“K’ómoks First Nation is a prosperous community where each member has the opportunity for self-sufficiency. We will move forward in partnership, exercising our Aboriginal rights and title, and respecting our historical connection to our lands and to one another.”

- People of the K’ómoks First Nation

Questions & Answers

There have been a series of questions asked by K'ómoks First Nation (KFN) members on the treaty Facebook sites, during community meetings and youth council meetings. The treaty team is committed to answering all questions and making those questions and answers available to all KFN members.

Frequently Asked Questions

General Provisions

Governance

Lands

Resource Harvesting Rights

Resource Management

Fiscal Relations

Procedures

Frequently Asked Questions

Do we lose our Aboriginal Rights?

No. We do not give up our Aboriginal Rights. In the treaty, Aboriginal Rights will be modified and continued, they will not be extinguished. Treaty is meant to define Aboriginal Rights and ensure they can be exercised by all KFN members.

We have worked very hard to ensure that KFN Aboriginal Rights are not extinguished. In the General Provisions chapter there is language that says "For greater certainty, any Aboriginal Rights including Aboriginal Title, that K'ómoks First Nation may have will not be extinguished, but will be modified and continue as modified as set out in the Final Agreement."

We will also continue to be eligible for all programs and services available to all Aboriginal people and we will continue to be Status Indians.

Why do we have to jump into a treaty when we don't have the capacity to run self-government?

This raises the important question of training and capacity building. The KFN has the potential to become self-governing. KFN members have the potential to take this on with the proper training, education, mentorship and experience. A capacity plan is being developed for this and will be in place prior to the Effective Date (the date that treaty comes into force).

In addition there will be an Implementation Plan that will outline the steps that KFN, Canada and BC will have to take to Implement the treaty in an orderly manner.

We do not have to take on all the responsibilities of treaty and self-government on the Effective Date. We can take on responsibilities as our capacity develops.

KFN self-government will be developed by KFN and will be different from the Canadian and British Columbian government structures. We will govern ourselves on our lands taking into account the traditional teachings of our ancestors.

Why the rush to sign a treaty?

There is no rush to sign a treaty. The treaty team is committed to taking the necessary time to properly represent KFN in treaty negotiations with BC and Canada, and to ensure the members are fully informed.

KFN has been in the treaty process since 1993. If community members agree with the AIP, we would then proceed to Final Agreement negotiations, and this could take several years.

Every day, crown land is sold to private owners and every day newcomers are taking advantage of our resources and every day that leaves the KFN with less lands and resources. Because of this, achieving a fair settlement will be more difficult as time goes on.

There is an urgency around protecting our lands and resources.

What is the difference between "forestry"and "logging"?

Forestry includes all the aspects of managing the forest, including harvesting, planting, thinning, looking after wildlife, water and soils etc.

Logging only refers to the timber harvesting part of forestry.

General Provisions

What is the purpose of the AIP?

The purpose of the AIP is to let all of the Parties to have a good idea of what a Final Agreement will look like. The community can have a say if they like the way it looks and if they want to continue negotiations. An AIP also allows Canada and British Columbia to transfer to K'ómoks some early benefits–like land. They can do this because the conclusion of an AIP gives all the Parties enough confidence to move forward to the final stages of negotiations.

Does the Final Agreement affect KFN people off-reserve? How?

Yes. All K'ómoks band members and persons of K'ómox ancestry, whether residing on- or off-reserve members will be affected. All K'ómoks people will have rights and benefits defined by the treaty. All programs from Indian Affairs will continue for Status Indians.

In addition, all K'ómoks people, both Status and non-Status will be able to benefit from a treaty benefit package that might include land distribution, the distribution of an annual dividend (KFN earnings), and assistance for elders.

What can we do differently when KFN reserve lands become Treaty Settlement Lands (TSL)? What can we do now with our reserve lands?

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 anything on them without the permission of the Minister of Indian Affairs. For example, if we need a new building, we need the Ministers approval, or if anyone wants to start a business, the Minister must consent.

Also we cannot get a mortgage from a commercial lender for a house on-reserve on our own because we do not actually own the reserve houses we live in.

The K'ómoks First Nation will own the TSL and will be able to allocate ownership of these lands to people. These people may use their lands to get a mortgage from the bank without needing the help of the Minister of Indian Affairs or the Band.

All rules for the lands will be set by the KFN government, and not Indian Affairs and the Minister.

What are the advantages to being under the Indian Act?

We know the Indian Act, and we are used to it. The biggest advantage is the income tax exemption for individuals living on-reserve and earning money on-reserve.

The tax exemption is available because the Indian Act gives a tax exemption for Indians on-reserve. As the reserves will no longer exist, and the Indian Act, for the most part will not apply, the tax exemption will be removed. The KFN government will become the taxing authority and those tax revenues will go to the KFN government.

