West Moberly First Nations v. British Columbia, 2020 BCCA 138
Summary
A majority of the BC Court of Appeal has affirmed that the western boundary of Treaty No. 8 lies along the Arctic-Pacific divide. The court dismissed British Columbia’s appeal and upheld the BC Supreme Court’s declaration, which clarifies the meaning of a critical phrase in the Treaty and provides certainty and accountability regarding the geographic aspect of a complex, constitutionally protected relationship.
Majority reasons
The majority decision, written by Chief Justice Bauman and concurred by Justice Goepel, found that it was within the trial judge’s discretion to issue a declaration in this case. It is without question that a real and legal dispute has existed between the parties for over 100 years. The majority confirmed there is practical utility in removing Treaty 8 First Nations from a state of uncertainty that has obvious negative consequences for attempts to enforce their Treaty rights. The court confirmed that Indigenous groups are not required to litigate the full scope and effect a requested declaration may have on Aboriginal rights in order for the declaration to be available.
The majority rejected BC’s arguments that the trial judge had erred in law by failing to consider certain principles of treaty interpretation. It was evident from his reasons that the trial judge was familiar with the entire text of the Treaty and considered the metes and bounds clause in the context of the Treaty as a whole as well as in relation to other relevant evidence. The trial judge did not err when he considered the intention of Indigenous parties to the Treaty and determined it was not ultimately relevant to the interpretive request these same parties had made of the court. Further, the trial judge’s reference to modern geographic evidence was not inconsistent with the principles of treaty interpretation.
The majority also rejected BC’s position that the trial judge had committed palpable and overriding errors of fact. The trial judge appropriately exercised his fact-finding role by drawing the inferences he found most compelling and best supported by the evidence. In litigation of this scale, which the trial judge had managed and tried over the course of eleven years, it is inevitable that some evidence will be left unaddressed. This is not in itself a reversible error and the trial judge’s conclusions were owed significant deference.
British Columbia’s appeal was accordingly dismissed.
Dissenting Reasons
Justice Smith disagreed with the majority and would have allowed the appeal. In her view, there was no practical utility to the declaration because it did not address or determine the relationship between the tract of land at issue and the substantive rights under the Treaty. Without knowing the consequences of the declaration on Aboriginal rights, particularly with respect to the honour of the Crown, no declaration should have been granted in her view.
Even if a declaration had been available, Justice Smith nevertheless would have allowed the appeal on the basis that the only possible interpretation of the boundary clause was that it lies east of the Arctic-Pacific divide. According to Smith J., the trial judge erred by failing to consider the text of the clause before turning to the extrinsic evidence, failing to consider the intentions and interests of the Indigenous signatories and improperly relying on modern geographical knowledge of the area.
Treaty Interpretation and the Honour of the Crown
A number of Indigenous groups intervened on the appeal and argued that the honour of the Crown was a relevant interpretive principle to apply when making factual findings regarding Canada’s intentions in entering into historical treaties. Justice Smith agreed with them in her dissenting reasons and found that the honour of the Crown imposed obligations of notification, disclosure and consultation on the Crown that are relevant to the question of where and with whom the Treaty commissioners intended to treat in the 1890s.
The majority rejected this argument: “The honour of the Crown is not applied to rewrite history” (para. 416). The historical reality is that the Crown has not always dealt honourably with Indigenous peoples and the interpretive principle of the honour of the Crown cannot be used to retroactively alter Treaty promises that were actually made. To apply the honour of the Crown in this manner would itself allow Canada to dishonourably shirk its duties and responsibilities. The court held that the question whether the honour of the Crown was upheld would have to await future proceedings seeking to define the extent of the First Nations’ rights under the Treaty.
Why This Case Matters
This decision affirms the ability of Treaty First Nations to ask the court for clarity about aspects of their historic Treaties with the Crown. Doing so provides an opportunity for subsequent disputes to be resolved outside the litigation process. As the Chief Justice wrote: “It opens the door to a less acrimonious relationship between the parties, rather than mandating larger-scale litigation” (para. 355).
The decision also provides clarity for the Crown and for non-Treaty First Nations with claimed traditional territories within the Treaty 8 area who may be negotiating or litigating their section 35(1) claims.
Treaty No. 8 envisioned an ongoing process of reconciliation between the Crown and the Indigenous peoples that entered and adhered to it. After fifteen years of litigation on this issue, perhaps it is time for the Province to pursue a less acrimonious relationship.
