Treaty Frequently Asked Questions2021-05-20T19:21:18+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.

How long before tax goes into effect after final treaty?2021-06-14T23:11:05+00:00

Tax Exemption

The Crown seeks to eliminate tax exemption (after an 8–12-year phase out period beginning on Effective Date) in exchange for increased taxation powers.

After discussions with the community, K’ómoks has proposed:

  • KFN would have same tax powers as above (Income tax, Sales Tax and Property Tax)
  • All status Indian members keep their tax exemption unless Indian Act changes
  • Because Treaty Settlement Lands (TSL) are not Indian Reserves, the tax exemption cannot be used on TSL after a phase out period
  • There would be a 50-year phase out period on former Indian Reserves, but status Indian members could still use their exemption on other reserves

 

The Tax Chapter is still under negotiation, but Canada does not appear to be supporting our recent proposal on the tax exemption and has said it has little flexibility.

For taxes being collected after treaty by KFN, how is that enforced if people do not pay? Is it determined by us, and will it be supported by government?2021-05-20T19:18:39+00:00

The K’ómoks First Nation will enforce the property tax laws. Other tax laws will be enforced through agreements with Canada and British Columbia. Canada and British Columbia will collect the income tax and sales tax for us, and transfer it to us, after we pass a law authorizing them to do so. They will be the collection and enforcement agents for us.

So, we will be triple taxed?2021-05-20T19:17:57+00:00

No, we will not be triple taxed. The tax regimes will be harmonized. When we tax, other government will not apply the same tax.

Why, if it is no longer K’ómoks land after treaty, are there taxes?2021-05-20T19:17:45+00:00

First of all, it is not K’ómoks land right now. It belongs to Canada and we are allowed to use it, as set out in the Indian Act. After treaty, we will own the land. Most of the Lands will not be taxable, as they will remain with the K’ómoks First Nation. Those lands that become owned by individuals will be taxed because they will own them.

So, with treaty, two things will change the taxability of K’ómoks members:

  • There would no longer be “Indian Reserves”. The land becomes Treaty Settlement Land (TSL), which we own.
  • The Taxation chapter says that Section 87 (the section about tax exemption) of the Indian Act will not apply to a K’ómoks member.

Therefore, once the treaty phase-in period is over, K’ómoks members will be subject to tax regardless of where they live. For the most part, the taxes paid by members will be collected by or transferred to the K’ómoks government.

So removal of Reserve Lands means we are no longer tax exempt. Isn’t this in the best interest of the Canadian Government? Weren’t Residential Schools also? (until ’96)2021-05-20T19:06:54+00:00

Removal of “Reserve Lands”, or the transfer of the Indian Reserves from Canada to K’ómoks as Treaty Settlement Lands means we will own the lands, and not Canada. It is in our best interests.

Residential schools were provided for and allowed under the Indian Act, and the Indian Act will no longer apply to us. Because we will be under our own laws, we will not allow residential schools to happen. The residential school system happened because of the Indian Act.

We need an economic model. Do we have one?2021-04-15T19:57:58+00:00

The K’ómoks Administration and the Treaty team have heard this important issue and are developing a strategic plan for economic development. This plan is funded through TRM’s for the 2013-2015 fiscal years. It is to be developed with community consultation. There has already been some consultation on this matter through the Comprehensive Community Plan.

Who is going to be accountable for our money and funding? Are we ready?2021-04-15T19:55:47+00:00

Currently, our KFN Administration is accountable for our money and receives and accounts for the funding from Indian Affairs. You will know this if you have attended the annual band meetings. This will not change. But post-treaty our KFN Government will be made more accountable under our Constitution. We are putting laws and policies in place to ensure accountability and transparent financial management of all KFN money and funding.

Some of the accountability mechanisms will be built into a Financial Management Act. In preparation for this, the K’ómoks First Nation has enacted a Financial Management Law which puts in place mechanisms for greater accountability.

Are Joint Ventures really Economic Development?2019-11-14T23:50:51+00:00

Joint Ventures are usually for Economic Development purposes. Through our Joint Ventures we receive a share of profits, gain employment and participate in the management of the venture. So, we receive the benefits of economic development, and avoid risk and requirements of capital investment by creating joint ventures.

Investment vs. employment?2021-04-15T19:54:47+00:00

Employment of KFN members is a high priority for the K’ómoks government. Investment in such things as education, job training and Ec. Dev. opportunities will provide employment for KFN members (like J.V’s). As a result of the John Hart Impact Benefit Agreement, we have set up a small trust account for education and training, and our JV partners are required to hire K’ómoks members. As part of treaty, we will add to the trust account. This will be for members living on and K’ómoks Lands so they can have training opportunities that are not covered by other sources of funds.

How do we manage our finances? How do we ensure the people are properly trained if they are not schooled?2021-04-15T19:51:46+00:00

We do and will continue to manage our finances in a manner that conforms to financial management standards applicable to public governments. This has been explained at the annual band meeting.

Individual members are provided with opportunities for education and training, but the ultimate responsibility is with the members themselves. The K’ómoks government can provide opportunities but it is up to each individual member to take advantage of the opportunities and use their own initiative.

If we cannot sustain the small businesses that were started in the past (i.e.: Log Houses/Cabins), how do we expect to support ourselves once we give our rights away?2021-04-15T19:50:57+00:00

The treaty does not give away rights. The treaty clarifies rights and ensures they have constitutional protection. It also provides a much broader from of self-government. Our small businesses are doing well. The Art Gallery, the RV Camp, the forestry operations and Pentlatch are all successful ventures. Our Joint Ventures with Uplands and Domcor are also successful.

The treaty will provide us with more resources and more opportunities. All of the additional lands and resources will provide additional economic opportunities.

