Treaties in history and law.
Judicial consideration of treaties can be divided into three areas of concern: the status of treaties as constitutional events; the definition of treaties recognized in law as creating legally enforceable obligations; and the interpretive approach taken to identifying treaty obligations that are, since 1982, protected as constitutionalized treaty rights. This section will discuss each of these dimensions of treaties in law in turn, beginning with the status of treaties as constitutional events, but with some unavoidable overlap between the three issues. The first dimension requires attention to doctrinal legal history, including debates about the enforceability of treaties at law. As Paul McHugh states, the task of the legal historian (with a historicist aim) goes beyond a sketch of what became the dominant doctrinal view:
Rather than having a monolithic and unified presence, law in the past (as law today) had a social and cultural setting that comprised and encompassed "many legalities" that were dynamic sites of iteration and contestation, a collection of possibilities shaped by context, rather than chiselled finality. Legal "truth" existed no more in the past, than it does in our present. The disinterested legal historian's task, then, is to capture the set of legalities as they occurred in the past, or, in other words, to describe the historical framework of legal argumentation. (159)
In keeping with this approach, this history will endeavour to include the positions of First Nations on the legality of treaties that have been expressed throughout Canadian history even though First Nations had no hand in the key federalism cases that determined the (non-)status of treaties as constitutional events and had poor access to the justice system more generally.
We will then move on to the definition of treaties at law, as set out in more recent cases considering section 88 of the Indian Act, (160) Finally, this section of the paper will finish by considering how courts interpret treaty rights. The aim is to bring these discussions together, along with the conclusions of the previous two sections to critique Canadian jurisprudence in light of its coherence with treaty histories and the potential of treaties to ground a post-colonial constitutionalism.
A. TREATIES AND SOVEREIGNTY: TREATIES AS CONSTITUTIONAL EVENT, THE DOCTRINAL HISTORY VERSION
As discussed in the first section, treaties are important to scholars concerned with a more secure and just legal foundation for Canadian sovereignty than colonial doctrines. These scholars illustrate what the law could be, a vision that does not necessarily accord with the current or past state of the law. The jurisprudence, by contrast, has only occasionally hinted that treaties might have a constitutional character that is "integral to the very fabric of Canada". (161)
The doctrinal treatment of the status and significance of treaties follows a path that is similar to the legal history of Aboriginal title as well as stages in the development of Imperial common law and international law. In a familiar arc, the dominant view of treaties in British North America moves from some degree of legal enforceability in the pre-modern period, to non-justiciable political acts by the late 19th or early 20th century, and then returns to justiciability in the second hall of the 20th century. It is, to be clear, a legal history of Imperial and colonial character. Although legal principles that direct a generous and liberal interpretation of treaties in favour of Indian nations appear to be almost as old as treaty litigation itself, (162) it is only in the post-1982 era that Canadian courts have made Indigenous perspectives--and potentially, Indigenous law--relevant to treaty interpretation and Aboriginal rights more generally. But the (colonial) legal history is far from uniform in its consideration of treaties with Indigenous peoples and the historical path is not as neat as I have just described.
In the 17th and 18th centuries, when the law of nations had not yet settled into its later fixations on the state and territorial sovereignty, Indian nations in North America were generally conceived as having some status and rights amongst nations, albeit not the same status and rights as Christian nations. (163) Influenced by the developing law of nations, British colonial practice involved treaty making with Indigenous peoples in North America, which, in this period, assumed that Indigenous peoples had the necessary political sovereignty to do so. British assertions of territorial sovereignty (primarily against other European powers) were not assumed to bring Indigenous peoples under British governance, relying instead on treaty making to achieve alliances and set the form of any imperium asserted over Indians in accordance with their consent. (164) Corresponding to the multiple forms of treaties in the 18th century noted in the previous sections, treaties thus defined the degree of jurisdiction or protectorship the British colony acquired over the Indian nation, or determined whether the nation maintained its political independence within or outside of the colony's boundaries. (165) Litigation testing the juridical quality and bindingness of treaties in this period demonstrates a full range of argument about the status of Indian nations, their law, and their lands. As Craig Yirush remarks in relation to his examination of the Mohegan Indians v Connecticut (1705-73), the Mohegan's legal fight against their dispossession created a record of a "complex trans-Atlantic debate about Indigenous rights in the eighteenth-century British world [encompassing].... concrete disagreements over the ownership of land in America, the binding nature of treaties, and the locus of authority in the empire." (166)
Treaties in this early era contributed to the British acquisition of sovereignty by bringing tribes into peaceful relations with colonies, enabling acquisitions and further acquisitions of land, and sometimes bringing the tribes under British imperium. But treaties did not generally confirm or establish British sovereignty in one fell swoop. The famous decision of Chief Justice Marshall in Worcester v Georgia is considered to epitomize the pre-modern legal view of the status of Indian nations and nature of treaties:
