
  • It takes enforcement institutions like the courts, prosecutors and the police.
  • Enforcement costs money and we are unable to force the police to enforce our laws, unless we go to court, as we did in Thordarson.
  • We need to have the right tools. Under the Indian Act, there are almost no tools, and Land Code tools are not perfect.
  • We are working hard on this issue in the treaty process.
If someone rents out their home and they get a bad tenant, would this this be easier to enforce the next time? (similar situation as Thordarson)2021-02-22T20:40:20+00:00
  • Thordarson has set a precedent in common law for every Indian Band under the Land Code – The law is now on our side and we will be successful.
  • It will still likely take the same amount of time and effort to get a resolution, but we know we will be successful.
I don’t understand, we as an Indigenous people are put on reserve. Canada should provide for the costs associated.2021-02-22T20:42:25+00:00
  • Yes, it has all been set up and easy for them to set up the system but have not given us the ability to enforce the laws. This is a big cost.
How were the costs covered for the Thordarson court case?2021-02-22T20:46:54+00:00
  • The cost accrued through this case was about $170,000. The First Nations Lands Management resources covered much of that cost.
  • The K’ómoks Administration have had conversations with Lands Management, they will assist in further court case costs if necessary.
How will enforcement be respected? It seems through Land Code KFN is already having difficulty establishing enforcement and that outside governments are not respecting or understanding. How will this be different with treaty?2021-02-22T20:49:46+00:00
  • This is a problem that almost all First Nations have. Tsawwassen has resolved the issues for the most part as they have their own police force, but it is costly.
  • It is easier under Land Code than under the Indian Act. It should be better under Treaty, but its not easy. Government bureaucrat respect treaty enforcement needs. It is a lack of understanding of how it works on Treaty Settlement Lands that makes it difficult;
  • First Nation representatives have spent a lot of time with RCMP explaining how Treaty works. We have made significant progress, and there seems to be a willingness on the part of the provincial government to amend their laws to make sure that First Nations laws can be enforced through the provincial court system.
What funds are being accessed by the Treaty Nations to negotiate amendments to the different acts; this must come at a cost?2021-02-22T20:56:46+00:00
  • K’ómoks has been provided Treaty Related Measures funding to explore what laws need to be in place under treaty and how to make enforcement work.
  • Also, the BC Treaty Commission is aware of how complex the issues are and have provided funding to K’ómoks for this purpose.
How are enforcement costs covered under a Treaty? How is it covered? How do we resource enforcement?2021-02-22T20:58:05+00:00
  • Funds will be provided under the Fiscal Finance Agreements (FFA) for enforcement, but you will probably need to enter into enforcement agreements with enforcement agencies.
  • For the Maa-Nulth, the agreements that have been entered into, they all address costing and are based on a fee for service – but if the officers are doing patrols, then there is no cost. If they have been asked to go out by a nation (e.g. Maa-Nulth) – then the cost is split 50-50. If the external agencies are asked to do something outside of the ordinary, it would be 100% the Nations costs.
  • But K’ómoks will need an enforcement agreement with the RCMP, and part of the TRM project is to reach agreement with the RCMP.
Is the enforcement law under Treaty going to be the same as enforcement under the Land Code?2021-02-22T20:59:16+00:00
  • K’ómoks is in a good position as we have learned under the Land Code and are now learning from other First Nations who are under Treaty.
  • We know what the problems are, and what the shortcomingas are under the Land Code and what other First Nations are experiencing under Treaty.
  • We are now taking the lead on this to negotiate better arrangements around enforcement for future Treaty Nations.
  • The intention is trying to have something that can make the transition to Treaty more workable. All the work we are doing right now, will help the transition to self government.
What does the police report look like that is provided to K’ómoks and what kind of information is shared?2021-02-22T21:01:09+00:00
  • There are no names addressees or numbers – Police are governed by personal privacy laws that govern what we can and cannot put in the reports.
  • The information includes, the area of crime, successful processions, provincial stats: speeding tickets.
Does KFN have an enforcement agreement with the RCMP?2021-02-22T21:02:47+00:00
  • No, we do not.
  • In the past, KFN has been trying to get a tri-partite agreement and KFN has been working with the Department of Justice to get them to pass that direction to the RCMP.
  • Part of our Treaty Related Measure work is to attempt to reach agreement with the RCMP on enforcement.

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