How will we pay for health and education?2019-11-14T23:53:33+00:00

Health, Education and Social Assistance will continue to be funded in the post-treaty environment. These are universal social programs that we have a right to have. They will apply in the post-treaty environment. Other programs, those that are strictly under Indian Affairs, will be applicable as long as they continue to exist. If Indian Affairs begins to cut back on these programs, all First Nations will be affected.

What does happen if we cannot bring in a profit from our businesses. Will this affect our programs?2021-04-15T19:49:21+00:00

We are not required to bring in a profit from our businesses to support the delivery of programs and services. If our businesses do not make a profit, the programs and services will continue. That is what happens now, and this will not change.

Every member, as a resident of the province and a citizen of Canada, has a right to receive universal social programs (Education, Health and Social Assistance). These will always be there, as long as these programs exist.

Banks do not seem to understand Treaty and it sounds like it is harder to get a mortgage. What can we do to address this?2021-04-15T19:48:19+00:00

One thing that is clear is that Banks do not like investing and providing mortgages on Indian Reserves. This will change with a treaty.

The treaty provides us with the tools required to participate in the financial mainstream. Banks may not understand treaty, but they understand and can work with the tools that a treaty gives us. For example, banks understand what fee simple lands are. They need to be shown that the treaty gives us fee simple lands. Banks understand the certainty of tax revenues. They need to understand that treaties give us tax revenues. So, like us, banks will need to be made aware of the financial tools that a treaty gives us.

Has our CCP team approached the idea of leasing our land for development to any companies?2021-04-15T19:47:17+00:00

K’ómoks has been approached to lease lands for economic development opportunities. Chief and Council will do what is best for K’ómoks. We do need to develop an economic development plan, based on the CCP, and to ensure there is community input into the plan.

Who says where the revenue goes for the companies under Ec. Dev.?2021-04-15T19:46:21+00:00

Each of our companies is a separate legal entity, with its own Board of Directors and operates at “arm’s length” from the K’ómoks government. The profits from these companies, if any, go into a trust account for the K’ómoks First Nation. The terms of reference of the Trust set out what the money is to be used for, and the trustees need to ensure the monies are spent in accordance with the Trust Agreement. This will not change.

Re: the voting process- Does it go by: Yes = yes No= no?2021-06-14T23:05:39+00:00

Yes. This decision will be made through community consultation during the Constitution Development process. However, if we get a “NO” vote from a majority of voters, there will be no treaty. If we get a “YES” vote from a majority of voters, there will be a treaty.

People who don’t vote wont have their vote counted either way.

What can we do to ensure that our treaty government will be held accountable?2021-06-14T23:05:26+00:00

Accountability requires the participation of members. Members have an obligation to inform themselves and to question their government. In the draft Constitution being developed there will be requirements for laws and policies in place to ensure the K’ómoks Government is held accountable, but this will only happen if you exercise your rights as citizens.

What laws can we put in place to guarantee future generations that money will not be misused. Has KFN committed to protecting the Capital Transfer?2021-06-14T23:05:17+00:00

In preparation for treaty and in order to manage our finances more like public governments, a Financial Management Act has been put in place, and through the Constitution the government is held accountable. In addition, the Capital Transfer amount is intended to go into a trust account, as are profits from K’ómoks corporations.

I want financial transparency. How can treaty guarantee this?2021-06-14T23:05:02+00:00

The treaty is a tool. It creates obligations and opportunities. It also protects rights, but there are no guarantees. Through the Financial Management Act, the Constitution, Integrity and Conflict of Interest Act and annual audits, there will be sufficient tools to provide for financial transparency. But you will also need to exercise your obligations and duties as members to hold your government accountable.

What stops our “newfound” government with ultimate power from becoming corrupt?2021-06-14T23:04:49+00:00

The best tool to prevent governments from being corrupt is to have informed and active citizens. Apathy invites abuse of power.

The treaty will also provide tools of good government. There will also be laws and policies in place to prevent this from happening. There will be an impartial and independent process for K’ómoks citizens and other individuals who live within K’ómoks lands to appeal or ask for a review of K’ómoks government decisions. Currently, under the Indian Act, there is no formal process to review or challenge decisions made by the K’ómoks Chief and Council, other than in the courts.

Will there be laws and policies in place?2021-06-14T23:04:35+00:00

There will be laws and policies in place, yes. These will be developed by K’ómoks and for K’ómoks.

Is the post-treaty government run by elected representatives?2021-06-14T23:04:16+00:00

Yes. The structure of treaty government will be developed based on the Constitution that K’ómoks members build. After treaty, the band will no longer exist. There will be a transition period during which the Chief and Council will form the government. After the transition period, the new government will be elected based on the Constitution.

Do we know of a government run by Heads of Families? Is there a comparable success rate? What are the pros and cons of each?2021-06-14T23:04:02+00:00

Ka:’yu:’k’t’h’/Chek’tles7et’h’ First Nation example. They have a nine member legislation: five elected, with four Hereditary Chiefs put in to legislation by Hereditary leaders of the Nation. They are three years in and still learning.

We have had this conversation at numerous community meetings and the Constitution that is being developed is not a government of Heads of Families. A government run by Heads of Families has not been supported by a majority of K’ómoks members. It will be one of elected representatives as set out in the draft Constitution.

We need a broader explanation of “fee simple” land.2021-04-15T19:36:10+00:00

Fee simple lands means lands that are fully owned by the K’ómoks First Nation and K’ómoks members. That full ownership comes from a grant of land from government. Indian reserves are not owned by Indians but by the Crown. We are allowed to live on Indian Reserves, but do not own them, therefore we cannot use them as we choose. We can only use Indian Reserves as we are allowed to under the Indian Act.

But with Fee Simple lands, we can do whatever we want, as long as we don’t break the law.

What is section 91.24 of the Constitution?2021-04-15T19:35:13+00:00

Section 91.24 of the Constitution of Canada gave the Federal Government jurisdiction over the Indians and lands reserved for Indians.

