Table Of Contents
This chapter sets out the nature of the Agreement or Treaty and the legal relationship between the three parties to the K’ómoks First Nation (K’ómoks), Treaty. The three parties are K’ómoks, British Columbia (BC), and Canada. The provisions of this chapter apply over any conflict that may be found in other parts of the Treaty.
- The K’ómoks Treaty is Living Agreement that will evolve over time. The Canadian Charter of Rights and Freedoms will continue to apply to K’ómoks and K’ómoks Members.
- K’ómoks members will not lose Indian Status, and our Indian Reserve lands will become part of our Treaty Settlement Lands that will be known as K’ómoks Lands.
- K’ómoks and K’ómoks members will continue to be eligible for programs and services currently provided by Canada for Indigenous People, and
- K’ómoks Members will continue to be eligible for programs and services that all other Canadians are entitled to.
Aboriginal Rights and Title
K’ómoks Aboriginal rights, including aboriginal title and the inherent right to self-government, are recognized and affirmed and will be exercised as agreed to in the Treaty. The Treaty will clearly state that existing rights are not extinguished, surrendered or modified. There is no extinguishment. There is no modification.
Periodic Renewal allows for the three governments (Canada, BC and the Nations) to open parts of the Treaty to renegotiate every 10 years. This includes a “me to” clause, so if another treaty gets something that is not in the K’ómoks Treaty, it can be added to the K’ómoks Treaty. Periodic Renewal also allows changes to the Treaty because of unforeseen circumstances, including changes to the environment. This allows for the treaties to evolve with the ever-changing world. This is why it is referred to as a “Living Agreement”.
Orderly Process/New Aboriginal Rights
If a new aboriginal right is established through the courts, and if K’ómoks can establish it had that right historically, then it can be added to the Treaty.
Consultation, based on the common law duty to consult, is required for any activities that affect people’s ability to exercise their rights or affect K’ómoks Lands.
K’ómoks will no longer be governed under the Indian Act. K’ómoks will be responsible for making its own governance decisions and laws, based on the K’ómoks Constitution and the Treaty.
- exercise the right to self-government,
- establish its own constitution,
- elect its own government,
- have the authority to create its own public institutions, and
- provide non-members who live on Treaty Settlement Land (TSL) with access to the K’ómoks Government for matters that directly affect them.
Chief and Council of the day will form the inaugural Government and remain in office for six months after the Effective Date of the Treaty. A new election will be initiated within six months and take place no later than one year after the Effective Date. The K’ómoks Government is responsible for enforcing K’ómoks Laws and may impose penalties or fines for breaches of its laws.
Local Government Relations
Local Government Relations is very important to K’ómoks. K’ómoks intends to work closely with the local governments in the territory to ensure a smooth implementation of the Treaty.
Local Governments include Town of Comox, City of Courtenay, Village of Cumberland, Kelsey Bay, Comox Valley Regional District, Strathcona Regional District and Islands Trust.
- not be part of a municipality,
- manage intergovernmental relations with local governments,
- enter service agreements with local governments, and
- make best efforts harmonize land use planning with local governments for lands that touch a shared boundary between them.
K’ómoks can choose to become a member of the Comox Valley Regional District or the Strathcona Regional District.
Culture and Heritage
This chapter sets out provisions that relate to Culture and Heritage.
- K’ómoks may make laws to preserve, protect, and develop K’ómoks culture and K’ómoks language.
- K’ómoks can make laws to protect Heritage Sites on K’ómoks Lands.
- BC commits to return K’ómoks artifacts held in BC museums.
- Canada commits to return significant K’ómoks artifacts held in Canadian museums.
- K’ómoks may re–name geographical features in the K’ómoks territory in accordance with provincial law.
