The Supreme Court of Canada has denied leave to appeal a ruling on the western boundary of Treaty 8, bringing a 16-year legal fight to an end.
The decision confirms the western boundary of the treaty as the Arctic-Pacific Divide, first affirmed by the BC Supreme Court ruling in 2017 and then the BC Court of Appeal last year.
"There's no longer any legal question as to where the western boundary of the treaty lies," said Christopher Devlin of DGW Law Corporation, who has been counsel on the case for Treaty 8 First Nations since 2005.
History was made today as the Supreme Court of Canada put to rest -once and for all- the location of the western...Posted by DGW Law Corporation on Thursday, January 21, 2021
Treaty 8 was first signed in 1899, and covers much of northeast B.C., along with portions of northwest Alberta and the Northwest Territories. Where the treaty boundary ends determines the signatories' rights to hunt and fish.
In 2005, the West Moberly, Halfway River, Saulteau, Prophet River, and Doig River first nations sought a court declaration affirming the western boundary along the Arctic-Pacific watershed.
The province of B.C. as well as a number of intervening First Nations claimed the boundary was the central range of the Rocky Mountains.
At the heart of the dispute, and with it more than 100,000 square kilometres of territory, was the oldest known and most widely used treaty map (above), and the treaty text.
The map dates back to 1900, and was drafted by Indian Affairs Department inspector James Macrae, who was sent to the region to obtain the adhesion and signings of indigenous groups missed in 1899.
The map was published in 1901 in the annual reports of the department, and has been the map Canada has relied on ever since because a map from treaty commissioners in 1899 has been lost to history.
The language used in the treaty refers to the central range of the Rocky Mountains, until it crosses the 60th parallel between B.C. and the Yukon. Devlin said the 'central range' language was carried over from Treaties 6 and 7, signed in the 1870s.
"If you follow the central range of the Rocky Mountains, literally you run out of mountains and you don’t get to the 60th parallel," Devlin said. "When you look at map though it's pretty clear that what they wanted cover was all of the lands that drained into the Arctic Ocean, because culturally there was a big difference between the indigenous peoples whose lands drain in the Arctic Ocean as opposed to the indigenous peoples whose lands drain into the Pacific Ocean."
Though the Arctic-Pacific Divide was a known feature in those days, it wasn't used in the text of the treaty, Devlin said.
"That's where the discrepancy arose, and that resulted in 16 years of litigation: did they mean Arctic-Pacific Divide, or did they mean the Rocky Mountains and then just do your best on the bumps in the landscape until you get up to the 60th parallel?" he said.
Devlin said the province didn’t contest the boundary until the late 1980s when McLeod Lake sought to adhere to the treaty. Both the province and Canada were resistant. McLeod Lake brought forward a lawsuit that claimed it was within the treaty territory and had the right to join, he said.
“It was when B.C. realized, well, if we say that McLeod Lake lies outside of Treaty 8, then that would be a defence to their lawsuit. So B.C. did this switcheroo,” he said.
McLeod Lake was added to the treaty in 2000.
Read more: Western Boundary of Treaty No. 8
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[Eds. note: Article updates and corrects to note the Supreme Court of Canada has dismissed leave to appeal applications by British Columbia and McLeod Lake Indian Band.]