Do we lose our status and healthcare if we sign a treaty? If not, what happens with health?2021-04-15T19:34:15+00:00

We will continue to be eligible for all programs and services (including health, social services and education) available to Aboriginal people and we will continue to be Status Indians. KFN has the opportunity to enhance health and education by developing programs for these important services.

Where in this process is the Elder’s Payout? We have Elders that are not well, we should not leave this too long.2021-04-15T19:33:12+00:00

K’ómoks has developed a draft individual benefits package. One of the suggestions was for an elders payout, but this was not the first priority. We will continue to review the benefits package with members, and determine the “affordability” of the proposal. The individual benefits package will not be made available until after the “Effective Date” of the treaty.

Can we actually “go back” to the Indian Act if we fail as a treaty nation? If we fail and are forced back into the Indian Act and lose everything, what happens to us? Who will help us? Do we retain any land or rights if we revert? Do we go to the International Monetary Fund for a bailout? What if we go bankrupt?2021-04-15T19:32:18+00:00

This is an extremely hypothetical question, based on a worst-case scenario. The treaty does not contemplate failure, and it does not contemplate returning to the Indian Act. A failure of this magnitude would be something that governments and financial institutions would want to avoid. Any remedies for such a situation would depend on the specific circumstances at that time. The International Monetary Fund is not applicable to First Nations, but there will likely be other remedies available if this happens.

There is currently no fund to “bail out” Indian Bands if they go bankrupt.

How far are we into the treaty process?2021-04-15T19:29:56+00:00

In March of 2012 the AIP was approved and KFN is currently negotiating a Final Agreement. We are probably about two years away from completing our negotiations. Negotiations are stalled because Canada has no mandate to negotiate Fish, Fiscal and Migratory Birds at this point.

Is there any money for our members?2021-04-15T19:26:26+00:00

An individual Treaty Benefits Package is being contemplated. This will have to be finalized and will depend on the fiscal health of the K’ómoks First Nation.

How can we establish pride in our culture(s) for our youth? It would make them proud of who they are, where they come from and want to help make a change and stay here.2021-04-15T19:25:29+00:00

This is a good question, and it is something that only the K’ómoks people can answer. To some extent we discussed this in the Comprehensive Community Plan, you might want to look at the provisions that deal with culture. We are trying to revive the culture through the dancers as well as hunter programs. There are programs for our youth like the Junior Hunters Program, and others that embrace our cultures. It would also be beneficial to get youth and elders together and ask for guidance on this issue.

Are there other options for self-government besides treaty?2021-04-15T19:24:33+00:00

There are no real options for self-government other than treaty, in British Columbia. There are some small measures we can take under various pieces of legislation, including the Land Management Act, the First Nations Financial Management Act. We can also develop our own Membership Code and Election Code under the Indian Act. But these are all half measures, and the only way to be truly self-governing is through treaty negotiations and economic development.

Why is it costing so much money just to get a treaty?2021-04-15T19:01:45+00:00

Treaty is an important decision for the K’ómoks First Nation. We need good, sound advice, tough negotiators and good political resolve. Canada also needs to be held accountable. They have delayed unnecessarily and this has cost us more money.

But much of the funding has gone into developing useful tools for the K’ómoks. The Comprehensive Community Plan, the Land Use Plan and the Human Resource and Capacity Building Strategies have all come from funds negotiated by the treaty team.

Define what our Aboriginal Rights and title are now, and what it will mean after treaty.2021-04-15T19:00:04+00:00

Aboriginal Rights are essentially the right to hunt, fish, trap and gather for food, social and ceremonial purposes. Aboriginal title is ownership of lands we can show we have occupied “exclusively” for a very long time. Exclusive ownership is difficult to prove, particularly because of overlaps. These rights become expanded under treaty. For example, to date, no court has made a declaration of Aboriginal title and no court has made a comprehensive declaration of Self-government. Under treaty, we get full ownership of the Treaty Settlement Lands and Self-government.

What IS bad about our system now?2021-04-15T18:58:02+00:00

To start with, it was under the current system that the residential schools were allowed to happen. This all happened under the Indian Act and under the “protection” of the Minister of Indian Affairs. The potlatch system was also banned under the Indian Act.

Also, we do not own our lands. We are “allowed” to live on Indian Reserves, as long as Canada will allow, in the way Canada requires. We do not make our own laws, and are always subject to the whim of the Minister of Indian Affairs. For example, the entire residential school process was because of the Indian Act.

And because we do not own our lands, economic development is difficult. Most Indian Reserves become islands of poverty and abuse, surrounded by an ocean of wealth. We need to change this.

But some people like the way things are, because they are used to it.

If the government(s) have not embraced and honoured treaty for other nations who currently have treaty in place, then why does the K’ómoks Band think that we will fare any better?2019-11-15T00:09:16+00:00

All three governments have a vested interest in ensuring the success of KFN’s treaty, therefore, the treaty commitment needs to be clear, fair and implemented within the spirit and interest of treaty. There will also be a 15 year review period and a dispute resolution chapter.

If governments do not honour the treaties, the treaties provide the legal remedies.

Yes the Indian Act sucks… Can’t we just tweak it instead of starting over?2021-04-15T18:53:58+00:00

There have been many efforts at finding support amongst First Nations to amend the Indian Act, with strong pushback from Canada. It is an antiquated federal Act which demands a whole new approach to self-government rather than trying to amend it.

It is like trying to tweak a crumbling house. If the foundation and the walls are failing, it is better to tear it down and rebuild, on a new foundation.

Regarding post-treaty and loans; what will be used for collateral for applying for loans?2021-04-15T18:52:31+00:00

K’ómoks members may be able to use their own property (land) as collateral for loans, in addition to any security the K’ómoks government may provide.

Post-treaty how can K’ómoks make revenue? eg. taxes, economic development? C.P’s. Do we tax properties?2021-06-14T23:13:37+00:00
For economic opportunities, K’ómoks will have a large volume of land it can develop, and it can use revenues from land development opportunities for further economic develop. K’ómoks will also have a large forestry license.

