Case information

First application: Aboriginal law — Treaty rights — Treaty interpretation — Indigenous understanding of treaty — Honour of the Crown — Judgments and orders — Declaratory judgments — Real dispute — Western boundary of Treaty 8 uncertain — In rem declaration of western boundary of Treaty 8 — Content of test to determine whether a dispute is “real” or “hypothetical” for the purposes of declaratory relief — When consideration of Indigenous intention and understanding of a treaty is irrelevant to interpretation of treaty — Whether impact of a treaty with Indigenous people upon Indigenous non signatories to the treaty engages the honour of the Crown — Whether honour of Crown always relevant and timely in treaty interpretation — Whether impact on treaty and non-treaty holders of s. 35 rights should be considered as part of honour of Crown — Whether it is appropriate for court to consider treaty provisions in isolation — Whether other provisions and impact of interpretation on the honour of the Crown are relevant to interpretation.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Treaty 8, signed on June 21, 1899, described its boundaries. The Treaty Commissioners prepared a map to accompany Treaty 8, but it has been lost, and the location of the western boundary of the tract is, as a result, uncertain. The respondent First Nations applied for a declaration that the western boundary was the height of land along the continental divide between the Arctic and Pacific watersheds (the “wider boundary”). They named Canada and British Columbia as defendants. Canada assented to the First Nations’ position, as did the McLeod Lake Indian Band when it was added as a third defendant. British Columbia objected and applied for a declaration that the phrase referred to “the line of watershed within the Rocky Mountains as those mountains were understood to be situated in 1899”, referred to as the “narrow boundary”. The narrow boundary creates a tract approximately 48,000 square miles smaller than the wider boundary.

Of the many pre trial rulings made by the trial judge, two remain relevant. First, it was determined that, if a declaration was granted, it would be both in fact and in rem, such that it would bind parties and non parties alike: Willson v. British Columbia (Attorney General), 2007 BCSC 1324. The First Nations were, therefore, ordered to give notice to all of the signatories and adherents to Treaty 8 that a declaration, if granted, would be binding in rem and binding on them. Second, in the face of two motions to strike the Notice of Claim on the grounds that it related to a hypothetical dispute and to strike the claim for declaratory relief were dismissed: Willson v. British Columbia, 2012 BCSC 1256.

In his final decision on the matter, the trial judge declared in rem that the western boundary of Treaty 8 is the height of the land along the continental divide between the Arctic and Pacific watersheds (the Arctic Pacific divide). The Court of Appeal dismissed the appeal.