What happens to KFN members that are not registered under the Indian Act?

KFN members who are not registered may be able to become a KFN member with a treaty. Membership is described in the Enrolment and Eligibility chapter. For this, they will need to prove they have KFN ancestry.

What Aboriginal Rights will continue after Treaty?

The rights to hunt, fish and gather will continue after the treaty. Canada and British Columbia will have a duty to consult with respect to these rights. The right to self-government will also continue after the treaty. All Aboriginal Rights will continue as modified in the Final Agreement.

Governance

Can KFN decisions be appealed or reviewed?

Yes. There will be a process for KFN citizens and other individuals who live within KFN lands to appeal or ask for a review of KFN decisions.

What connection will exist between the KFN government and residents of KFN lands who are not KFN citizens?

Before the Final Agreement, KFN will negotiate procedures on how the KFN government will consult with these individuals about any decision that directly and significantly affect them.

Who will be the first members of KFN government?

Until the first elections for the KFN government are completed, the chief councilor and councilors at that time will be the KFN government. Elections must be held no later than six months after the effective date of the treaty.

What is the connection between KFN laws and federal and provincial laws?

For the most part, KFN laws will regulate KFN issues and will not conflict with any federal or provincial laws.

Some laws may be "inconsistent" or in "conflict". This means that if a person obeys one law, he or she will violate the other law. For each subject matter, the treaty will specify which law will outweigh the other.

The AIP sets out which laws prevail in each circumstance. Generally KFN laws prevail except for cases where federal and provincial laws govern national or provincial standards.

Lands

Why do we want these lands?

Our people have said in the treaty process that our lands are the most important element of the treaty. Lands are valuable, and we can pass them on to our children. There is not much Crown land left in the southern portion of the KFN territory. These specific lands are the most valuable Crown lands within the K'ómoks First Nation (KFN) territory. These lands can provide long-term economic development opportunities for generations to come.

Why is there not much Crown land left in much of our traditional territory?

The Crown gave much of our land to the Esquimalt and Nanaimo (E&N) railway without considering the First Nations in the area. This land was eventually sold to forestry and mining companies.

Would BC have any responsibility to maintain KFN roads?

No. This will be a KFN responsibility.

Will the public have the right to use KFN roads?

Yes, unless the KFN government designates it as a private road.

Why are subsurface resources important?

Ownership of valuable subsurface resources such as gravel, coal, minerals, and gas will provide the basis for economic development in the future.

Will we own all the subsurface resources for all our lands?

KFN will own all the subsurface resources for the treaty lands where the subsurface resources are currently owned by BC. Some of the lands became privately owned due to the E&N Land Grant and will remain privately owned after the treaty.

Resource Harvesting Rights

Why are fish negotiations on hold?

All fish negotiations are on hold because the federal government is waiting for the results of the Cohen Commission. See more on the Cohen Commission at www.cohencommission.ca.

What rights are being negotiated?

Our position in the negotiations is for a treaty to guarantee our right to fish as we do now, not only for fish in the river but to continue harvesting seafood as we do today, we will not accept anything less then what we already have today.

Fish are a resource our people have always used to generate wealth and have used fish as a trade item and fish must be part of an economic package.

We will have a guaranteed percentage of fish so that we could never be cut off from fishing for food when the salmon returns are very low.

Will the KFN government be able to make laws to manage the K'ómoks First Nation fisheries?

Yes. The KFN government will be able to make and enforce laws after treaty. The AIP states what the authority will be.

Will KFN play a role in management of fisheries?

Our position is that KFN must play a role in the management if fish and sea resource through not only a local Fisheries Management Committee but also a part in any regional management committees established on the Puntledge River.

Will we be able to continue to hunt wildlife?

Yes. We will be able to hunt as we do now for domestic purposes, subject only to conservation and legislation for the purposes of public health and safety.

What happens when there is development in the harvest area?

When there is a proposal to develop land that will affect our ability to hunt, BC or Canada will consult with KFN to lessen the impact on our hunting before allowing the development to take place.

Will we be required to pay for hunting licences?

KFN members will NOT be required to have or pay for any provincial or federal licence when hunting inside the KFN Harvest Area. When hunting outside the KFN Harvest Area, KFN members are either subject to BC laws, meaning you must have a licence, or subject to any shared territory agreement with the First Nation whose territory you are hunting on. Hunting on someone else's territory will require a negotiated agreement with that Nation.

Do we continue to have the right to harvest migratory birds?

KFN have the right to harvest migratory birds in a Harvest Area. There will be no requirement for licensing or fees. Harvest allocations are still under negotiation. If there is no allocation, we can harvest as needed for domestic purposes, subject only to conservation and legislation for the purposes of public health and safety.