In addition, there are opportunities form revenue created through tax powers and revenues form our Joint Venture partners.

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?2021-04-15T18:34:17+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 BC Treaty Process.

Once the treaty comes into effect, will there be a cash payout to all K’ómoks members?2021-05-20T16:21:35+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 before the effective date of the treaty.

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 the expression of self-government; the 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?2021-04-15T18:31:00+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’ómoks 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’ómoks 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?2021-05-20T17:53:54+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.

Why does KFN lands and money offer seem to be so small, even in comparison to Nations of a similar size?2021-04-15T18:25:40+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. 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’ómoks 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.2021-06-14T23:15:31+00:00

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.

We are currently in negotiations with a group First Nations in Stage 5 of the BC Treaty Process and the Department of Finance to maintain the existing tax exemption.

The Crown seeks to eliminate tax exemption (after an 8–12-year phase out period) in exchange for increased taxation powers.

After discussions with the community, K’ómoks has proposed:

  • KFN would have same tax powers as above (Income tax, Sales Tax and Property Tax)
  • All status Indian members keep their tax exemption unless Indian Act changes
  • Because Treaty Settlement Lands (TSL) are not Indian Reserves, the tax exemption cannot be used on TSL after a phase out period
  • There would be a 50-year phase out period on former Indian Reserves, but status Indian members could still use their exemption on other reserves

The Tax Chapter is still under negotiation, but Canada does not appear to be supporting our recent proposal on the tax exemption and has said it has little flexibility.

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 a 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.2021-04-15T18:21:55+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 programs and services that Indians are entitled to under the Indian Act and the universal social programs other Canadians are entitled to.

A treaty is also intended to provide sufficient funds to for K’ómoks government operations. In that regard, we have done well. Currently the band receives about $207,000 for band governance, which is separate and in addition to the monies the band receives for programs and services delivery. What is currently referred to as band governance funding will increase from the $207,000 amount to just over $2 million annually. That will allow the K’ómoks government to pay its employees the same as provincial employees receive for their services. This is of course in addition to the program and services delivery funding that K’ómoks will continue to receive 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’ómoks 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’ómoks 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.2021-04-15T18:18:22+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’ómoks wishes to continue with its small land base under the Indian Act where the Minister is in control of every aspect of K’ómoks activities, or whether K’ómoks 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’ómoks 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’ómoks treaty will include a mechanism to ensure that the K’ómoks government is held accountable for its actions.

Does the Treaty affect K’ómoks people off-reserve? How?2021-04-15T18:15:51+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 programs 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?2021-04-15T18:12:17+00:00

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

Under the treaty, how will K’ómoks be governed?2021-04-15T18:10:46+00:00

The K’ómoks Government will be governed according to general principles of good government with appropriate checks and balances between the different branches of government. Section 3 of the KFN Constitution sets up the government structure which consists of three bodies: The Executive, the Legislative and the Judicial.

The K’ómoks Legislature has the vested power to create, review, and pass laws.

The K’ómoks Executive is made up of an elected Chief, and some members of the Legislature (also referred to as Councillors). In addition to the primary function of approving policy, they perform day-to-day political functions such as government relations, maintaining effective communications with Members, protecting the K’ómoks First Nation economy, and ensuring the sound management of the Nation.

The Judiciary provides an opportunity to challenge the decisions of government or to challenge K’ómoks laws and resolve disputes between Members and the K’ómoks government.

What is the status of our Constitution? When is it ready for review? When do we get to vote on it? When will it go into effect?2021-05-20T17:56:44+00:00

The Constitution is currently being reviewed in detail in preparation for a ratification vote. The timing of this will depend on when K’omoks receives a Land and Cash Offer from Canada and BC.

Communications materials will be made available to K’ómoks Members to thoroughly explain the Constitution in advance of the vote on the Constitution.

The Constitution will come into effect when the treaty comes into effect.

Why will non-native residents on TSL have a voice in the decisions of the K’ómoks government? How are we going to deal with that?2020-06-11T00:17:42+00:00

Non-native residents living on TSL are subject to K’ómoks law and as such it is important that they are heard when it comes to issues that may affect them significantly or directly. For example, within the Westbank First Nation there is a group of individuals who represent the non-member residents who meet regularly with the Westbank Government to discuss those types of decisions and other issues. How these non-member residents are heard is the subject of KFN consideration at this time and will be in accordance with K’ómoks law.

What can we do differently when K’ómoks reserve lands become Treaty Settlement Lands (TSL)? What can we do now with our reserve lands?2021-04-15T18:07:18+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 is 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 lands, 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 residents 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?2021-04-15T18:04:09+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 lands at our K’ómoks IR#1 on the K’ómoks Estuary should only be owned by KFN Members. This is something the K’ómoks First Nation will eventually decide on 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?2021-04-15T18:02:20+00:00

For the most part, the Treaty will create opportunities for members, but it is not a social program. At the same time, the Treaty will have several sources of revenue. 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.

Are we getting the Spit back?2021-05-20T17:57:40+00:00

The majority of the Goose Spit will belong to K’ómoks the Treaty is approved by KFN Members; this includes the portion known as HMCS Quadra which is currently used as a cadet camp in the summer.

What rights are being negotiated?2021-04-15T17:58:36+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 A-Tlegay 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?2021-04-15T17:57:37+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 A-Tlegay. 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?2021-04-15T17:56:10+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 area 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 there 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?2021-04-15T17:54:51+00:00

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

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?2021-04-15T17:52:10+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.

Do we not have a right to access fresh water right now?2021-04-15T17:50:45+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 IR#2.

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

Puntledge River – 1,408 cubic decametres; Trent River 3,362 cubic decametres; 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 one of a 2-year groundwater study to support negotiations of groundwater reservations for each of our TSL parcels. In 2020, KFN drilled two 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.