The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians.... The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. (167)
Thus American Indian tribes were recognized as political communities who relinquished some but not all of their sovereignty through treaties. (168)
The Royal Proclamation of 1763 confirmed the existing British policy and practice of treaty making to accomplish surrenders of lands from an Indian band or nation. Treaties also remained instruments through which relationships of alliance were formed or affirmed. But as settler pressures grew in the 19th century, and as the law of nations and British imperialism shifted under the influence of the emerging positivism, so did judicial treatments of treaties. Tribes lost their status on the international stage and were no longer recognized as having the capacity to enter into international treaties. (169) Further, the rights of the European discoverer shifted from achieving only territorial claims against other European powers--claims that had to be completed through war or treaties of cession--to achieving full territorial rights upon which the property rights of prior inhabitants persisted only by the goodwill of the Crown (until protected by legislation). This shift rendered treaties a matter of pragmatics and policy rather than law. (170) The judicial reflection of these shifts is illustrated by Prendergast CJ's reasons in New Zealand in Wi Parata v Bishop of Wellington in 1877, concerning the legality of the terms of cession of some land by the Maori owners and subsequent Crown land grant. (171) Where the Waitangi Treaty had previously been considered foundational to political if not legal relations with Maori, Prendergast CJ referred to the Treaty of Waitangi as a "simple nullity" in regard to construing the treaty as a cession of Maori sovereignty given that "[n]o body politic existed capable of making cession of sovereignty, nor could the thing itself exist." (172)
Similar intellectual and legal shifts made themselves known in Canadian jurisprudence in the late 19th century, at first through the federalism disputes between Ontario and the federal government. Lord Watsons seminal reasons in St. Catherine's Milling and Lumber Company v The Queen (173) equated Treaty 3 (174) with a contract that accomplished the surrender of the Ojibway's "personal and usufructory" property rights, (175) allowing the Crowns "substantial and paramount estate" to become a plenum dominium. (176) Lord Watson then reprised his role of articulating lasting principles of Canadian Aboriginal law in the Annuities Case, (177) in which he described the annuities provisions of the Robinson Treaties in issue as not conveying a right, but rather as a mere "promise and agreement, which was nothing more than a personal obligation by its governor, as representing the old province [of Upper Canada], that the latter should pay the annuities as and when they become due". (178) Finally, in the 1929 case of R v Syliboy, (179) Patterson J brought Lord Watsons approach together with the removal of Indigenous political personality from international law to dismiss the enforceability of the Mi'kmaq Treaty of 1752. Lie dismissed the Mi'kmaq's argument that the continuing rights to hunt and fish found in the terms of the 1752 Treaty protected them from provincial regulations based on the Mi'kmaqs lack of capacity to enter into a treaty as a people, (180) adding, for good measure, that the Treaty of 1752 "[was] not a treaty at all ... it [was] at best a mere agreement made by the Governor and council with a handful of Indians", thus branding treaties as a form of political agreement that was unenforceable at law. (181)
In all of these cases, and in contrast to the earlier era epitomized by Worcester v Georgia, the Crowns full territorial sovereignty, imperium and dominium, was assumed to be complete both in law and in fact. (182) On these assumptions, treaties were not required to secure the Crown's assertions or to bring Indigenous peoples in British North America under the Crowns jurisdiction. Instead, treaties (and land rights) became understood as an expression of goodwill. As executive policy, Indigenous "rights" could be altered when the will of the executive changed (unless secured by legislation).
In spite of these characterizations, it is too much of a leap to suggest that treaties were not justiciable in Canada through the 19th century; that the executive's personal goodwill and subsequent actions could not give rise to legally or equitably enforceable obligations. In some cases, it seems that the courts in Canada assumed that treaties were enforceable as some form of trust. For example, in the Annuities Case, the focus was on whether the obligation lay with the federal government, as the Supreme Court majority and Privy Council held, or had passed with the lands in issue to the Province of Ontario under section 109 of the British North America Act, 1867, as the dissenters and original arbitrators had found. While the treaty promise was characterized as a "personal obligation" taken on by the governor representing the Province of Canada, the political trusts cases were not relied on and the enforceability of that form of promise by the First Nations was not in issue. (183) Indeed, if the obligation was one that could be ignored by the governments, there would have been no need to litigate. The assumption that treaty rights were to be respected was also evidenced in the negotiations around the Natural Resource Transfer Agreements of the 1930s, in which the Crown's ownership of lands and resources was transferred from the federal Crown to the western provincial Crowns to align their provincial status with that of the original members of Confederation. Each of those transfers included a provision protecting treaty hunting rights, which constitutionalized treaty rights in Canada for the first time, (184) rights that were upheld in regulatory prosecutions soon after. (185) Treaty obligations were also found to be legally enforceable in Dreaver v The King, (186) another case from the same era. In this case, the federal Exchequer Court enforced the medicine chest provisions of Treaty 6, holding the federal government liable as trustee for medically-related and other expenses it had charged back to the First Nations' accounts.
