FILE NO.: SCT-7001-17  
CITATION: 2022 SCTC 1  
DATE: 20220211  
SPECIFIC CLAIMS TRIBUNAL  
TRIBUNAL DES REVENDICATIONS PARTICULIÈRES  
BETWEEN:  
KWAKIUTL  
Christopher Devlin, Tanner Doerges and  
Kajia Eidse-Rempel, for the Claimant  
Claimant  
– and –  
HER MAJESTY THE QUEEN IN RIGHT  
OF CANADA  
As represented by the Minister of Crown-  
Indigenous Relations  
James Mackenzie, Deborah McIntosh and  
Chase Blair, for the Respondent  
Respondent  
HEARD: November 24–27, 2020,  
November 30–December 3, 2020, and  
February 16–18, 2021  
REASONS FOR DECISION  
Honourable William Grist  
NOTE: This document is subject to editorial revision before its reproduction in final form.  
Cases Cited:  
R v Marshall, [1999] 3 SCR 456, 177 DLR (4th) 513; Ross River Dena Council Band v  
Canada, 2002 SCC 54, [2002] 2 SCR 816; Williams Lake Indian Band v Canada  
(Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 SCR 83; Chartrand  
v British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345,  
77 BCLR (5th) 26; Kwakiutl First Nation v British Columbia (District Manager, North  
Island Central Coast Forest District), 2013 BCSC 1068, [2014] 4 WWR 150; Komoyue  
Heritage Society v British Columbia (AG), 2006 BCSC 1517, 2006 CarswellBC 2514; R v  
Hunt, [1995] 3 CNLR 135, 1995 CarswellBC 2508 (BC Prov Ct); R v White, 50 DLR (2d)  
613, 1964 CarswellBC 212; R v Bartleman (1984), 12 DLR (4th) 73, 55 BCLR 78; R v  
Morris, 2006 SCC 59, [2006] 2 SCR 915.  
Statutes and Regulations Cited:  
Specific Claims Tribunal Act, SC 2008, c 22, s 14.  
British Columbia Terms of Union, RSC 1985, App II, No 10, a 13.  
Authors Cited:  
The Concise Oxford Dictionary of Current English, 8th ed, sub verbo “village”.  
Robert Galois, Kwakwaka’wakw Settlements, 1775-1920: A Geographical Analysis and  
Gazetteer (Vancouver: UBC Press, 1994).  
Franz Boas, The Kwakiutl of Vancouver Island (Leiden & New York: E. J. Brill & G. E.  
Strechert & Co, 1909).  
Franz Boas, Geographical Names of the Kwakiutl Indians (New York: AMS Press, 1969).  
Headnote:  
Aboriginal Law – Specific Claim – Treaty Interpretation – Fiduciary Duty  
2
Suquash is a site on the northeast coast of Vancouver Island where predecessors of the  
Claimant, Kwakiutl (Kwakiutl First Nation), produced coal for trade to the Hudson’s Bay  
Company (HBC or the Company). This Claim asserts that Suquash should have been reserved for  
the use of the Claimant under the terms of the two 1851 Fort Rupert Treaties (the Treaties).  
Under the Fort Rupert Treaties, the Kwagulth and the Kweeha First Nations, predecessors  
to the Kwakiutl First Nation, relinquished their control of 37 kilometres of land along the northeast  
shore of Vancouver Island to the HBC extending southeast from Hardy Bay (now the site of Port  
Hardy, British Columbia) to MacNeill’s Harbour (now Port McNeill, British Columbia).  
The Kwakiutl First Nation claims that the Respondent (Canada) breached its legal  
obligations following the making of the Treaties, resulting in the loss of Suquash, a location 13  
kilometres south of the then HBC Fort, Fort Rupert.  
The main issue is 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 Claimant says the parties to the Treaties intended to reserve Suquash for the Kwagulth  
and Kweeha First Nations’ “continued exclusive use and occupation” (Claimant’s Memorandum  
of Fact and Law at para 110).  