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?2021-04-15T17:47:30+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
Who will benefit from our taxes?2021-05-20T19:05:07+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?2021-06-14T23:06:43+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?2021-04-15T17:24:53+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?2021-04-15T17:24:00+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 license, 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?2021-04-15T17:16:19+00:00

All businesses will likely have to apply for a license 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?2021-04-14T23:55:49+00:00

The Comprehensive Community Plan (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 five 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 use the K’ómoks Comprehensive Community Plan and the 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?2021-04-14T23:52:35+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 of 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?2021-04-14T23:50:30+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.

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 an 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.

What is a Constitution?2020-06-11T21:12:45+00:00

A Constitution is the fundamental law of the nation by which the people agree to be governed. The K’ómoks Constitution outlines the Rights and Freedoms of K’ómoks Members, the roles and responsibilities of the K’ómoks Government and the relationship between the K’ómoks Government and the membership.

Why do we need a Constitution?2021-04-14T23:46:25+00:00

A Constitution is important because it is an essential element in achieving self-government. It serves as the basis for good government.

After Treaty, the Indian Act will no longer apply to K’ómoks, though members will keep their Indian status and continue to be eligible for Indian Affairs programs and services. A governance structure with law-making authority will be required to replace the Indian Act structure and to implement self-government under the Treaty. A Constitution will describe these structures and processes.

Under the Treaty, how will K’ómoks be governed?2020-06-11T21:13:23+00:00

K’ómoks will be governed as determined by the K’ómoks people, according to a structure designed by K’ómoks, and under K’ómoks Laws. The K’ómoks Government will consist of three bodies: The Executive, the Legislature and the Judiciary.

What is the difference between the Legislature and the Executive?2021-04-14T23:45:01+00:00

The K’ómoks Legislature has the vested power to create, review, and pass laws. It consists of anywhere from seven to 11 representatives elected by the K’ómoks membership, every three years. Its primary role is to make laws and approve the annual budget.

The K’ómoks Executive is made up of an elected Chief Councillor and additional members, who come from the elected representatives of the Legislature. The primary role of the Executive is approving policy and the overall political direction of K’ómoks. They perform day-to-day political functions, such as government relations, maintaining effective communications with members, protecting the K’ómoks First Nation economy, and ensuring the sound management of the Nation.

Who will be the first members of K’ómoks government?2021-04-15T17:32:35+00:00

The Chief Councillor and Councillors at the time of ratification of the Treaty will be the K’ómoks Government. They will serve as a transition government until the first elections are held. Elections must be called no later than six months and held within the first year after the Effective Date of the Treaty.

Under the Treaty, can K’ómoks government decisions be appealed or reviewed?2020-06-11T21:14:36+00:00

Yes. There will be an impartial and independent process for K’ómoks Members and other individuals who live within K’ómoks Lands to appeal or ask for a review of K’ómoks decisions. Currently, under the Indian Act, there is no formal process to review or challenge decisions made by the K’ómoks Chief and Council, other than in the courts. This will be the primary function of the Judiciary.

How will the Judiciary be appointed?2020-06-11T21:14:58+00:00

That has not been determined. On the Effective Date, the Legislature will have to pass a law to determine how the representatives of the judiciary are appointed.

When do we get to vote on the Constitution?2020-06-11T21:15:30+00:00

Chief and Council had planned for a vote on the K’ómoks Constitution before the end of, March 2021. However, the pandemic of Covid-19 will likely an impact on that target date.

When will it go into effect?2020-06-11T21:15:51+00:00

The K’ómoks Constitution will come into effect of the Effective Date of the Treaty.

Who can vote on the Constitution?2021-04-15T17:33:59+00:00

All those eligible to be a K’ómoks Member, and of voting age (18+) can vote on the Constitution. This includes members who are currently on the Indian Band list and individuals who meet the Eligibility Criteria in the Treaty.

How does the Constitution become law? A meeting in the hall or do we have to go to a court of law?2020-06-11T21:17:03+00:00

Your Constitution will become law on the Effective Date of the Treaty, after both the Treaty and the Constitution are approved in a ratification vote. There will be a good deal of consultation with K’ómoks members before this happens.

What connection will exist between the K’ómoks government and residents of K’ómoks Lands who are not K’ómoks citizens?2021-04-14T23:37:07+00:00

Before the Treaty and the Constitution comes into effect, K’ómoks will negotiate procedures on how the K’ómoks government will consult with these individuals about any decision that directly and significantly affects them.

K’ómoks laws will apply to all members and non-members attending K’ómoks Institutions on K’ómoks Lands. Non-member residents will be subject to K’ómoks tax laws. Non-members will be provided an opportunity to participate in certain governmental decisions that directly and significantly affect them. This needs to be addressed in detail in K’ómoks laws.

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)?2021-04-14T23:32:05+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 Periodic Renewal thing kick in?2021-04-14T23:29:10+00:00

In 2017, a group of Treaty Nations, 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 gets in their treaty that we want.

Is the 10-year time frame negotiable? It seems like a long time to have to wait to deal with something like fisheries.2021-04-14T23:26:01+00:00

At this time, the 10 years is agreed to by BC and Canada in the K’ómoks Treaty. The originally 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?2021-04-14T23:35:16+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
How is a Core Treaty different from what we have been talking about for 10 years?2021-04-14T23:24:00+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 we are 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.

What is the benefit of being a part of A-Tlegay if we have a Treaty?2021-04-14T23:34:32+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 A-Tlegay, 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 five A-Tlegay First Nations will increase our chances of success against the DFO. There is power in numbers.

A-Tlegay also makes commercial fishing licenses 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?2021-04-14T23:33:52+00:00

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

In our fish negotiations, we have proposed that:

  • The K’ómoks aboriginal right remain unaffected by the treaty
  • We negotiate a commercial component in conjunction with the five A-Tlegay 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?2021-04-14T23:33:22+00:00

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

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

Will we get a fair deal from being a part of A-Tlegay?2021-04-14T23:32:39+00:00

Under the A-Tlegay sharing arrangement, we are entitled to 18% of the assets.

