Case Brief – West Moberly First Nations v. British Columbia, 2017 BCSC 1700
The BC Supreme Court has declared that the western boundary of Treaty No. 8 lies along the Arctic-Pacific divide – something that the Treaty 8 First Nations have known since 1899 but British Columbia inexplicably started to deny in 1988. This decision affirms not only what the First Nations and Canada already knew, but also puts to rest some of the province’s (and other parties) revisionist theories about the Treaty.
The case involves very little law. The decision rests on what is mean by the phrase “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”. The trial judge carefully sifted through the relevant historical and geographical evidence (and the parties’ different interpretations of that evidence) to arrive at his findings of fact.
- Treaty making in north-eastern British Columbia was first considered in the early 1890’s but not seriously pursued until 1897 in light of the Klondike Gold Rush and the development of overland routes to the Yukon by miners passing through that part of the province (paras. 34-40)
- Federal officials consistently identified both the territory to be treated and the aboriginal inhabitants with whom Canada should treat, up to the Arctic-Pacific divide in the west (paras. 43-60, 156-159)
- While no map was attached to the original 1899 version of Treaty No. 8 by Canada (paras. 75-76), the map attached to the 1900 report of the Treaty Commissioner was indeed the map that should have been attached to the treaty (paras. 82-86)
- Federal officials, when specifically considering the accuracy of the 1900 map in light of the metes and bounds description of the western boundary in Treaty No. 8 in 1909-1910 agreed the map was approximately correct (paras. 89-92, 100-103)
- The south-westerly commencement point of Treaty No. 11 is fixed at the north-western corner of Treaty No. 8 as shown on the 1900 map, and no one has contested the accuracy of Treaty No. 11 (paras. 105, 109-111)
- A map published by James White in 1912 entitled “Indian Treaties 1850-1912” shows the western boundary considerably to the east from that shown in the 1900 map, yet the court did not find that map to carry much interpretative weight in light of specific correspondence from, and reliance on, the 1900 map by federal officials during the McKenna-McBride Royal Commission (paras. 113-114, 154)
- Interpreting the phrase “central range of the Rocky Mountains” is informed by how those words were understood in relevant statutes and boundary descriptions in Canada in the late nineteenth century – all of which used the Rocky Mountains to describe the divide between the Pacific watershed to the west and the Arctic/Atlantic watersheds to the north and east (paras. 120-137, 145-151)
- The Rocky Mountains did not act as a hard and fast territorial boundary between the Beaver and Sekani people, who travelled across those mountains “at will” (para. 169). As a result, the Sekani were known to Canada to object to European incursion into the land west of the Rocky Mountains (para. 170)
- While the Arctic-Pacific or continental divide intersects with the 60th parallel as required by the metes and bounds description of the treaty, the Rocky Mountains do not (paras. 15-16, 149, 152-153)
- Accordingly, the western boundary of Treaty No. 8 is the height of land along the continental divide between the Arctic and Pacific watersheds (paras. 4, 173)
There are a few legal nuggets too. The court is clear that the Crown in its provincial aspect may not have signed the treaty but is a party to the treaty all the same (para. 9). This affirms that the provincial government is as bound by Treaty No. 8 as the federal government. Also, the entire course of post-treaty conduct may be considered as evidence of intention, so long as it is consistent (para. 10).
Why This Case Matters
This decision demonstrates that historical and legal context matters when reading old statutes and boundary descriptions. One cannot simply take an interpretative approach devoid of such context or grounded in how language may be presently understood. History is important. Geography is important. What a people remember about themselves is important.
More significantly, this decision demonstrates that Indigenous people do not have to submit to inexplicable or arbitrary positions taken by the Crown. Indigenous people can, by standing together and pushing back, call a spade a spade. Or, in this case, call a range of mountains to be what it is – a line of watershed.
The First Nation members of the Kaska Dena Council now find themselves squarely inside Treaty No. 8 within British Columbia. So too do the intervener First Nations (Taltan Central Government, Takla Lake First Nation and Tsay Keh Dene First Nation). Whether this decision will have an effect on their respective modern treaty negotiations remains to be seen.
One thing is now certain. Treaty 8 members can step outside their house and know with certainty where they can exercise their treaty rights – all the way west up to the Arctic-Pacific divide.
Christopher Devlin, Kate Gower, Ashley Cogswell and the rest of the DGW Law team are proud, along with our friends at Rana Law, to have represented the Treaty 8 First Nations over the last twelve years and sixty days of trial in this historic case.