Canada argues that Suquash was not a village site or enclosed field and therefore Suquash  
was not excluded from the land transferred to the Company under the Treaties. Canada says that  
the intention of the parties was that the Treaties would transfer Suquash to the Company, as part  
of the coal lands transfer.  
The Tribunal held that the Claimant failed to establish that it was the common intention of  
the parties to the Treaties that Suquash was to be excluded from the transfer under the phrase  
“village sites and enclosed fields” in the Fort Rupert Treaties and that the common intention was  
to include the site in the transfer.  
3
Fort Rupert was constructed by the HBC in 1849–1850, for two reasons: (1) to secure coal  
deposits the HBC had first learned of in 1835 from Indigenous traders and (2) to continue the fur  
trade with First Nations in the area.  
There is no historical record of the discussions leading to the Treaties.  
The case law is clear in recognizing that the agreements referred to by the parties as the  
Fort Rupert Treaties are indeed Indigenous treaties, and that they are to be interpreted in  
accordance with the case law regarding interpretation of Indigenous treaties (R v White, 50 DLR  
(2d) 613, 1964 CarswellBC 212; R v Bartleman (1984), 12 DLR (4th) 73, 55 BCLR 78; R v Morris,  
2006 SCC 59, [2006] 2 SCR 915).  
In R v Marshall, [1999] 3 SCR 456 at para 14, 177 DLR (4th) 513, the Supreme Court of  
Canada held that, in interpreting treaties, courts “must take into account the context in which  
treaties were negotiated, concluded and committed to writing” (emphasis in original). Further, the  
Court must “choose from among the various possible interpretations of the common intention ...  
the one which best reconciles” the interests of the First Nation and those of the Crown (emphasis  
in original).  
Under the Treaties, “village sites and Enclosed fields” were to be “kept” by the First  
Nations. The Claimant argued that the “most likely common understanding of both parties … of  
the term ‘village sites and Enclosed fields’” to be “kept” by the First Nations when the Fort Rupert  
Treaties were signed in 1851, was that it included “the continued exclusive use and occupation of  
Suquash by the Kwakiutl tribes” (Claimant’s Memorandum of Fact and Law at para 110).  
In the mid 1800s, First Nations villages in the region were not continually occupied by the  
First Nations. The expert evidence shows that the Kwagulth and Kweeha engaged in seasonal  
rounds—a series of annual moves to villages for the purposes of harvesting seasonally abundant  
resources, such as eulachon runs in the spring and salmon runs in the summer and fall. Fort Rupert  
was constructed beginning in May 1849. First Nations, including the Kwagulth and Kweeha,  
moved their winter villages to the area adjoining the Fort and spent about five months during each  
of 1849 and 1850 producing coal for trade to the HBC.  
4
The Tribunal found that there was no evidence that the Fort Rupert First Nations  
constructed and used frameworks for seasonal habitations at Suquash, either as a traditional  
resource site or while they were digging coal. Suquash was 13 kilometres south of Fort Rupert.  
Entries in the Fort Rupert Journal of 1849 imply that members of the Fort Rupert First Nations  
travelled to Suquash from Fort Rupert by canoe, and subsequently returned to Fort Rupert with the  
coal.  
There is no archaeological evidence of Kwagulth or Kweeha occupation at Suquash. Nor  
is there recognition of Suquash as a village in the scholarly accounts of First Nations located in  
the area. Further, the First Nations did not independently produce any coal from Suquash after the  
Treaties were signed. The work done at the site subsequent to the Treaties was by the HBC after  
they gained control of the site through the Treaties in a continuing effort to develop a commercial  
coal deposit.  
Prior to the negotiation of the Treaties, the HBC recognized that the First Nations were  
forceful in their assertion of ownership and control of the lands. The First Nations at Fort Rupert  
were not cowed or subjugated in their relations with the largely outnumbered HBC contingent at  
the Fort and the Company was cognizant that its ability to trade with First Nations required  
continuing cooperation and good relations. The takeover of the site after the Treaties were entered  
into is persuasive evidence that the effect of the Treaties was to change the understanding of the  
status of Suquash in the minds of the parties to the Treaties. It is conduct opposed to Suquash being  
excluded from the transfer.  
