About the Final Agreement between Tla'amin Nation, Canada and British Columbia

Benefits of certainty

Section 35(1) of the Constitu­tion Act, 1982 recognizes and affirms existing Aboriginal rights and title. However, in the absence of a treaty, there is uncertainty as to the nature, scope and content of those rights.

A fundamental goal of a treaty is to achieve certainty. This means that the ownership and use of lands and resources will be clear and will result in predictability for continued development and growth in the province. Ongoing uncertainty has sometimes delayed or disrupted economic activities, resulting in lost investment estimated to be in the billions of dollars. Court cases have been, and continue to be, costly and divisive.

The Tla'amin Final Agreement brings certainty with respect to Tla'amin Nation rights to use, own and manage lands and re­sources throughout its claimed traditional territory, which cov­ers 609,000 hectares including marine areas. It provides the Tla'amin Nation with modern governance tools to build strong and workable relation­ships with other governments, including federal, provincial and local governments.

Canada, British Columbia and Tla'amin Nation intend that a treaty resolves long-standing issues regarding undefined Aboriginal rights and title, and bring certainty and economic benefits not only to Tla'amin members, but also to the entire region.

Full and final settlement

The Tla'amin Final Agreement provides full and final settle­ment in respect of Tla'amin Ab­original rights, including title. It sets out the section 35 rights of Tla'amin Nation, the attributes and the geographic extent of those rights, and the limita­tions to those rights to which Canada, British Columbia, and Tla'amin Nation have agreed.

The Final Agreement can be amended, but all three parties – Canada, British Columbia and Tla'amin Nation – must be in agreement. There is no provision to allow one party to alter it unilaterally.

Dispute resolution

Through the Final Agreement, Canada, British Columbia and Tla'amin Nation agree to develop respectful working re­lationships and to identify and resolve issues early, efficiently and collaboratively. In the event of a dispute, the parties will participate in a prescribed dispute resolution process

Tla'amin lands

The treaty land package consists of approximately 8,323 hectares of treaty settlement lands, known as Tla'amin Lands.

This includes approximately 1,917 hectares of former Tla'amin reserves and 6,405 hectares of former provincial Crown land. The total land package reflects approximately 2.6 per cent of Tla'amin's traditional territory. Also, 0.97 hectares known as the Lund Hotel Parcels have become treaty settlement land.

Tla'amin Lands were transferred to the Tla'amin Nation on April 5, 2016, the Effective Date of the treaty and are owned by Tla'amin Nation in fee simple. Tla'amin Nation has law-making authority with respect to management, planning, zoning and development on Tla'amin Lands. Federal and provincial law will also apply to all lands owned by Tla'amin Nation.

Any interests existing on Tla'amin Lands prior to the transfer, and identified in the treaty, will either be replaced or continued on the Effective Date of the treaty.

Other lands

Tla'amin Nation also own two parcels as private land owners but do not have law-making authority over these parcels.

The parcels are 0.3 hectares on Savary Island and a 0.08 hectare parcel in Powell River (on Wharf Street near the ferry dock).

Additions to Tla'amin lands

The treaty includes different ways through which Tla'amin Nation may add to treaty settlement land in the future. One of these involves the purchase of land by Tla'amin Nation or a Tla'amin Citizen whereby if certain conditions outlined in the treaty are met, the land may become Tla'amin Lands.

Crown land parcels totaling 1,212 hectares have been identified, which if purchased by Tla'amin Nation, could become treaty settlement land.

Tla'amin lands and the agricultural land reserve

Approximately 472 hectares of Tla'amin Lands have been removed from the Agricultural Land Reserve. Approximately 273 hectares of Tla'amin Lands remain in the ALR.

Land use planning

Tla'amin Nation may participate in any provincial land use planning process affecting Tla'amin territory.

Access

The treaty includes provisions to ensure public access for rights-of-way and navigable waters, and specific access for owners of adjacent fee-simple parcels and tenure-holders. Residents living on Tla'amin Lands, including leaseholders, continue to have access to their properties.

Highways remain provincial Crown land and are specifically excluded from Tla'amin Lands.

Access is also provided in the treaty to permit law enforcement, emergency response and public utility installations.

