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When geography and the law collide

A case decided this week by the Supreme Court of British Columbia was, in essence, all about geography

  • Sep 29, 2017
  • 787 words
  • 4 minutes
One of two maps of Treaty 8 territory submitted as evidence in West Moberly First Nations Expand Image

In 1899, at Lesser Slave Lake in what is now Alberta (but was then the District of Athabasca in the Northwest Territories), Treaty 8 was signed by the Dominion of Canada and “the Cree Chief and Headmen of Lesser Slave Lake and the adjacent territory.”

Treaty 8 covers a large area of northern Alberta and smaller portions of the southern part of the Northwest Territories, northwestern Saskatchewan and northeastern B.C. Over time, many more Indigenous peoples signed onto Treaty 8, including several in northeastern B.C. This continued into the 1980s, when the McLeod Lake Indian Band north of Prince George sought to “adhere” to the Treaty. This raised the issue of what, exactly, the western boundary of the treaty area is.

That boundary is described in the treaty as following “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.” But what is the “central range” of the Rocky Mountains? This question was just settled by Supreme Court of British Columbia in a case (West Moberly First Nations v. British Columbia) that brought together the worlds of law and geography.

It pitted B.C. First Nations who are adherents to Treaty 8 against those who have traditional territory in Northeastern B.C.
but are not adherents to Treaty 8. The federal government supported the Treaty 8 nations while the B.C. government supported the nations who are not in Treaty 8.

The court began its analysis by noting that the goal of treaty interpretation is to search for the common understanding and intention of the parties to the treaty. In this case, the question was what did the parties mean, at the end of the 19th century, when they used the words “the central range of the Rocky Mountains?” 

The court stated: “What is important to the resolution of the issue presented in this case is the state of geographical understanding in the late 19th century, as it may have influenced those who drafted the metes and bounds description of the western boundary of Treaty 8.”

Answering this question involved the court in hearing evidence from no fewer than five expert witnesses in physical geography, geomorphology, cartography (including historical mapping) and exploration, not to mention testimony from several members of the various Indigenous groups involved, historians and ethnographers. Three different historical maps of the southern portion of the Northwest Territories, as it then was, appear in the judgment.

The two competing interpretations were these: First, that the western boundary of the treaty area follows what we now understand to be the Rocky Mountains, which lie to the east of the Rocky Mountain trench through which the major tributaries of the Peace River — the Finlay and the Parsnip — flow, but which peter out on the Liard Plateau, just south of the 60th parallel; second, that the western boundary follows the continental divide between the rivers that flow to the Pacific and those that flow to the Arctic.

While the continental divide and the central range of the Rockies are the same south of Prince George, north of there (at around 54 degrees latitude) the divide moves considerably to the west, running through the Cassiar mountains and continuing into the Yukon at around 130 degrees longitude. The court found that the western boundary of Treaty 8 “is the height of land along the continental divide between the Arctic and Pacific watersheds.” The court’s decision largely turned on its assessment of several historical documents and maps which persuaded it that the drafters of the treaty intended to include in Treaty 8 lands west of the Rocky Mountains. In particular, the court concluded that the phrase “central range” of the Rocky Mountains was intended to refer to a line of watershed and that it must be the main (continental) divide, not the
lesser line of watershed in the Rockies north of the 54th parallel. The court was also influenced by the fact that the Rockies do not, in fact, intersect the 60th parallel but rather come to end just short of it, on the Liard Plateau.

The West Moberly decision is a fascinating example of geography playing a central role in the outcome of an important legal issue.


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