The land package is still under negotiations. When the Treaty is ratified by the K’ómoks Members, K’ómoks will own a combination of federal and provincial crown land, private lands and current reserve lands. The lands under negotiations total about 12,500 acres. These lands will come to K’ómoks in two phases. A majority of the lands will come to K’ómoks when the Treaty comes into effect (Effective Date), the rest will come gradually as “pre-approved additions” to K’ómoks Lands. The land area will increase substantially from the current K’ómoks reserve lands which combined are only 813.5 acres (329.2 ha).
K’ómoks Lands (still under negotiation and can change)
- 813.5 acres (329.2 ha) of Reserve Lands
- 252.3 acres of (102.1 ha) of KFN privately owned lands
- 6,865.4 acres (2,778.3 ha) of Crown Land
- 4,596.2 acres (1,860 ha) of pre-approved additions (woodlots)
- proposed lands total 12,5274.4 acres (5,069.6 ha)
- K’ómoks will have the ability to “add” new lands in the future
- Reserve lands will no longer be owned by Canada.
- K’ómoks will own land in “fee simple”, which means as private lands.
- Subsurface Resources currently owned by BC will also form part of Treaty Settlement Lands (TSL).
Interests on K’ómoks Lands
- Existing tenures, such as mineral tenures, water licenses, and aquaculture, will continue.
- have law-making authority on K’ómoks Lands, including laws respecting education, health, family services, language, culture, children, land use, taxes, local matters including emergencies, etc.,
- have law-making on its foreshore like a local government,
- create ownership interests for community members, and
- be responsible for its own land management.
K’ómoks will own and control the subsurface resources under our lands.
- K’ómoks will own and control all mineral resources and mineral royalties under K’ómoks Lands which are currently owned by BC.
- K’ómoks will be the only ones with the authority to set and collect fees, rents, royalties, and any other charges for any minerals which we will control on our lands.
- Existing mineral tenures will remain under the control and management of British Columbia.
With fee simple ownership of K’ómoks Lands, K’ómoks may “register” lands in the provincial land registry system, or create its own land title system. But, because of the costs and risks associated with creating a new land title system, K’ómoks will use the provincial land title system.
Summary of “Registering” Lands
- When K’ómoks individuals have a “registered” title to lands, they have a form of ownership that can be taken to a lender.
- Registered lands can be bought and sold, and therefore have a significant value to the holder.
K’ómoks people will continue to have access to K’ómoks Lands and Crown lands.
- Most K’ómoks Lands will be treated as “private lands” and the public cannot access these “private lands” without authorization.
- K’ómoks will allow for non-K’ómoks members to cross through K’ómoks Lands to get to their properties, or tenures, if no reasonable access is available through Crown lands.
- K’ómoks has agreed that some K’ómoks Lands will be preserved in their natural state and that the public can use such lands. These “Tribal Parks” will be owned and governed by K’ómoks.
Roads and Rights of Way
K’ómoks will own roads that pass over K’ómoks Lands, unless they are currently used as public roads.
- can make laws regarding traffic, transportation, parking, and roads on K’ómoks Lands, and
- will be responsible for the costs of upkeep and maintenance for roads on K’ómoks Lands.
Resource Harvesting Rights
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.
K’ómoks has the right to hunt wildlife and migratory birds and gather plants and timber for Food, Social and Ceremonial (FSC) purposes throughout the K’ómoks Territory. Any limitations on that right will be included in this chapter. This is referred to as the “Right to Harvest”.
- The right to hunt and gather will exist inside a K’ómoks Harvest Area.
- The right will be limited by conservation, public health and public safety.
- Harvesting of timber for FSC purposes will be in accordance with a Timber Harvest Agreement.
- BC will enter into the Timber Harvest Agreement with K’ómoks, which ensures K’ómoks has access to monumental cedar and cypress for cultural purposes (canoes, totem poles, longhouses, community buildings).