Tla'amin public lands

With the exception of those lands designated Tla'amin Private Lands, Tla'amin will allow reasonable public access on Tla'amin Lands for temporary recreational and non-commercial purposes, such as hunting, fishing, hiking and canoeing. Public access does not include harvesting or extraction of resources owned by Tla'amin Nation.

Tla'amin Nation may, for the purpose of monitoring and regulating public access, require persons other than Tla'amin Citizens to obtain a permit or licence or to sign a waiver prior to accessing Tla'amin Lands.

Tla'amin private lands

Tla'amin may designate portions of Tla'amin Lands as Tla'amin Private Lands and restrict public access.

Prior to making such a designation, Tla'amin Nation will inform and consider the interests of Canada, British Columbia and the public. Ahgykson (Harwood Island) will be designated as Tla'amin Private Lands on the Effective Date of the treaty.

Sunshine coast trail

Tla'amin Nation allows reasonable public access to those portions of the Sunshine Coast Trail that are on Tla'amin Lands for temporary recreational purposes, provided that this access does not interfere with Tla'amin Nation's ability to authorize the use or disposition of Tla'amin Lands.

Overlaps with neighbouring First Nations

In British Columbia, traditional territories claimed by First Nations often overlap.

Tla'amin has positive relationships with its neighbouring First Nations and has signed Shared Territory Protocol Agreements with the K'ómoks First Nation, Sechelt First Nation, Klahoose First Na¬tion, Homalco First Nation, Te'mexw Treaty Association and the Laich-Kwil-Tach Treaty Society.

Capital transfer

The Final Agreement provides the Tla'amin Nation with a capi­tal transfer of approximately $33.9 million over 10 years. Tla'amin Nation will pay back to Canada, over the same period, the loans taken to negotiate the treaty. Tla'amin Nation also received an Economic Devel­opment Fund of approximately $7.9 million and a Fishing Ves­sel Fund of $285,585.

Programs and services

The Tla'amin Government is delivering agreed upon programs and services under the terms of a Fiscal Financing Agreement. The agreement provides transfers from Canada and British Columbia to support the delivery of agreed upon programs and services by Tla'amin Nation to its mem­bers, as well as funding to sup­port activities to implement the treaty. It will be renegotiated every five years.

The Fiscal Financing Agree­ment provides for one-time and ongoing funding:

• one-time federal funding of approximately $5 million
• federal funding of approximately $9 million per year for the first five years
• provincial funding of approximately $446,000 per year for the first five years

For programs and services provided by Canada or British Columbia that are not included in the Fiscal Financing Agree­ment, Tla'amin Citizens will continue to be able to access those programs and services for which they are eligible.

Resource and revenue sharing

Each year for 50 years, Tla'amin Nation will receive a resource revenue sharing payment of approximately $738,895. Canada and British Columbia will each pay half the costs of these payments. All resource revenue sharing payments will be indexed to inflation.

Tla'amin contribution to programs, services

Tla'amin Nation will contribute to the funding of agreed-upon programs and services from its own sources of revenue. The Own Source Revenue Agreement negotiated among Canada, British Columbia and Tla'amin Nation sets out how Tla'amin Nation's contribu­tion will change in step with its increasing capacity to generate revenues.

Tla'amin Governance

The Tla'amin Final Agreement operates within the framework of the Constitution of Canada, and the Canadian Charter of Rights and Freedoms apply to the Tla'amin government.

With the exception of determining Indian status, after a transition period, the Indian Act will no longer apply to Tla'amin Nation, its Lands or Citizens. Instead, constitutionally-protected self-government provisions enable Tla'amin Nation to make its own decisions about matters related to its culture, the exercise of its treaty rights and the operation of its government.

Law-making powers

The Final Agreement contains law-making powers for matters related to lands, resources, and other areas of governance. Tla'amin Nation areas of authority include the delivery of health services, education, land management and public works.

Federal and provincial laws apply on Tla'amin Lands. In matters where Tla'amin Nation has law-making authority, the Final Agreement sets out which law prevails if a Tla'amin Law conflicts with a federal or provincial law.