What is the timeline for voting?2021-04-14T23:14:08+00:00

Right now (December 2020), the expectation is that K’ómoks will receive a Land and Cash offer in Summer/Fall of 2021. Based on that target, K’ómoks would vote first on the K’ómoks Constitution in Spring of 2022 and vote on a Treaty in Fall 2022. Covid-19 and elections all effect the timing of our treaty vote.

In the Constitution, where are the checks and balances? I feel uneasy about the possibility of the Executive outweighing the Legislature. How can we address that?2021-04-14T23:13:29+00:00

The KFN Constitution has been years in the making, and there have been numerous opportunities to participate. There are built-in checks and balances in the KFN Constitution because, unlike in the Indian Act where all power is vested in the Chief and Council, under the KFN Constitution you have power divided between the Executive Branch, the Legislature, and a Justice Tribunal; as well as the K’ómoks People’s Assembly.

The question about the size of the Executive compared to the Legislature is fair. You can address this by fully participating in the Constitutional forums that have taken place and that will take place by Zoom, as well as through public participation once there has been a vaccine. But you must participate to be heard.

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.

How will K’ómoks deal with drug enforcement?2021-04-14T23:11:39+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 it’s 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 matters 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?2021-04-14T23:10:26+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?2021-04-14T23:09:31+00:00
  • The Migmaw, like everyone else, are struggling with finding mechanisms 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?2021-04-14T23:03:16+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)2021-04-14T23:00:11+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?2021-04-14T21:09:11+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 it’s not easy. Government bureaucrats 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?2021-04-14T21:06:23+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.
  • The BC Treaty Commission is aware of how complex the issues are and has 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?2021-04-14T21:05:25+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 Nation’s 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?2021-04-14T21:04:13+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 shortcomings 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.
We were so close to finalizing a treaty as I understand, so why turn to a core treaty now?2021-05-20T17:52:41+00:00

In discussions with other First Nations, we had been hearing about Core Treaties and thought it would be worth exploring what a Core Treaty might look like.

Yes, we were close to finalizing a treaty and have made significant progress on some issues including:

  • Loan forgiveness
  • Negotiations on the costs of government activities
  • Transfer of the Goose Spit
  • Removal of Extinguishment
  • Preservation of the Duty to Consult
  • Recognition of Rights
  • Periodic Renewal

However, there are still many unresolved issues. For example, we still do not have the final land and cash offer from BC and Canada, nor do we have anything close to an acceptable fish offer. We have also not secured the timber volume we have been seeking. And, we had also proposed a co-management arrangement for the entire traditional territory and have not yet received a substantive response from BC and Canada.

So while most of the chapter work is complete, and we have done well on most of our “Winning Conditions” there are still outstanding issues related to the treaty assets because the Crown has failed to come forward on some very important elements.

In addition, there are several new areas that we have been waiting to see evolve. For example, BC is supposed to introduce legislation linked with the UN Declaration on Rights of Indigenous Peoples (UNDRIP), and BC, Canada and the First Nations Summit have negotiated a new treaty policy (Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia) and we need to see how this evolves in order to determine if there is something in these new developments that we can take advantage of.  While the K’omoks negotiating team has done well in anticipating what changes these new policies might bring, and we have advanced language related to Recognition of Rights, Periodic Renewal, Self-Government/Determination and Co-management, we need to allow the new emerging policy framework time to unfold.

What is Eton road?2021-05-20T18:00:23+00:00

Eton Road is a parcel of land located in the Town of Comox off of Pritchard Road, near Highland Secondary School. This parcel has been offered to K’ómoks as an Incremental Treaty Agreement (ITA) piece to give K’ómoks the opportunity to develop before Treaty.

As part of the ITA the parcel will stay under the jurisdiction of the Town of Comox and K’ómoks will own it privately. This parcel will not become Treaty Settlement Lands (TSL).

The Eton Road parcel backs onto the North East Woods (behind Highland School), which have been negotiated to be included as TSL.

When will the lands be turned over (to K’ómoks)?2021-05-20T18:01:47+00:00

The lands will come to K’ómoks in two phases; the majority of the lands will be transferred to K’ómoks on the Effective Date (the day we become self-governing under the Treaty). A small portion of lands will be transferred at a later date, as negotiated.

Would the possible residential areas be for K’ómoks members only or would they go to non-members who want to build?2021-05-20T18:02:42+00:00

This is a decision that will be agreed on by the K’ómoks people through a zoning exercise. K’ómoks may choose to keep certain lands (such as IR#1) as “K’ómoks Homelands” in which only K’ómoks Members would be able to own land. Other lands will be for K’ómoks economic development and will have homes and lots for non-members to purchase.

Will K’ómoks members receive an opportunity to purchase treaty land within the treaty proposal first?2021-05-20T18:03:33+00:00

This should be discussed among the nation to decide before the Effective Date.

Are there conflicting claims to treaty lands, specifically in shared territories with Campbell River Bands who are going thru treaty?2021-05-20T18:04:28+00:00

Yes. K’ómoks shares our territory with 17 other nations from all directions. K’ómoks has the opportunity to negotiate shared-area agreements with nations who would like to participate, however it is not mandatory. K’ómoks currently has shared-area agreements with 3 other First Nations.

K’ómoks will continue to share these areas with our neighbouring nations after Treaty and will consult with them when necessary. Shared areas also create opportunity for neighbouring nations to work together into the future.

Why are there no parcels on Denman?2021-05-20T18:05:21+00:00

There is one small parcel on Denman Island called Gravelly Bay located at the ferry terminal from Denman to Hornby Island. This is the only TSL parcel on Denman Island due to a lack of Crown Lands for negotiations. However, if the lands become available and are acquired by K’ómoks they can be added to TSL by agreement of the three parties to the Treaty.

