BC Court Of Appeal Affirms The Western Boundary Of Treaty 8 Is The Arctic-Pacific Divide

• Published date: 05 June 2020
• Author: Ms Bridget Gilbride and Niall Rand
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Fasken

Indigenous Bulletin

On May 19, 2020, in a split decision, the Court of Appeal affirmed the lower court decision regarding the location of the western boundary of Treaty 8, finding it is the height of land along the Arctic-Pacific Divide, and not the more easterly boundary of the height of the Rocky Mountains asserted by British Columbia and a number of non-Treaty 8 First Nations (West Moberly First Nations v. British Columbia, 2020 BCCA 138).

The decision rules on a long-standing dispute between Canada and the province as to the location of the boundary. The Court affirmed the view shared by Canada and a number of Treaty 8 First Nations that Treaty 8 includes approximately 48,000 square miles west of the Rocky Mountains in north-central British Columbia, which BC and a number of other First Nations asserted were not within the Treaty territory.

The decision also comments at length on treaty interpretation and the law of declaratory relief.

Background

Treaty 8 is one of eleven numbered treaties in Canada, described by the Supreme Court of Canada as "one of the most important of the post-Confederation treaties". It was entered into in 1899 in order to open up the west for settlement and access during the Klondike gold rush. It covers land in northeastern British Columbia, northern Alberta, northwestern Saskatchewan and southern Northwest Territories. A total of 39 First Nations have signed or adhered to Treaty 8, including eight in British Columbia.

Treaty 8 describes the location of the western boundary as "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".

Since at least as early as 1909, the location of the western boundary of the Treaty 8 lands, and specifically what is meant by the "central range of the Rocky Mountains", has been in dispute. This is, in part, due to an apparent discrepancy between the map (below) attached to Order in Council 2749 (1898) and the wording of the Treaty.

BC and three non-Treaty 8 First Nations with claims to the disputed territory argued at trial that the "central range of the Rocky Mountains" refers to the height of the Rocky Mountains, whereas Canada and the Treaty 8 First Nations asserted the boundary is the more westerly Arctic-Pacific Divide (or watershed). The two competing boundaries are shown on the following map, taken from BC's Response to Civil Claim and included as Appendix D to the BC Court of...