5
TABLE OF CONTENTS  
I.  
PROCEDURAL HISTORY OF THE CLAIM................................................................. 8  
II. THE CLAIM ........................................................................................................................ 9  
III. RESOLUTION OF THE MANY SYNONYM REFERENCES.................................... 10  
IV. INTRODUCTION.............................................................................................................. 10  
V. BACKGROUND HISTORY............................................................................................. 12  
A. The Kwakwalla Speaking First Nations ........................................................................... 13  
B. The Hudson’s Bay Company............................................................................................ 14  
C. Fort Rupert........................................................................................................................ 16  
D. Early Production of Coal at Fort Rupert........................................................................... 22  
E. The 1850 Victoria Treaties ............................................................................................... 26  
F. Execution of the 1851 Fort Rupert Treaties...................................................................... 29  
G. The History Following the Treaties .................................................................................. 30  
VI. IN-PERSON EVIDENCE BY TWO MEMBERS OF THE KWAKIUTL FIRST  
NATION....................................................................................................................................... 32  
A. Ross Hunt Jr...................................................................................................................... 32  
B. Wata: Christine Mary Twance.......................................................................................... 32  
VII. HOW SHOULD ‘VILLAGES AND ENCLOSED FIELDS’ BE UNDERSTOOD? ... 33  
A. Treaty Interpretation ......................................................................................................... 33  
VIII.THE SPECIFIC CLAIMS TRIBUNAL ACT CLAIMS .................................................. 35  
IX. POSITIONS OF THE PARTIES ..................................................................................... 36  
A. The Claimant’s Position.................................................................................................... 37  
B. The Respondent’s Position ............................................................................................... 37  
X. RESERVE CREATION.................................................................................................... 38  
XI. JUDICIAL RECOGNITION OF THE DOUGLAS TREATIES.................................. 40  
XII. DISCUSSION..................................................................................................................... 43  
XIII.WAS SUQUASH A VILLAGE SITE BEFORE 1849? — THE ETHNOGRAPHIC  
AND ARCHAEOLOGICAL EVIDENCE ............................................................................... 47  
XIV. WAS SUQUASH AN OCCUPIED SITE DURING KWAKIUTL PRODUCTION OF  
COAL?......................................................................................................................................... 50  
XV. WAS SUQUASH A VILLAGE SITE DURING THE PRODUCTION OF COAL, 1849–  
1850?............................................................................................................................................. 53  
XVI. THE END OF FIRST NATIONS PRODUCTION OF COAL AT SUQUASH........... 54  
6
XVII.  
POST-TREATY CONDUCT OF THE PARTIES .................................................. 58  
XVIII. RESERVE CREATION AT FORT RUPERT......................................................... 60  
XIX. POST-CONFEDERATION RESERVE CREATION.................................................... 62  
XX. DISCUSSION..................................................................................................................... 65  
XXI. CONCLUSION .................................................................................................................. 69  
7
I.  
PROCEDURAL HISTORY OF THE CLAIM  
[1]  
On or about February 29, 2012, Kwakiutl (Kwakiutl First Nation or Claimant) filed a claim  
with the Minister of Aboriginal Affairs and Northern Development, alleging that “the Crown  
breached the Fort Rupert Treaties of 1851 … by failing to set aside as a reserve for Kwakiutl the  
Suquash village site … which included a coal mine operated by Kwakiutl” (Further Further  
Amended Declaration of Claim at para 3).  
[2]  
By letter dated February 2, 2015, Kwakiutl was informed of the decision of the Minister of  
Aboriginal Affairs and Northern Development to reject the claim.  
[3]  
On August 9, 2017, Kwakiutl filed a Declaration of Claim with the Specific Claims  
Tribunal (Tribunal).  
[4]  
On October 6, 2017, the Respondent (Crown or Canada) filed a Response to the  
Declaration of Claim with the Tribunal.  
