B.C. Court of Appeal upholds lower court decision on western boundary of Treaty 8

Several first nations believe the western boundary was and always has been at the Rocky Mountains

B.C. Court of Appeal in Vancouver. (Photo: Tom Zytaruk)

A First Nation serving as an intervenor in a long-running dispute of a land boundary interpretation regarding a 121-year-old treaty is expressing disappointment following a recent B.C. Court of Appeal ruling.

Separating the Pacific Ocean watershed from drainage flowing towards the Arctic, the Arctic Pacific Divide runs through the middle of Nak’azdli Whut’en territory which was upheld as the western boundary of Treaty 8 by the court in a divided decision on Tuesday, May 19.

“With them stating that the western boundary is the Arctic Pacific Divide it infringes heavily into our territory,” said Chief Alexander McKinnon.

”The Treaty 8 Nations may now more than before either try to exercise their rights in our territory or have the Crown acknowledge that they have the right to do so. Treaty 8 rights, we don’t believe exist in our territory, and we intend to do everything possible to protect our land and our way of life.”

Treaty 8 is one of eleven ‘numbered treaties’ Canada entered into with Indigenous groups throughout the country between 1871 and 1921. It was signed on June 21, 1899 in the District of Athabasca which encompassed what is now northern Alberta and northwestern Saskatchewan.

At the heart of the appeal was text of the treaty which described the western boundary of a tract of land in northeastern B.C. as “the central range of the Rocky Mountains…to the point where it intersects the 60th parallel of north latitude.”

In 2005, the West Moberly First Nations, Halfway River First Nation, Saulteau First Nations, Prophet River First Nation, and Doig River First Nation commenced litigation arguing the western boundary of the tract of land described in the Treaty referred to the height of land (the ‘Arctic-Pacific Divide”) along the continental divide between the Arctic and Pacific watersheds (the wider boundary).

The Court of Appeal noted the interest of the respondent First Nations in obtaining declaration stems from the position that the Treaty gives them hunting, trapping, and fishing rights through the tract defined in the metes and bounds clause.

Applications to strike the claim were dismissed, and after 61 days of hearing the trial ended on November 25, 2016 with the judge declaring “the said range [“the central range of the Rocky Mountain”] in the metes and bounds description of Treaty 8 refers to the Arctic Pacific Divide or watershed, and not to a range or lesser watershed within what we now call the Rocky Mountains.”

The Fort Nelson First Nation was one of the original plaintiffs but withdrew from action on June 11, 2009.

An appeal was launched by the Province with the support of the Kaska Dena who inhabit territory that lies west of the Rocky Mountains and did not adhere to the treaty or sign the treaty, and the McLeod Lake Indian Band.

First Nations that live in the disputed territory including Tahltan Central Government, Tsay Keh Dene First Nation, Takla Lake First Nation and Nak’azdli First Nation were granted intervenor status.

“Nak’azdli Whut’en has been utilizing the lands to sustain their way of life since the beginning of time,” McKinnon said noting he would like to see the western boundary of Treaty 8 reinstated to its original description.

“Our families have been stewards of these lands for generations and taking care of it so it lasts future generations, and it’s very disappointing now after all of that that the Treaty 8 Nations are going to exercise those rights. They don’t have a legal obligation to abide by our stewardship leads.”

As an intervenor, Nak’azdli Whut’ten does not have the right to appeal the decision to the Supreme Court of Canada, McKinnon added.

He said they are carefully watching what the main parties will do and plan to consider all options including participating in any appeal to the Supreme Court.

“The ruling only came down late Tuesday, so I think everybody is just getting prepared to see what their next steps will be.”

The Province is currently reviewing the reasons given by the court, and said it is too early to make any further comment.


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