K’ómoks members access “crown land” in recognition of our traditional territory. Would treaty give the government more power to restrict our use of our traditional territory?2021-05-20T18:06:14+00:00

No, K’ómoks will not give the governments more power to restrict the use of our territory. The Treaty recognizes and affirms K’ómoks’ Indigenous Rights and Title to our territory. K’ómoks Members will practice our rights and access our territory as always, and this will be protected, still, by the Constitution of Canada, 1982.

Are there economic development plans for the anticipated land and cash transfer funds and additional funding that Mark referred to (2.1 million)?2021-05-20T18:07:03+00:00

Not at this time. The Capital Transfer can be used as the nation chooses; this will be decided by the K’ómoks Members through engagement and captured in a financial plan moving into the future. If the nation chooses, they may invest some of the Capital Transfer into Economic Development ventures and opportunities.

The $2.2 million that Mark was referring to is specifically to pay for the cost of running our own government. This is a vast improvement from the currently underfunded amount of $220,000 the nation currently receives to run our nation under the Indian Act.

It is a significant amount of responsibility to future generations and I am wondering how to keep it sustainable to how many youths we have currently and, in the future, can we keep this treaty sustainable?2021-05-20T18:08:08+00:00

This question has many answers. Currently the K’ómoks Treaty Team is working on securing funding to set out a long-term plan to develop with the K’ómoks Members to ensure sustainability into the future.

Will there be a mentorship initiative or program to keep it sustainable if K’ómoks were to sign treaty?2021-05-20T18:09:02+00:00

At this time K’ómoks is working on a Capacity Action Plan that sets out not only a draft potential organizational chart complete with the skills and education required to fill that position to make available to K’ómoks Members to prepare for future opportunities.

With the land package being contemplated, there will be many more opportunities beyond working within the nation’s government or administration. As we develop a new city, we will need all that is required for that growth, in turn K’ómoks Members are encouraged to follow their dreams and the nation will support our members whenever and wherever possible.

Can you please share some best practices from your (Huu-ay-aht) experiences?2021-05-20T18:10:05+00:00

Trudy’s answer:

  • Involve community members with their relevant areas of interest/expertise wherever possible throughout all phases of the treaty process i.e., 4, 5, 6 (BCTC Treaty Process)
  • Commence and steadily support the separation of administration from (operational) and politics (governance) – this can be done in a respectful and professional manner that leaves everyone feeling positive and appropriately facilitates division of labour for a sustainable function
  • The attached governance best practices were implemented before effective date as part of a change management strategy
Is there a way we can get a survey out to youth ages 12-30 about what they feel they want to do and if we do have young members who are already taking schooling efforts that could potentially fill these positions?2021-05-20T18:13:19+00:00

Yes. A survey was rolled out in February 2021 that included these questions as part of the Socio-economic Indicators project. A similar survey was developed for youth under the age of 18 also.

Did they (Huu-ay-aht) have a change management Plan? And what were the thing they had in place prior to treaty that sustained them through the change?2021-05-20T18:14:13+00:00

Trudy’s answer:

I do not have access to or recall a compiled change management plan per say, however, based on memory, I offer the following:

  • Having a consistent Executive Director (band administrator) throughout the change was very helpful
  • Early implementation of various aspects of post Effective Date governance i.e., the separation of administration from politics was extremely helpful and is an ongoing priority.
  • Having a clear, current, and achievable vision and strategic plan / direction has been very helpful.
With cost savings on member travel, etc. due to COVID-19, what would this funding be directed to now?2021-05-20T18:15:18+00:00

This funding has been directed to creating materials that will be made available through the new website. This includes such things as; videos, podcasts, summary booklets. During these unprecedented times of covid-19, we have had to shift our focus on creating and providing more digital materials for membership.

How are we going to move forward with culture when we have members from other communities colonizing us from within? For example, non band members claiming Hereditary Chief and, on the election, ballot.2021-05-20T18:16:26+00:00

Currently the Indian Act allows or anyone to run for Chief. This is remnants of an old practice where governments would use the Indian Act to put Indian Agents in charge of nations as Chief.

With a Treaty, only K’ómoks Members who are enrolled under the Treaty will be allowed to run for office.

Has this (socio-economic indicators survey/data) been used in other communities and benefited from outcomes?2021-05-20T18:17:22+00:00

Each socio-economic indicators survey/data must be designed specifically for each community/First Nation due to factors which are unique to each Community—for example, in the case of K’ómoks the size of the community, the cultural and social and linguistic aspects are unique.  With this said, there are many examples of Socio-economic indicators and surveys to measure community well-being and, as in the K’ómoks case, the socio-economic gaps between K’ómoks and communities of similar size and circumstance.  The specific socio-economic well-being survey being considered by K’ómoks has been developed and implemented by Mark Anielski working with the Opaskwayak Cree Nation who are just starting to use it and have already found good purpose for it in governance.

Have elders been asked to have input on the cultural indicators for guidance and support?2021-05-20T18:18:18+00:00

The survey is designed to solicit input from elders, youth, and everyone in between, as well as members living at home (K’ómoks I.R. #1) and living away from home.  The data from this survey will allow K’ómoks to track a broad range of relevant indicators and the survey will be improved over time with input from all membership including elders as it will be repeated over time to get a picture of how K’ómoks socio-economic well-being changes over time.

How can we have access to the ” K’ómoks Constitution”?2021-05-20T18:19:17+00:00

To have a copy of the current Draft K’ómoks Constitution please Contact Fran Prince at princefmp@shaw.ca or leave a message at the K’ómoks Administration Office at 250-339-4545.

There are big breakthroughs with indigenous scholars on indigenous governance/self determination and indigenous frameworks that aim to not to simply “fit” info westernized frameworks, will there be opportunities to bring in guest speakers on this and to make our constitution also an indigenized visual framework?2021-05-20T18:20:12+00:00

The K’ómoks Constitution has been drafted by K’ómoks members and guided by legal professionals. There have been many conversations of how to incorporate culture and specific K’ómoks concepts of law. A major consideration in not incorporating certain traditions and culture was because after Constitution becomes law, it now becomes a part of BC and Canadas legal fabric and can be challenged in court.