- will have a co-management role in wildlife,
- its members may exercise the right subject to some conditions under K’ómoks Law,
- can create laws to designate its hunters and gatherers,
- can designate the methods, timing and geographic location of the harvest of wildlife in the K’ómoks Harvest Area,
- may trade and barter products of the Right to Harvest,
- may sell products of the Right to Harvest, in accordance with federal and provincial laws, and
- status Indian members may harvest wildlife outside of the K’ómoks Wildlife Harvest Area in the same manner as other status Indians in British Columbia, in accordance with the Provincial Wildlife Act, and Regulations.
Parks and Planning
K’ómoks will have a role in planning on lands outside of K’ómoks Lands within the Traditional Territory.
- K’ómoks may enter into agreements to co-manage parks within our Territory.
- K’ómoks will create some Tribal Parks to be owned and governed by K’ómoks.
- BC will consult with K’ómoks before decisions concerning any new parks are made.
- K’ómoks will have the right to participate in public planning processes.
- K’ómoks will allow the public to access K’ómoks Tribal Parks.
Shared Governance / Co-management
K’ómoks will have a role in the management and stewardship of the lands and resources throughout the K’ómoks traditional territory. This includes co-management of wildlife, parks, water, and forest resources. K’ómoks will receive funding to negotiate and implement these co-management regimes.
Environmental Assessment and Protection
K’ómoks may participate in the development of major projects in the K’ómoks territory. K’ómoks will have the right to participate in Environmental Assessments, which will provide a role in protecting the environment.
- No federal or provincial project will take place on K’ómoks Lands without the consent of K’ómoks.
- K’ómoks will have the ability to make laws to protect the environment on K’ómoks Lands.
- K’ómoks will participate in the decisions related to major projects within the K’ómoks traditional territory.
K’ómoks ownership of Forest Resources.
- K’ómoks will own all Forest Resources on K’ómoks Lands.
- Forest Resources includes everything that grows in the forest. (i.e. trees, mushrooms, salal, medicinal plants, cultural plants).
- K’ómoks has the exclusive authority to impose stumpages, rents, royalties for Forest Resources on K’ómoks Lands.
- K’ómoks may make laws, on K’ómoks Lands, for forest practices and standards. The standards will meet or exceed those of the province.
- K’ómoks can export logs from K’ómoks Lands TSL, in accordance with Federal law.
- K’ómoks will enter into a Wildfire Suppression Agreement that limits financial liability for wildfires that start on K’ómoks Lands.
- In addition to forest resources on K’ómoks Lands, K’ómoks has some provincial forest tenures and is seeking further forest tenure in the amount of 50,000 cubic meters annually for a total of 100,000 cubic meters.
K’ómoks will have constitutionally protected access to surface water and groundwater which will be set out as water reservations. Water will be vital to the future of K’ómoks development.
- K’ómoks will have a water reservation providing access to 11,893 cubic decameters of fresh water (enough to supply 20 to 30 thousand people with their annual water supply).
- Additional water rights will be negotiated on the Salmon River.
- The water sources will be from streams flowing through K’ómoks Lands: Puntledge River, Trent River, Oyster River, and Hart Creek.
- K’ómoks will have protected access to groundwater through groundwater reservations under or adjacent to K’ómoks lands.
The Fiscal chapter sets out the commitment for governments to provide Fiscal Financing Agreements (FFAs) to K’ómoks. FFAs will replace annual funding agreements between Indigenous Service Canada (ISC) and K’ómoks. The Fiscal Relationship also addresses two major concerns of K’ómoks: 1) ensuring there will be sufficient funds to get ready for self-government, and 2) ensuring there are sufficient funds to pay for the actual activities of governing.
- Canada will provide K’ómoks FFAs in 10-year intervals.
- The FFA covers costs to run programs and services ordinarily provided by K’ómoks.
- In addition, what is currently referred to as “band support funding” will be increased almost 10 times through an agreement to fully fund the actual “costs of government”.
