Normally, the federal and provincial Crown are of a similar mind in legal cases involving Indigenous issues.
But in an unusual case in B.C. Supreme Court, the federal Crown and the provincial Crown didn't see eye-to-eye in a dispute over the western boundary of Treaty 8.
The treaty was signed in 1899 at Lesser Slave Lake with Indigenous people to address land claims in northern Alberta, northeastern B.C., northwestern Saskatchewan, and a southwest section of the Northwest Territories.
This week, Justice Robert Johnston issued a ruling in B.C. Supreme Court declaring that the treaty's western boundary "is the height of land along the continental divide between the Arctic and Pacific watersheds".
He referred to this as the Arctic-Pacific divide.
This came after the West Moberly, Halfway River, Salteau, Prophet River, and Doig River First Nations filed court documents alleging that the western boundary north of the 54th parallel coincides with this Arctic-Pacific divide.
The B.C. government and the Kaska Dena Council argued that the treaty's westernmost border was "some distance to the east of the Arctic-Pacific divide", running along the Rocky Mountains.
The province and the Kaska Dena were supported by Tsay Keh Dene and Talka Lake First Nations, as well as the Tahltan Central Government.
The Indigenous organizations that supported the B.C. government are not Treaty 8 nations.
"This case is unusual within the body of decisions on treaty interpretation," wrote Johnston in his ruling, "here, a federal Crown (a signatory to the treaty), a defendant, agrees with the aboriginal adherents who are the plaintiffs in this trial as to the location of the western boundary of Treaty 8."
The provincial Crown, which was not a signatory to the treaty, had a different view.
"This case is decidedly not about aboriginal rights, title, or interests that existed before the treaty. It is not about what aboriginal signatories or adherents surrendered or gave up by entering treaty," Johnston stated. "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."
His ruling noted that in 1910, the then chief accountant of the Department of Indian Affairs, Duncan Campbell Scott, wrote that "a map of the kind in question does not carry with it any authority as fixing the limits of the Treaty and it therefore has no real importance".
"The Province is not bound by any land provisions in a Treaty negotiated by the Dominion Government without their concurrence and we must sooner or later face the difficulties which our own action has created," Scott added.
It's worth noting that Scott is one of the more notorious figures in Canadian history for his role in pushing for the cultural genocide of Indigenous peoples through his relentless promotion of the residential school system.
Johnston's recent decision pointed out that Scott had maintained that Fort Grahame on the Finlay River west of the Rocky Mountains was covered by Treaty 8.
The B.C. government cited a map published in 1912, the so-called "White map" by James White, which showed the western boundary following the Rocky Mountains to the 60th parallel.
The ruling offers insights into other interpretations of the treaty that existed in the early 20th century, as well as the difficulties that government officials had in determining which Indigenous groups were occupying certain lands.
"Ethnography was not an organized field of academic or scientific endeavour in the late nineteenth century; indeed, anthropology, of which ethnography is an offshoot, was in its infancy," Johnston wrote. "Knowledge of the inhabitants of northern British Columbia came from the observations of explorers such as Alexander MacKenzie and Simon Fraser."
The most extensive analysis by a settler in that era came from a priest, Father A.G. Morice, who spread Christianity in Carrier and Sekani territory from 1885 to 1904.
"He described the Sekani as highly nomadic, with leadership determined by capability rather than hierarchy or hereditary," the ruling stated. "How much of Father Morice's observations would have been available to the treaty commissioners in 1899 is not entirely clear. For that reason, the opinions of ethnography and linguistics experts tendered at trial are of limited assistance in determining the extent of knowledge of the treaty commissioners or those instructing them, or divining their intent."
Johnston acknowledged that he attached more importance to the evidence submitted by members of various aboriginal organizations. In this part of the decision, several elders and leaders are cited describing the extent of traditional territories and the contact that existed between First Nations in the past.
"I do not accept that in 1899 there existed either a notional or a real boundary between the Beaver and Sekani as represented by the Rocky Mountains," Johnston stated. "Instead, I find that the territorial limits of the Beaver to the east and Sekani to the west were fluid, or flexible, with individuals and family groups travelling back and forth across the mountains at will, to hunt and trade."