On February 11, 2022, Justice Grist of the Specific Claims Tribunal (the Tribunal) issued a decision interpreting the Fort Rupert Treaties of 1851 (the Treaties), which concern 37 square kilometres of land on the northeast coast of Vancouver Island including a site known as Suquash. The main question at the hearing was whether Suquash had been a village site that should have been reserved for Kwakiutl’s predecessors – the Kwagulth and Kweeha First Nations – under the Treaties. The Tribunal held that the common intention of the Treaty partners had been to reserve village sites and enclosed fields within the 37 square kilometres covered by the Treaties for the use and benefit of the Kwagulth and Kweeha, but that the evidence did not establish that Suquash had been a village site. Therefore, the Tribunal held that the Treaty partners had not intended to reserve Suquash.
Background on this Specific Claim
Suquash is a site on the northeast coast of Vancouver Island where predecessors of the Kwakiutl (Kwakiutl First Nation or Claimant) produced coal for trade to the Hudson’s Bay Company (HBC). In the first part of the nineteenth century, the HBC was as an agent of the Imperial Crown. As such, the HBC was tasked with advancing settlement and, to a limited extent, making treaties with Indigenous peoples on Vancouver Island.
The evidence before the Tribunal included that prior to the arrival of the HBC, Suquash was used by the Kwakiutl for other purposes. Suquash was a traditional name, in the Kwakwala language, meaning a place for hunting seals. The evidence indicated that when the tide was low, Kwakiutl people also engaged in clam digging and harvesting seaweed at Suquash. It was noted by a Kwakiutl elder that Suquash was a 45-minute canoe ride from Cluxewe, an ancestral village at the mouth of the Cluxewe River.
The evidence indicated that there were coal beds laying over a one-mile stretch in and around Suquash within the intertidal zone, and a deposit of coal laid bare by a stream (Suquash Creek) extending three-quarters of a mile back from the beach. The HBC required the coal to fuel their ships, and they employed people from the Kwagulth and Kweeha First Nations living at and around Fort Rupert to provide it. At the time when Fort Rupert was established by the HBC in 1849, the HBC recommended that the coalfields on the northeast coast of Vancouver Island be purchased from the First Nations near Fort Rupert.
The Tribunal observed that the historical record contains few details regarding negotiations leading up to the signing of the Treaties. According to the text of the Treaties, the Kwagulth and Kweeha relinquished control of 37 square kilometres of land on the northeast coast of Vancouver Island between present-day Port Hardy and Port McNeill to the HBC in exchange for compensation, but kept their village sites and enclosed fields for their continued use. The HBC promised in the Treaties to survey those village sites and enclosed fields at a later date. This was never done.
The specific claim asserted that Suquash was a village site that should have been reserved for the use of Kwakiutl under the terms of the Treaties. Kwakiutl claimed that the Crown had breached its fiduciary obligations by failing to survey and reserve Suquash, which resulted in the unlawful disposition of Suquash. Kwakiutl further argued that the Crown had failed to protect Suquash from alienation by failing to challenge provincial land grants and by failing to repurchase Suquash when the opportunity arose. In the alternative, Kwakiutl claimed that if Suquash was not reserved by operation of law under the Fort Rupert Treaties, then the failure to subsequently survey and set aside Suquash was a breach of a Crown legal obligation to provide lands (village sites and enclosed fields) under the Treaties.
Canada said the location at Suquash was not a village site or enclosed field, nor should the language of the Treaties be interpreted so as to “keep” Suquash from the transfer of lands under the Treaties. Canada argued the intention of the parties to the Treaties was that the Treaties would transfer to the HBC the Treaty area, including Suquash, which the HBC wanted for its coal deposits.
The Specific Claim Tribunal’s Decision
The issue before the Tribunal was whether it was intended by the parties to the Treaties that Suquash be included in the meaning of the phrase “village site or enclosed field” in 1851, when the Treaties were signed. The Tribunal’s task was to review the Treaties, consider the historical and cultural context, and determine the common intention of the Treaty parties at the time of signing. If there were several possible interpretations of the Treaties, the Tribunal had to choose the interpretation of the common intention that would best reconcile the parties’ interests. The Tribunal focused on the definition of “village site” to determine the intentions of the Parties.
To interpret the Treaties, the Tribunal considered written historical documents, ethnographic evidence, archaeological evidence, and legal precedent. Based on this record, the Tribunal concluded that there was insufficient archaeological evidence of long term Kwagulth or Kweeha occupation at Suquash for it to qualify as a “village site”, nor was there recognition of Suquash as a village in the scholarly accounts regarding First Nations in the area. The Tribunal found that,
What Suquash was, was the only site that had produced commercial quantities of coal, and viewed in this light, it seems most probable that Suquash was considered by both parties to be coal land to be tranferred under the terms of the Fort Rupert Treaties. That was what the HBC would have made clear they wanted to acquire, and what the First Nations would have known the HBC was trying to secure in return for the treaty price.
The Tribunal was persuaded by the fact that the First Nations parties to the Treaties were forceful in their assertion of ownership and control of their lands and allowed no one else to mine coal at Suquash before the Fort Rupert Treaties were negotiated. After the Treaties were signed, however, the Tribunal observed that the Kwagulth and Kweeha did not assert ownership over Suquash and allowed the HBC to bring in miners from outside the community to sink mine shafts in an effort to develop the coal fields. The Tribunal concluded that the effect of the Treaties was to change the understanding of the status of Suquash in the minds of the parties.
The Tribunal concluded that Kwakiutl had failed to establish that it was the common intention of the parties to the Treaties that Suquash was to be excluded from the transfer to the HBC under the phrase “village site and enclosed fields,” and that the common intention was to include the site in the transfer. The Tribunal further concluded that neither the Crown nor the Dominion of Canada was under a treaty obligation to have the site recognized as a reserve or otherwise designated for the use of Kwakiutl. Finally, the Tribunal found that neither the Imperial Crown nor the Dominion of Canada was in breach of a fiduciary obligation for the non-allocation of Suquash as a reserve and accordingly rejected the Claim advanced in this case.
Comments on Kwakiutl v Canada 2022 SCTC 1
This decision highlights the importance of both the historical record and the actions of the parties in treaty interpretation cases. The Tribunal relied on both the historical record and the actions of the parties immediately following the signing of the Treaty to better understand the intention of the parties when they concluded the Treaties. We note that in Restoule v Canada, a treaty interpretation case, which, at the time of writing is on appeal to the Supreme Court of Canada, the Ontario Superior Court relied on Anishinaabe laws, among other evidence, to interpret the mutual intention of the parties at the time of treaty negotiation. We anticipate that the decision of the Supreme Court of Canada in that case will be helpful in clarifying the role of Indigenous Laws when interpreting treaties and other Crown promises, which may affect how issues of this nature are decided in future cases.
 Restoule v. Canada (Attorney General), 2018 ONSC 7701, largely upheld and affirmed in Restoule v. Canada (Attorney General), 2021 ONCA 779.