- We are currently in negotiations around what is referred to as “Self-government start-up costs”. This is to cover all the costs associated with being ready for self-government. We anticipate this will cost about $6 million over a 3-year period.
This chapter sets out the commitment for governments to provide the Capital Transfer Fund.
- We are currently in negotiations with Canada and British Columbia on the Capital Transfer and have not received a final offer. The offer will depend on how much land we also get. The Agreement in Principle contemplated a Capital Transfer of $17.5 million.
This chapter sets out the taxation authority of the K’ómoks Government.
- K’ómoks will have direct taxation authority for K’ómoks Members on K’ómoks Lands.
- K’ómoks will enter into taxation agreements with BC and Canada.
- BC and Canada will have the ability to re-enter a tax room vacated through side agreements.
- K’ómoks may enter into taxation agreements that apply to non-K’ómoks people on K’ómoks Lands.
- K’ómoks may enter into agreements with BC and Canada where taxes are collected on behalf of K’ómoks and returned to K’ómoks.
Canada’s old policy required the gradual elimination of the section 87 Indian Act tax exemption, but we are now in negotiations that could allow that exemption to remain in place.
- K’ómoks will have the ability to generate tax revenues from K’ómoks Lands and residents of those lands.
- K’ómoks will have discretion as to how to use revenues from taxation.
- Continuation of the section 87 Indian Act tax exemption is under negotiation.
Provides a process to resolve disputes or disagreements between K’ómoks, BC and Canada that may arise in the future.
- The Parties agree to a process for resolving disagreements that may arise in the future.
- The dispute resolution process is limited to disputes respecting the interpretation, application, or implementation of the Treaty.
Eligibility and Enrollment
All people of K’ómoks ancestry will be eligible to enroll. K’ómoks people will need to be “enrolled” to become a Treaty beneficiary and to be eligible to vote on Treaty ratification. This chapter is about the criteria for K’ómoks people to “enroll” to become K’ómoks Members.
A person is eligible to be enrolled under the Treaty if that person is:
- a person with K’ómoks ancestry,
- a band member listed or entitled to be listed as a band member on the K’ómoks Band list under the Indian Act, as of the day before the Effective Date,
- a descendant of a person above in a or b,
- an adopted child of a person above in a, b or c, or
- a person who has been adopted under the K’ómoks First Nation custom.
This chapter is for implementing the Treaty. The implementation plan will have a term of ten years.
- The implementation plan identifies the responsibilities of each Party, the responsibilities, and the timeframe for completion.
- The plan can be changed or extended.
- An Implementation Committee will be formed with representatives from K’ómoks, BC, and Canada and will oversee the implementation of the Treaty.
Indian Act Transition
There will be changes that will come into effect once Treaty is completed. K’ómoks will no longer be an Indian Act Band and will have self-government and a much broader range of responsibilities and opportunities.
- Wills and Estates covered under the Indian Act will continue for members who may pass away prior to the Effective Date.
- Canada will provide information to all K’ómoks members on the new process for wills.
- The K’ómoks Land Code will remain in effect for 90 days after the Effective Date, and will then be replaced with a new set of Land Management Laws.
- All of the rights, titles, interests, assets, obligations, and liabilities of the K’ómoks First Nation will be transferred to K’ómoks.
This chapter describes the process for approving the Treaty.
- The Treaty will be initiated by the Chief Negotiators.
- K’ómoks Members will vote on the Treaty.
- K’ómoks proposes that approval will require 50% plus one of eligible voters to participate in the vote and 50% plus one of those to vote yes.
- K’ómoks will form a Ratification Committee with representatives from K’ómoks, BC, and Canada.
- The Ratification Committee will establish and publish its procedures.
- Voters will need to be 18 years of age in order to vote.
- The Treaty is ratified by BC when it is authorized by the Provincial Cabinet and signed by a Minister.
- The Treaty is ratified by Canada when it is authorized by the Federal Cabinet and signed by a Minister.