Western Boundary of Treaty No. 8
West Moberly First Nations et al. v. British Columbia et al
2017 BCSC 1700, affirmed 2020 BCCA 138, leave to appeal denied January 21, 2021, SCC #39292
After almost 16 years of litigation, the location of the western boundary of Treaty No. 8 has been affirmed in law where the signatories to the Treaty – the Treaty 8 First Nations and Canada – have always known it to be: along the height of land that divides the Pacific watershed from the Arctic watershed (the “Arctic-Pacific divide”). The province of British Columbia asserted the western boundary was located further to the east, a difference of over 100,000 square kilometres of territory. The Treaty 8 First Nations sought a court declaration to settle the dispute about their historic treaty from 1899.
Before trial, the Kaska Dena Council applied to be added as a defendant, supporting the interpretation advanced by British Columbia. The McLeod Lake Indian Band also applied to be added as a defendant but in support of the understanding of the Treaty 8 First Nations and Canada. At trial, three First Nations – Takla Lake First Nation, Tsay Key Dene First Nation and the Talhtan Central Government – applied to be added as interveners, all in support of British Columbia’s interpretation.
The British Columbia Supreme Court heard 60 days of evidence and argument over a three-year period. The trial judge rejected British Columbia’s interpretation and issued a declaration affirming that the western boundary of Treaty No. 8 ran along Arctic-Pacific divide.
British Columbia appealed the trial decision. On the appeal, McLeod Lake switched sides to support the province’s appeal. A fourth First Nation – Nak’azdli First Nation – intervened to support the province’s appeal as well.
The BC Court of Appeal dismissed the province’s appeal. The majority affirmed that the western boundary of Treaty No. 8 lies along the Arctic-Pacific divide. In upholding the BC Supreme Court’s declaration, the majority clarified the meaning of a critical phrase in the Treaty and provided certainty and accountability regarding the geographic aspect of a complex, constitutionally protected relationship.
British Columbia and McLeod Lake sought leave to appeal to the Supreme Court of Canada. On January 21, 2021, the Supreme Court of Canada dismissed their leave to appeal applications, finally bringing the litigation to an end. As is the custom of the Supreme Court, no written reasons were given for the decision.
Key Legal Findings
The majority decision of the BC Court of Appeal, written by Chief Justice Bauman and concurred in 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. 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 British Columbia’s arguments (and those of the interveners) 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 British Columbia’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.
Dissenting Reasons
However, one justice on the BC Court of Appeal dissented and would have allowed British Columbia’s appeal. In the view of Justice Smith, 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
Two First Nation respondents and four First Nation interveners supported British Columbia’s appeal, arguing the honour of the Crown ought to apply retrospectively to overwrite factual findings regarding Canada’s original intentions in entering into historical treaties. Justice Smith agreed with them in her dissenting reasons. She 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”. 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 in the making of Treaty No. 8 would have to await future proceedings seeking to define the extent of the First Nations’ rights under the Treaty.
Lingering Issues
Managing Conflict between Treaty Rights and Aboriginal Rights
While the BC Court of Appeal did not address this issue specifically in the Western Boundary case, it did invoke the honour of the Crown in another case decided in 2020 to manage competing rights between treaty rights holders and Indigenous groups claiming asserted but unproven Aboriginal rights in Gamlaxyeltxw v. British Columbia, 2020 BCCA 215.
In Gamlaxyeltxw, the Crown was aware of a credible claim of asserted but unproven Aboriginal rights and title by a First Nation which may have been adversely affected by certain wildlife harvesting measures within the Nisgaa’ Treaty between Nisga’a Nation, Canada and British Columbia. The BC Court of Appeal held that a duty to consult arising from the honour of the Crown was owed to the Indigenous claimant but the accommodation measures sought by the claimant were a different matter. The Crown could not be required to breach the modern treaty in order to preserve the asserted rights whose scope had not yet been determined. That would have been dishonourable.
This reasoning may apply equally in the case of existing Treaty rights under Treaty No. 8 and credible but unproven Aboriginal rights of non-signatory Indigenous groups within the Treaty 8 territory. The Crown likely will have consultation obligations to all but those obligations cannot be construed to require the Crown to breach Treaty No. 8 in favour of those asserted but unproven Aboriginal claims. That would not uphold the honour of the Crown.
Importing “Traditional Territory” into Treaty Territory
The BC Court of Appeal held that the scope of where a particular Treaty 8 First Nation may exercise the rights conferred by Treaty No. 8 within the Treaty territory has yet to have a definitive resolution as a matter of law. As a result, there may be lingering effects on consultation issues within Treaty 8 territory, especially where there are overlapping claims of Aboriginal title and rights.
By leaving that issue open-ended, the court created space for non-signatory First Nations to push back against any efforts by the Crown to consult Treaty signatory First Nations on matters pertaining to treaty territory also subject to claims of Aboriginal title and rights.
Intention of Original Indigenous signatories
The BC Court of Appeal placed quite a bit of emphasis on the intentions of the original Indigenous signatories to the Treaty when interpreting a treaty provision to determine the common intention of the parties. This is usually not an issue but for Treaty No. 8, many of the present-day beneficiaries are descended not from original signatories but rather from adherents who joined the Treaty after it was made.
The court’s emphasis on intention of original signatories is difficult to reconcile, from a Treaty interpretation perspective, with the majority’s nuanced finding that the scope of the Treaty harvesting rights may be dependent on evidence of where particular Indigenous signatories or adherents exercised traditional practices and customs before the Treaty. If the traditional territories of each signatory and adherent First Nation are relevant to the scope of the harvesting rights conferred by the Treaty, how can the intentions of the adherent First Nations not also be relevant?
Why This Case Matters
Regardless of the lingering issues identified above, the Western Boundary case 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 of British Columbia wrote: “It opens the door to a less acrimonious relationship between the parties, rather than mandating larger-scale litigation”.
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 sixteen years of litigation on this issue, it is time for British Columbia to pursue a less acrimonious relationship.