For instance, there may be a situation where the Constitution is challenged due to a misinterpretation of a cultural concept, the interpretation of that cultural concept can change in court and become common law in Canada and BC.

There will be room to build our cultural concepts onto policies and regulations to reflect our traditions and teachings.

When and if treaty is signed will there be an elder’s council involved with decision making or present for guidance and protocol? Or a council created?2021-05-20T18:21:45+00:00

There is not a specified elder’s council in the K’ómoks Constitution. The Constitution allows for the creation of Committees that are intended to provide advise and recommendations to the K’ómoks Government, an elder’s committee could be created to provide guidance and protocol.

Have you had an enforcement issue post treaty that you can share (from Maa-nulth)? What was the resolution?2021-05-20T18:22:57+00:00

Brent’s Answer:

There has only been one significant enforcement issue.  The offence was the illegal harvesting of an elk.  Because the poacher was a person of some significance, the Nation wanted to proceed under its own laws, however, because the Nation did not have its own enforcement officers, the investigation was carried out by an external enforcement agency which failed to recognize the limitation period for laying charges under Maa-nulth law.  The limitation period was missed, so in the end, charges were laid under Provincial law and the poacher plead guilty.  The community, through its elders’ advisory committee, took other steps internally, outside of its own statutory framework, to also address the issue.  The Maa-nulth law has since been amended to provide for a longer and more flexible limitation period for laying charges once an offence is discovered.  This longer period allows more time for a proper investigation and decisions to be made by the Nation regarding whether or not to proceed with a prosecution under its own laws.

How have you (Maa-nulth) dealt with bad behaviour if police will not enforce or cannot enforce criminal laws (lack of evidence)?2021-05-20T18:23:44+00:00

Brent’s Answer:

This issue is an ongoing struggle, although we have recently been making progress.  We recently were able to utilize the RCMP to issue a Compliance Notice against a non-citizen resident on treaty lands who had threatened another person with a rock.  No physical harm was done, but the Nation decided it was important to document the incident and to let the perpetrator know such behaviour would not be tolerated in the future.  One of the Maa-nulth has recently enacted a banishment law that utilizes traditional practices with a healing circle built into the due process, including steps to ensure the principles of fundamental justice and procedural fairness are adhered to.  Other Maa-nulth have enacted trespass laws which allow for banishment through an internal administrative process that also ensures the principles of fundamental justice and procedural fairness are followed.  These laws have not yet been tested.

Has there been any training for local RCMP/enforcement officers to be educated on Maa-nulth/Indigenous matters, as well as on treaty processes to better understand the treaty and Indigenous self-governance?2021-05-20T18:24:35+00:00

Brent’s Answer:

The Maa-nulth Enforcement Advisory Committee is developing an Enforcement Guide and a Cultural Sensitivity Training curriculum that will form the basis for a two-day course introducing and guiding external enforcement agency officers in their enforcement of Maa-nulth laws.  This work has not yet been finalized (interrupted by the pandemic) and is ongoing.

Will the RCMP that are working with K’ómoks have to take cultural safety training?2021-05-20T18:25:28+00:00

Brent’s Answer:

Brent thinks it would be a good idea, but that will be up to K’ómoks and the RCMP to decide.

Who is creating the Cultural Sensitivity Course with the RCMP? Is it an Indigenous Person/communities/indigenous scholar?2021-05-20T18:26:19+00:00

Brent’s Answer:

The Maa-nulth Enforcement Advisory Committee (all Indigenous members) is overseeing the development of the course.  Contributors include both Indigenous and non-Indigenous lawyers, as well as other Indigenous professionals.

Is Maa-nulth using any kind of restorative justice programs?2021-05-20T18:27:17+00:00

Brent’s Answer:

Not currently, no.  As mentioned earlier, one Nation has developed a law that includes a healing circle and other traditional practices that an offender may choose to participate in so as not to be banished from the community for their bad behaviour.

Is the assumption that land code is not enforceable unless we have mechanisms under treaty?2021-06-14T22:34:15+00:00

This entire question of enforcement has plagued all First Nations – The RCMP will not enforce First Nations laws because prosecutors will not prosecute. So, the rule of law stops on the borders of Indian Country. Some communities have found creative solutions. – Tla’amin (Sliammon) uses a private security company and the police come to observe. K’ómoks has tried to use local private security companies, but they will not enforce Indian Band laws. Tsawwassen pays a lot of money each year to the Delta Police to enforce their laws. West Bank is the only First Nation is known of that has gone a long way to solving the problem and they say it is because of their self-government agreement as they got a judge to say the police must enforce orders made under West Bank law. They also have a particularly good relationship with the police and have a tripartite policing agreement that helps. It also helps that they are not Indian Act Bands. But even West Bank has been unable to deal with CP holders dealing in drugs because the RCMP have not been able to get enough evidence. K’ómoks has been the leader on changing this in British Columbia for Land Code bands because of the ruling in K’ómoks v Thordarson, but the RCMP now say they need a court order each time, and that is expensive. The K’ómoks is working on this and on their relationship with the RCMP, as well as getting a law in place that both the RCMP and security companies will be willing to enforce – but it is a work in progress.

Treaty provides a better opportunity because Canada and BC have become more aware of the problem. We are working together with a bunch of First Nations as well as with Canada and BC on language that will give us better tools to enforce FN laws. This involves working on the relationship between K’ómoks treaty laws and the provincial enforcement machinery. They have to harmonize, and right now they do not. But K’ómoks still need the RCMP to be willing to enforce. So, it is not just a problem for K’ómoks, and it is not a problem that Chief and Council can solve on their own. It is a systemic problem, and we need Canada and BC to work with us.

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