In areas related to internal matters, Tla'amin Laws will have priority over conflicting federal and provincial laws. Examples include government administration, governance of Tla'amin Lands, Tla'amin Nation assets on these lands, and Tla'amin citizenship. In other areas, federal and provincial laws will prevail over Tla'amin Laws to the extent of any conflict.

Intergovernmental relations

Tla'amin Lands form part of the Powell River Regional Hospital District and Tla'amin Nation will appoint an elected member of Tla'amin Government to sit as a director on the board. Tla'amin Lands do not form part of any municipality or electoral area, and do not form part of any regional district.

Tla'amin is responsible for managing its intergovernmental relations with local governments, and may enter into agreements with local governments for the provision and delivery of services.

Non-member representation

Residents on Tla'amin Lands who are not Tla'amin Citizens may participate in decision-making processes of a Tla'amin public institution, such as a school or health board, if the activities of that institution directly affect them.

The Tla'amin Government will establish a process for consultation and public involvement in land use and development planning as set out in its Constitution.

Culture and heritage

The Tla'amin Government may make laws applicable on Tla'amin Lands regarding the preservation, promotion and development, and teaching of Tla'amin culture and language. It may also make laws on the conservation, protection and management of cultural heritage sites on Tla'amin Lands.

Forest resources

Tla'amin Nation owns all timber and forest resources on Tla'amin Lands and has authority to manage those timber and forest resources. Tla'amin Nation is responsible for the control of insects, diseases, invasive plants and animals on Tla'amin Lands which may affect the health of forest resources on those lands. Provincial law in respect of the protection of resources from wildfire and for wildfire prevention and control applies to Tla'amin Lands.

Under a side agreement, Tla'amin Nation will receive a total of 78,000 cubic metres of allowable annual cut from provincial Crown land, which includes 28,000 cubic metres per year under British Columbia Timber Sales. In addition, Tla'amin Nation received $350,000 to acquire additional annual cut on a willing seller, willing buyer basis. Each calendar year, Tla'amin Nation will have the opportunity to harvest up to 250 cubic metres of monumental red or yellow cedar for cultural purposes within the Tla'amin area. Monumental cedars are trees older than approximately 250 years and at least 100 cm in diameter.

Wildlife and migratory birds

Under the Final Agreement, Tla'amin Citizens have the right to harvest wildlife and migratory birds for food, social and ceremonial purposes within the Wildlife and Migratory Birds Harvest Area. This right is limited by measures necessary for conservation, public health or public safety.

Tla'amin Nation is able to make laws to regulate the harvest of wildlife and migratory birds by Tla'amin Citizens harvesting under the Tla'amin right to harvest wildlife and migratory birds, including the requirement to carry documentation issued by Tla'amin Nation. Federal and provincial laws, including laws on the use and possession of firearms, apply on Tla'amin Lands and throughout the Wildlife and Migratory Birds Harvest Area.

Tla'amin Nation allows reasonable access to non-members to hunt on Tla'amin Lands in accordance with federal and provincial laws and with Tla'amin Laws respecting access to these lands. Tla'amin Citizens may trade and barter wildlife, wildlife parts, migratory birds and migratory bird parts among themselves and with other Aboriginal people of Canada. Tla'amin Citizens may sell migratory birds and bird parts, wildlife and wildlife parts, and meat and furs, where such sale is permitted under federal, provincial and Tla'amin Nation law.

Guide outfitter tenures that exist on Tla'amin Lands as of the Effective Date of the treaty will continue.

Elk allocation

Under the Final Agreement, Tla'amin Nation receives an allocation for Roosevelt elk of 50 per cent of the total allowable harvest of Roosevelt elk for the Powell-Daniels, Theodosia and Lois Harvest Areas. Harvesting of this allocation takes place within the designated Tla'amin Wildlife and Migratory Birds Harvest Area.

The Final Agreement also allows for Tla'amin Nation to enter into an agreement with another First Nation to authorize members of that First Nation to harvest from Tla'amin's allocation.

Tla'amin agreement

The Final Agreement sets out Tla'amin Nation's rights to harvest natural resources. In some cases, such as timber and subsurface resources, these harvesting rights apply on Tla'amin Lands. In other cases, such as the harvest of wildlife or fish, these rights may be exercised in wider geographic areas described in the Final Agreement.

