On September 25, 2017, the BC Supreme Court ruled on a long-standing dispute between Treaty 8 First Nations and Canada, on the one hand, and various non-Treaty 8 First Nations and British Columbia, on the other, as to the location of the western boundary of Treaty 8. The plaintiffs, a group of Treaty 8 First Nations, supported by Canada, asserted that the western boundary of Treaty 8 is the height of land between the Arctic and Pacific watersheds. In contrast, British Columbia, supported by the Kaska Dena Council, argued that the boundary runs along the central range of the Rocky Mountains, east of the Arctic/Pacific watersheds (shown below). The Court agreed with the Treaty 8 First Nations and Canada (indexed as in West Moberly First Nations v British Columbia, 2017 BCSC 1700).

Background

Made in 1899, Treaty 8 has been called by the Supreme Court of Canada, “one of the most important of the post-Confederation treaties” (Mikisew Cree First Nation v. Canada [Minister of Canadian Heritage], 2005 SCC 69 at para 2). The Treaty 8 lands are approximately 840,000 square kilometers, encompassing northern Alberta, northeastern British Columbia, northwestern Saskatchewan and southern Northwest Territories, on which 39 First Nation communities reside.

The Crown sought Treaty 8 in order to access the Klondike during the gold rush. In return for surrendering the land, the First Nations were promised reserves and the preservation of their rights to fish, hunt, and trap, subject to the Crown’s right to take up land. Since as early as 1909, the western boundary of the Treaty 8 lands has been questioned.

The Court’s Decision

At issue between the parties was the interpretation of the phrase, “due west to the central range of the Rocky Mountains, thence northwesterly along the said range to the point where it intersects the 60th parallel of north latitude, …” found in the boundary description set out in Treaty 8. Canada and the Treaty 8 First Nations argued that the phrase meant that the boundary continued along the Arctic/Pacific watersheds, along the continental divide, until meeting the 60th parallel. British Columbia and Kaska Dena Council and the intervenors (other non-Treaty 8 First Nations), argued that the boundary was east of that, running along the Rocky Mountains (para 14). The two boundaries are shown in the following map included in British Columbia’s Response to Civil Claim:

In order to interpret the Treaty, the Court reviewed the geographical knowledge of the area at the time the Treaty was signed, as well as factors such as the conduct of the signatories both before and after the Treaty was signed, including that of successors, noting “the court may consider the entire course of post-treaty conduct for intention” (para 10).

The Court canvassed the history of BC, including the rise of the gold rush, and the treaty-making process in Canada in order to understand the circumstances in which Treaty 8 was formed. The Court also considered whether the treaty language had a meaning that was different to how it was shown in the map representations, including the map attached to Order in Council 2749, which set out Canada’s intention to enter the Treaty (shown above). In order to do so, the Court received and reviewed information from many different types of sources including:

  • Imperial statutes and contemporary legislation;
  • Historical maps from the nineteenth century;
  • Travel accounts from the treaty commissioners;
  • The McKenna-McBride Commission;
  • Expert evidence regarding historical cartography, exploration, mapping and nomenclature of BC mountains, physical geography, linguistics, anthropology including ethnohistory;
  • Language of previous treaties;
  • Dictionary definitions from historical dictionaries; and
  • Testimony of members of the various Aboriginal groups involved, including evidence of connections between Beaver people (east of the Rockies) and the Sekani (west of the Rockies).

The Court ultimately concluded that there was no reason to depart from the maps showing the boundary as the Arctic-Pacific divide. For the “central range” of the Rocky Mountains to be the Treaty boundary, it would have to reach the latitude of 60 degrees north (the northern boundary), yet no one range does so. In contrast, the Arctic-Pacific watershed does continue and crosses the latitude of 60 degrees north (paras 149-151).

Implications

As the Court observed, this case was not about Aboriginal rights, title, or interests that existed before the Treaty or the interpretation of the Treaty’s provisions. The sole issue was the location of the boundary. The decision will require the provincial Crown to consult more broadly in relation to contemplated Crown conduct in the area between the disputed boundaries. It also raises interesting questions in relation to the exercise of Aboriginal rights by members of non-treaty First Nations with traditional territories within the disputed area that the Court determined is covered by Treaty 8.