FIRST NATIONS WIN WHAT THEY ALREADY HAD BEFORE SUIT
Court ruling opens up Rocky Mountain Trench area to future resource sharing
A lengthy and expensive trial involving one of the few treaties in B.C. has wound up after revealing much about Canada’s troubled history with Indigenous people.
Almost two dozen lawyers were on the clock and 50-odd trial days were spent over the past 12 years to determine the western boundary of Treaty 8 in the resource-rich northeast, even though the two signatories agreed it was the continental divide.
That’s what makes the case unique in the annals of treaty interpretation.
“This case is decidedly not about Aboriginal rights, title, or interests that existed before the treaty,” said B.C. Supreme Court Justice Robert Johnston, who sits in Victoria.
“It is not about what Aboriginal signatories or adherents surrendered or gave up by entering treaty. It is not about what obligations the Crown assumed when it entered the treaty, nor does it have an impact on or purport to interpret treaty provisions other than those setting out the treaty boundary.”
Even though it was not a signatory, the B.C. government sparked the litigation because as an aspect of the Crown the province was nonetheless a party to the treaty.
In the early aughts, First Nations and Victoria were discussing development and revenue sharing when the province claimed Treaty 8 ended at the “height of the Rockies” and did not cover as much of B.C. as thought.
The Treaty 8 nations said, “No, it goes all the way west to the Pacific Divide.”
B.C. essentially replied: “Well, if you want to get any development benefits from that belief, you are going to have to sue us.”
So they did — the West Moberly First Nations, Halfway River First Nation, Saulteau First Nations, Prophet River First Nation and Doig River First Nation launched litigation in 2005.
Canada supported them while the Kaska Dena First Nation backed the province and the Tsay Keh Dene, Takla Lake and Tahltan First Nations intervened because they, like the Kaska Dena, had modern land claims that depending on its western boundary, Treaty 8 would overlap.
“That’s a big travelling circus to get all the way to the end of the show, so it took us 12 years,” said Victoria lawyer Christopher Devlin, of the Treaty 8 legal team.
“It’s one of those bizarre things in law: The decision tells the plaintiffs what they already know and have known since 1899. But it now basically officially rejects the province’s argument about the treaty, how to interpret the treaty, about the intention of why the treaty was made.”
One of 11 numbered agreements signed west of Ontario between 1871 and 1921, Treaty 8 is a landmark document because it was the first after nearly a generation of stonewalling by Ottawa largely in the hope First Nations would die out.
It covers a staggering 841,487 square kilometres of what was formerly the Northwest Territories and B.C., but today includes parts of modern Alberta and Saskatchewan as well as portions of the Northwest Territories. Just a tad smaller than Venezuela.
The impetus behind the treaty was the Klondike gold rush and the discovery of other valuable resources.
The evidence indicated the government hoped to forestall violence between First Nations and incoming settlers travelling up the Peace and Finlay rivers, but also to ink a deal before the Indigenous people realized the underlying value of their land.
Documents with their “less palatable labels” for Aboriginal people, as the judge put it, exposed a fetid relationship between the government and First Nations.
Regardless, the boundary description in the treaty that referred to the Rocky Mountains was vague and the contemporaneous maps not quite Google Earth quality.
Johnston explained that what was important was the state of geographical understanding in the late 19th century “as it may have influenced those who drafted the metes and bounds” of Treaty 8.
“Both knowledge and nomenclature developed over the years,” he said. “Along the way, there have been some inconsistent understandings of what constituted the Rocky Mountains, where they were located, and their northerly extent.”
Johnston considered a wealth of sometimes puzzling mapmaking, anthropological, linguistic, ethnographic and historic research.
But he navigated his way through the morass using as a compass the testimony of First Nations who live in the vast rugged country — and who spoke for both sides.
The Indigenous people said the trails they knew and used crisscrossed the map like a spider web and there was “no red line on the ground over which they travelled.”
The division they recognized was the Pacific-Arctic watershed because on one side people captured salmon and on the other Arctic grayling.
“For the Treaty 8 First Nations, who have had a string of losses over the Site C litigation, I think this will affirm that their treaty actually does mean something,” Devlin said.
“I think for economic development in the future in the Rocky Mountain Trench — the area around Williston Lake and the Finlay River area — that area is rich in forestry, it’s rich in precious metals, gold and that sort of thing.
“When those developments occur and as they occur the Treaty 8 First Nations will be more involved in them, far more than they have been to date.”
That’s a big travelling circus to get all the way to the end of the show, so it took us 12 years.