Further, Tla'amin Nation is able to make laws regarding natural resources on Tla'amin Lands and regulate Tla'amin harvesters throughout the Tla'amin Nation harvest areas. Federal and provincial laws apply, along with Tla'amin Laws, and the Final Agreement clearly sets out which law prevails if there is a conflict.

Plant gathering

Under the Final Agreement, Tla'amin Citizens have the right to gather plants for food, social and ceremonial purposes on provincial Crown land within the Tla'amin Plant Gathering Area. This right is limited by measures necessary for conservation, public health or public safety. The authority for managing and conserving plant resources will remain with the relevant federal or provincial minister.

Water

British Columbia has established a water reservation under the Water Sustainability Act for Tla'amin Nation of 11,225 cubic decameters of water per year for domestic, agricultural and industrial uses from thefollowing streams:

• SliammonCreek
• Appleton Creek
• Okeover Creek
• Bern Creek
• Whiskey Still Creek
• Theodosia River
• Kwehtums Kahkeeky

This covers surface waters only and further negotiation and agreement would be required for groundwater use.

Existing third-party water licences on streams that are subject to Tla'amin Nation water reservations are not affected by the water reservation and retain their existing priority date.

Water licences on streams subject to Tla'amin water reservations retain their existing priority. British Columbia has established hydro power reservations under the Water Sustainability Act for Tla'amin on Sliammon Creek, Appleton Creek and Theodosia River for five years to enable Tla'amin Nation to investigate the suitability for hydro power purposes.

Planning and management off Tla'amin lands

Tla'amin Nation has the right to participate in any provincially developed public planning process within the Provincial Public Planning Process Area. Tla'amin Nation may make proposals to British Columbia to establish a public planning process within Tla'amin territory.

The Final Agreement does not prevent Tla'amin Nation from participating in a provincial process or institution, including a process or institution that may address matters of shared decision-making, or any provincial programs, policies or initiatives that British Columbia makes generally available to First Nations.

Theodosia river watershed

The Final Agreement provides that Tla'amin Nation and British Columbia will negotiate and attempt to reach agreement on a shared decision-making agreement for the Theodosia River watershed.

Environment

Provincial and federal laws concerning environmental protection continue to apply on treaty settlement lands. The Tla'amin Government is able to make laws concerning environmental protection on Tla'amin Lands. Federal and provincial laws will prevail in the event of a conflict.

Tla'amin Nation is able to participate in environmental assessment processes regarding its lands, and the Tla'amin Government may enter into agreements with other governments on environmental protection and environmental emergencies.

Parks and protected areas

The responsible minister retains the authority to manage provincial and national parks, protected areas, and marine conservation areas, in a manner consistent with the treaty.

Annual allocations of fish for domestic purposes within the Tla'amin fishing areas

Fishery management and conservation

Canada and British Columbia retain authority to manage and conserve fish, aquatic plants and fish habitat, according to their respective jurisdictions.

Tla'amin Nation has law-making authority with respect to the internal regulation of their fisheries, including who can participate in the harvest of fish and how the harvest will be distributed.

Canada and Tla'amin will establish a Joint Fisheries Committee (JFC) to undertake cooperative planning for Tla'amin fishing, fisheries management activities, and other fisheries-related matters. The committee may make recommendations to the minister of Fisheries and Oceans Canada and the provincial minister of Forests, Lands and Natural Resource Operations.

Shellfish beaches

British Columbia has undertaken steps to limit the activities it will authorize on 10 specific beaches in the Powell River area in order to provide opportunities for shellfish harvesting by recreational harvesters and First Nation harvesters seeking shellfish for food, social or ceremonial use.

Tla'amin commercial fishing

Tla'amin participation in the commercial fishery will be fully integrated with the general commercial fishery and conditions of licences issued by the minister to Tla'amin will be the same as or comparable to the conditions applicable to licences of the general commercial fishery.

Tla'amin commercial fisheries will not be conducted under a harvest agreement. Access to the commercial fishery will be obtained from existing capacity within the commercial fishery.