Will we be consulted if there is conservation problem?

Canada will consult and negotiate agreements with KFN if there is a concern about conservation or if species are considered endangered.

What is meant to the "right to gather"?

The "right to gather" includes picking mushrooms and berries, gathering salal, and picking herbs and medicinal plants.

Can KFN people gather in provincial parks, such as Strathacona Park?

Yes. We can gather in provincial parks as long as it is within the laws of conservation and public safety. Not allowing KFN people to gather in these areas would be an infringement on our Aboriginal and Treaty Rights that are protected by section 35 of the Canadian Constitution.

Will KFN members be able to gather plants for a moderate livelihood and sell what we gather?

KFN’s position is yes KFN people can gather plants for a moderate livelihood, and sell what we gather. BC is considering our position and agrees that nothing in law prohibits us from selling what we gather.

Will we continue to have the right to gather throughout our territory?

Yes. On private lands it will be subject to permission from the owner. (ex of private property is Timberwest company.)

Resource Management

Parks and Planning

What kind of role will KFN have in planning on lands within our traditional territory?

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

How will KFN benefit from shared decision-making?

KFN will have a say in issues, areas and resources within the KFN Territory.

What is the “New Relationship” initiative?

The “New Relationship” is the name for a 2005 agreement between the First Nations Leadership Council and the Province of British Columbia. It is “based on:

respect, recognition and accommodation of Aboriginal Title and Rights
respect for each others respective laws and responsibilities
reconciliation of Aboriginal and Crown Titles and jurisdictions

The parties agreed to establish new processes and institutions for shared decision-making regarding land and resources and for revenue and benefit sharing.”

What is an example of a public planning process?

An example of a public planning process is the ‘Regional Growth Strategy’. It 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.

Forest Resources

What kind of laws can we make about forestry?

KFN may make laws about all KFN forest resources and forest practices except for BC law applying to ‘scaling’ and ‘ timber marking’ of timber moving off of KFN lands, the KFN owns all Forest Resources on KFN Lands. Except for the areas of wildfire and forest health, KFN forest law prevails over B.C. Law.

What’s a “Wildfire Suppression Agreement”?

A Wildfire Suppression Agreement (WSA) is an agreement between KFN, BC, and Canada. The WSA makes sure that wildfires originating KFN land are responded to by BC on the same basis as for provincial crown land. KFN, BC, and Canada will share those costs.

KFN is not responsible for any costs of fire suppression off KFN lands even if the wildfire originated on KFN Lands.

I have heard that exported timber is more valuable? Is our timber exportable?

Yes. Unlike provincial crown timber, after Final Agreement, the timber on our KFN lands will be exportable (subject to Federal Law and policy), but the timber from our crown land tenures will not be exportable.

Water

Do we not have a right to access fresh water right now?

Right now, KFN has a small allocation of water from the Puntledge River to the Puntledge Reserve but this is not enough to ‘service’ any significant development. It is also only available through the Regional District, and they decide how much water is available to us. If the AIP is approved, this water will be available whenever we want.

Do we have to pay for water now?

No. We do not pay for water. We do pay for the service of delivering the water to us.

Why is water vital to KFN’s future?

Quality, fresh water is becoming scarce. It will be scarcer in the future, and we want to secure fresh water for our future. It is very possible that with treaty the KFN will be the largest water-holder as one of the largest landholders in the Comox Valley.

Why can’t we access water from all streams in the Comox Valley, like the Cruikshank River?

We may only access water from streams that are connected with Treaty Settlement Lands (TSL).

Are we going to require storage facilities for water?

Yes, we will need storage facilities for times of ‘low-flow’, usually for July – October, for all streams except for the Puntledge River. This is costly, but deals or partnerships with other players in the Valley can reduce our costs. Adding to our water supply from groundwater sources may also be an option.

Environmental Assessment and Protection

In treaty, does KFN participate in federal or provincial Environmental Assessment?

Yes, if we believe the project will have an environmental impact on the KFN. We will be provided with information needed to properly assess the project impact and an opportunity to participate in any Environmental Assessment of that project.

Will KFN be able to make environmental laws?

Yes, KFN will be able to make laws that apply on KFN lands for:

Environmental Assessment for KFN projects
Environmental Management to protect, preserve and conserve the environment in areas like pollution, waste management, air, and water quality

Who is responsible for environmental emergencies?

KFN will be responsible for prevention, preparedness for, and responding to environmental emergencies that originate on KFN lands. If KFN is unable to respond to an emergency, then BC or Canada may respond. Costs for these activities may be shared with BC and/or Canada, just like what happened when Courtenay was flooded last year and BC provided ‘disaster relief’.