[5]  
On March 5, 2018, the Tribunal provided the Province of British Columbia with notice  
pursuant to section 22 of the Specific Claims Tribunal Act, SC 2008, c 22 [SCTA], that a decision  
on certain issues in this Claim may significantly affect the interests of the Province of British  
Columbia.  
[6]  
On March 9, 2018, Kwakiutl filed an Amended Declaration of Claim with the Tribunal.  
[7]  
By letter dated March 14, 2018, the Tribunal was advised that the Attorney General of  
British Columbia will not be appearing in this Claim.  
[8]  
[9]  
On April 10, 2018, the Respondent filed an Amended Response with the Tribunal.  
On September 26, 2018, the Tribunal issued a bifurcation Order dividing the hearing of  
this Claim into two separate stages: validity and compensation.  
[10] On February 26, 2019, Kwakiutl filed a Further Amended Declaration of Claim with the  
Tribunal.  
[11] On March 28, 2019, the Respondent filed a Further Amended Response with the Tribunal.  
8
 
[12] On May 27, 2020, Kwakiutl filed a Further Further Amended Declaration of Claim with  
the Tribunal.  
[13] On June 12, 2020, the Respondent filed a Further Further Amended Response with the  
Tribunal.  
[14] On October 20, 2020, the Tribunal held a hearing by teleconference on an Application of  
the Claimant on two procedural issues.  
[15] On October 30, 2020, the Tribunal issued an Order, which includes oral reasons, on the  
Application.  
[16] The Tribunal held a virtual hearing of oral history evidence and expert evidence, both on  
validity from November 24 to December 3, 2020.  
[17] The Tribunal held a virtual oral submissions hearing on validity from February 16 to 18,  
2021.  
II.  
THE CLAIM  
[18] The Claimant advances claims under paragraphs 14(1)(c) and (d) of the SCTA, and in the  
alternative, paragraph 14(1)(a) of the SCTA.  
[19] The claims under paragraph 14(1)(c) assert that the Crown breached its legal obligations  
arising out of the Crown’s provision or non-provision of reserve lands, including unilateral  
undertakings that give rise to a fiduciary obligation at law. More specifically, the Crown breached  
its legal obligation by a failure to survey Suquash, land the Claimant says was to be “kept”  
(Claimant’s Memorandum of Fact and Law at para 139) by the predecessors to Kwakiutl from the  
transfer under the Fort Rupert Treaties.  
[20] The claim under paragraph 14(1)(d) states that the Crown failed to protect Suquash from  
alienation by failing to challenge subsequent alienations by way of provincial land grants and by  
failing to rectify the alienations by repurchasing Suquash when the opportunity arose. These  
failings are said to be breaches of a legal obligation arising from an illegal disposition by the Crown  
of reserve lands.  
9
 
[21] The alternative claim references paragraph 14(1)(a) and states that if Suquash was not  
reserved by operation of law on the execution of the Fort Rupert Treaties, 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 Fort Rupert Treaties.  
III.  
RESOLUTION OF THE MANY SYNONYM REFERENCES  
[22] The material provides many different references to First Nations people and locations,  
references that introduce different forms of words and sometimes implying different  
pronunciations. Through the text of these Reasons for Decision, I have attempted to be uniform by  
adapting the naming to what I consider a suitable set of names chosen from the many alternatives  
and substituted these for the original nomenclature in quoted extracts, with the substitutions  
marked in square brackets.  
IV.  
INTRODUCTION  
[23] The Kwakiutl First Nation is the successor to two First Nations, the Kwagulth and the  
Kweeha, who were parties to the Fort Rupert Treaties (the Treaties) made in February 1851,  
relinquishing their control of land along the northeast shore of Vancouver Island to the Hudson’s  
Bay Company (the HBC or the Company), along approximately 37 kilometres of the shoreline of  
Vancouver Island, extending southeast from Hardy Bay (now the site of Port Hardy, British  
Columbia) to MacNeill’s Harbour (now Port McNeill, British Columbia).  
[24] The map below shows the locations of Port Hardy and Port McNeill (Condensed Book of  
Documents of the Claimant (Claimant’s CBD), Vol 1, Tab 2):  
10