• A halibut Category FL fishing licence with associated lingcod and dogfish quotas currently held by Tla'amin under the Allocation Transfer Program will be issued to Tla'amin as a commercial licence with the conditions of a halibut Category L commercial fishing licence.
• A prawn Category FW fishing licence held by Tla'amin under the Allocation Transfer Program was issued to Tla'amin as a commercial licence, with the conditions of a prawn Category W commercial fishing licence.

Indigenous and Northern Affairs Canada will provide $1.4 million to Tla'amin for the purposes of increasing their capacity in the commercial fishery.

Taxation and Tla'amin Nation

Taxation is an important element of the Tla'amin Final Agreement as it can contribute to the foundation upon which future revenue capacity for the Tla'amin Government can be built.

The main tax-related elements addressed through the Final Agreement are: the tax powers of the Tla'amin Government, the tax treatment of Citizens, and the tax treatment of the Tla'amin Government and of the various assets transferred or recognized under the treaty.

Taxation powers of Tla'amin Nation

The power to tax is a basic feature of governments. Not only does it provide financial resources to deliver various programs and services, it also serves as a means of increasing the Tla'amin Government's accountability to its taxpayers.

As a treaty First Nation, the Tla'amin Nation will have the ability to levy direct taxes on its Citizens within Tla'amin Lands. Outside of the treaty, Canada and British Columbia are prepared to negotiate how a Tla'amin Nation tax could also apply to non-members within Tla'amin Lands. In either case, the Tla'amin Government's tax powers will not be exclusive, and will operate concurrently with the continuing tax authority of Canada and British Columbia as provided in the Constitution of Canada.

Canada has negotiated such agreements with other First Nations in Canada. Under these agreements, Canada has vacated some of its tax room – that is, agreed not to impose a portion of its taxes – to allow the First Nation to impose sales or personal income taxes that are fully harmonized with the taxes vacated by Canada.

These agreements coordinate the First Nation and federal taxes and ensure that the tax burden on taxpayers remains the same both on and off Tla'amin Lands. Canada Revenue Agency will continue to administer these taxes as they apply to non-member residents on Tla'amin Lands exactly as it does for all taxpayers.

The Final Agreement contemplates that Tla'amin Nation could enter into such arrangements for the coordination and harmonization of its taxes. Such arrangements would allow the Tla'amin Government to implement taxation in an effective and efficient manner, while avoiding the costs associated with the design, implementation and administration of an independent tax system.

Real property taxes

Under an agreement with British Columbia outside of the treaty, the Tla'amin Government will collect all real property taxes applicable to both Tla'amin Citizens and non-members resident on Tla'amin Lands.

This agreement applies to all Tla'amin Lands. The Tla'amin Government is responsible for providing local services to all residents on Tla'amin Lands.

The agreement stipulates that Tla'amin property taxes will be applied equally to Tla'amin Citizens and non-members resident on Tla'amin Lands.

Non-member representation

There will be non-member representation on any Tla'amin public institution that makes decisions relating to taxation matters that directly and significantly affect non-members.

The non-member representative will be selected by non-members and will have the ability to participate in discussions and vote on taxation matters that directly and significantly affect non-members. Non-members will have the same rights of appeal as members.

Tax treatment of the Tla'amin government

The tax treatment of the Tla'amin Government is addressed primarily outside of the treaty through an agreement called the Tax Treatment Agreement. For example, the Tax Treatment Agreement will:

• Provide for refunds of sales taxes and provincial motor fuel taxes for non-profit and public purpose activities of the Tla'amin Government; and
• Provide the Tla'amin Government with the same exemption from income tax under the federal Income Tax Act as provided to municipalities and other public bodies performing a function of government in Canada.

Tax treatment of Tla'amin citizens

Under the Indian Act, status Indians are eligible for a tax exemption in respect of property (including income) situated on a reserve.

As the relationship between the federal and provincial governments and Tla'amin Nation is redefined and the Indian Act ceases to apply after the Effective Date of the treaty, the tax exemption under the Indian Act will also cease to apply following a transition period.

The tax exemption will end after eight years for transaction (e.g. sales) taxes and 12 years for all other taxes, including income taxes, to allow affected individuals to prepare for and adapt to the change in their taxable status.