Fiscal Relations

What does the financial part of the treaty look like?

The financial section of the treaty Agreement In Principle (AIP) is called “Fiscal Relations.” The Financial Relations section divides the financial information into four chapters—Fiscal Relations, Taxation, Capital Transfer, and Resource Revenue Sharing.

Fiscal Relations

Is the Fiscal Finance Agreement (FFA) separate from treaty? Why?

Yes, the FFA is negotiated separately from the treaty, but the guidelines for the FFA are in the Fiscal Relations chapter of the treaty. The KFN will need a new FFA every 5 years as our needs change. It is not in the treaty because it will need to change.

What programs and services are included in the FFA?

The FFA funds programs and services for areas like education, social, health, capital, fish, and government functions.

How is the FFA different from what we have now?

These are some of the ways that funding will be different:

With the FFA, the KFN government will be able to spend the money as we see fit and to keep any savings and apply them to other program areas.

The amount of funding will be larger as the treaty results in more responsibility for KFN.

The term of the agreement is longer. Funding for services and programs would be five years with a 2-year extension if needed. This would provide certainty that programs will continue to be funded. Right now, we have to reapply every year.

The reporting requirements are much simpler. INAC will no longer review and audit how the KFN spends money.

Is there place to amend the FFA?

Yes, the FFA has procedures to change programs, terms and conditions, and funding amounts.

Will Own Source Revenue Agreement (OSRA) be part of the treaty?

No, but the terms for how OSRA are negotiated are set out in the Fiscal Relations chapter. The Fiscal Relations chapter also provides guidelines for future negotiators of OSRA.

Is an OSRA fair?

All governments contribute to the cost of programs and services for their people. First Nation governments receive funds to deliver a set of programs and services. It is reasonable that they share in the costs if they are able to.

What is the difference between the OSRA and Tax?

Taxes are a charge to individuals and corporations. The taxation charge is linked to income or to spending. Tax money is one source of revenue to governments.

Own Source Revenue is the combination of taxes and other money that will be collected by the KFN government. The KFN government will use some of the money to offset the cost to Canada of providing funding for programs and services to our members.

Will the OSRA discourage us from increasing our revenues?

No, governments are supposed to spend their money on providing better programs and services to their members, and the OSRA will NOT require the KFN government to spend all of its money—no matter how much money the KFN government receives.

How is the band funded now?

The band currently receives funding from three federal departments, Indian and Northern Affairs Canada (INAC), Department of Fisheries and Oceans (DFO), and Health Canada. The majority comes from INAC and covers programs like k-12 education, income assistance, post secondary education, band funding, and so on.

INAC funding comes in two ways. The first way is based on the cost of programs and services. The second way is in the form of grants.

Health Canada and DFO funding flow under different agreements and have their own terms, conditions, and reporting requirements. All these agreements are one year in length and few programs have any longer guarantee.

How will it change with treaty?

There would be several major changes with a treaty. Some of the changes are:

funding will flow from a single source (instead of three)

length of time for program funding increases

KFN will receive more funds and deliver more services programs

KFN will decide which programs need more funding based on our needs rather than INAC formulas

Capital Transfer

What would happen to the band if the funds ran out?

That would depend on a large number of circumstances including why the money ran out.

Will health, education, and other programs continue after treaty?

After treaty, BC and Canada would continue to fund all of the programs that are currently being funded. This covers programs such as education, including post secondary education, health programs, public works, and all other ongoing programs. We are not expected to pay for ongoing programs out of the capital transfer payments.

Taxation

Why will we have to pay taxes under treaty?

At this time, Status Indians are subject to the same tax rules as other Canadian residents unless:

You are a status Indian employed on-reserve, then you do not have to pay income tax.

You are a status Indian and are receiving goods delivered to a reserve, then you do not have to pay HST.

However, if you are a status Indian and live, work, and shop off-reserve you pay taxes just like all other residents living off-reserve in BC.

With treaty two things will change the taxability of KFN members:

There would no longer be a “reserve.” The land becomes Treaty Settlement Land (TSL).

The Taxation chapter says that Section 87 (the section about tax exemption) of the Indian Act will not apply to a KFN member.

Therefore once the treaty phase-in period is over, KFN members will be subject to tax regardless of where they live.

Are there any tax exemptions in the treaty?

Yes, there are two tax exemptions in the Taxation chapter. The first is related to TSL.

The KFN government will not be taxable on:

any lands it holds that either have no improvements (they are basically untouched), or have improvements but are used for a public purpose and are not-for-profit (for example, a government building or a public park).

KFN capital (the capital transfer under the treaty). If the KFN government pays out a part of the capital transfer to a KFN member, that member will not have to pay taxes on that money.