Later in the 20th century, the enforceability of treaties became framed as a matter of contract. In the 1979 case, Pawis v The Queen, (187) Ojibway fishers charged with violating Ontario fisheries regulations defended themselves (and lost) by claiming the regulations were a breach of treaty obligations under the Robinson-Huron Treaty of 1850. The federal court rejected framing the issue as one of trusts, reading the Annuities Case through the line of Imperial "political trust" cases in which the trusts are admitted but unenforceable at law. (188) Thus the Syliboy line of reasoning was applied to reinterpret the Annuities Case. Nevertheless, the Court was willing to contemplate damages for a breach of contract but ultimately held that such an action was unfounded in the case. Cases like Dreaver and Pawis illustrate that Syliboy's influence as a precedent in the first half of the 20th century was limited and that differences regarding the legal nature of treaty obligations persisted. (189)
Throughout this history, First Nations perspectives on their treaty rights and obligations are not well represented in the jurisprudence, (190) but it is certainly clear that they did not view the treaties as purely political and unenforceable at law. When opportunities presented themselves to press their concerns, they took them. For example, First Nations witnesses appeared before a special joint committee of Parliament and a 1946 Royal Commission to complain that their treaty rights and privileges were binding and were not being honoured. (191) Contestations also extended to what treaties accomplished. The Six Nations, for example, have steadfastly claimed they are not subjects of the Crown, disputing the Crown's view of the implications of their 17th- and 18th-century treaties. Their objections to the application of the Indian Act to their confederacy reached the courts in Logan v Styres (192) in 1959. They expected the Haldimand Deed of 1784 and the Simcoe Deed of 1793--documents that granted the Six Nations territory in southern Ontario for their loyalty to the British in the American war of independence--to support their claims. Instead, the Ontario High Court found that "by accepting the protection of the Crown" the Six Nations "then owed allegiance to the Crown and thus became subjects of the Crown." (193)
To sum up the doctrinal view in the early modern period (and later in other parts of the British Empire (194)), treaties were related to the process by which sovereignty was acquired. In late 19th-century Canada, however, this connection to sovereignty was severed in what became the dominant line of judicial opinions. Sovereignty was instead viewed as complete without the contributions of Indigenous peoples, and the primary significance of treaties at law was a gesture of political goodwill to ensure a consensual basis for land surrenders, the legal import of which, if any, rested in different types of trust obligations. In this Austinian sense of constitutionalism, the command of the sovereign was law and the acquisition of territory and sovereignty through coercive forces was a fact of political life, beyond the purview of the rule of law. (195) Nevertheless, this line of cases should not eclipse the continuing presence of other constitutional traditions, represented in the presence of political and legal opinion that the Crown's gestures of "goodwill" were actionable and mandatory as trust or contractual obligations, and the persistence of Indigenous advocacy for the enforcement and implementation of their understanding of the treaties.
By the mid-20th century, the dominant judicial approach to treaties began to shift again. In 1951, the enforceability of treaties was reinforced by section 87 (later 88) of the Indian Act, a provision that extended the application of provincial law where, historically, it would otherwise not apply in light of federal jurisdiction over Indians and Indian Lands. (196) Section 88 makes treaties enforceable by also setting out an exception: the extension of provincial laws is subject to the terms of any treaty, thereby making treaties enforceable as against the application of provincial laws. Through the jurisprudence on section 88, a significant shift in the conceptualization of treaties occurred. In Simon, the Supreme Court relegated Syliboy to an artefact of an earlier and outdated set of colonial attitudes. The Court moved past this precedent by correcting the capacity issues raised by Patterson J and differentiating Crown-Aboriginal treaties from international treaties by identifying them as sui generis, (197) The sui generis approach recognizes the capacity of Indian nations to have entered treaties as political communities within the state, but it does not resurrect the American line of authorities (i.e., Worcester v Georgia) to address how treaties relate to the acquisition of sovereignty. If anything, the sui generis status of treaties in Canada muddied the sovereignty waters. (198)
The introduction of section 35 in 1982 gave constitutional force to treaty rights and increased momentum towards settling longstanding grievances around the meaning and implementation of historic treaties. The phrasing of section 35, however, focused legal attention on particular terms and promises in a manner that avoids the more difficult questions around the role of treaties in the formation of the Canadian state. In other words, the constitutionalization of treaty rights has not addressed the constitutional status of treaties themselves. The Supreme Court has only broached this issue in relation to its articulation of a constitutional duty to consult and accommodate Aboriginal peoples. In the seminal 2004 decision, Haida Nation, McLachlin CJC commented that
[t]reaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition.... This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. (199)
This comment, coupled with her attention to the difference between de facto and de jure sovereignty (another first in the Supreme Courts jurisprudence), situates treaties as the key process by which Crown sovereignty may finally be part of a rule of law that encompasses both Indigenous and European legal traditions. (200) Thus, Haida Nation offers a crack in the door of Canada's constitutional origins that might permit the significance of treaties as "integral to the constitutional fabric of Canada" to finally be addressed as a matter of law and not just theory.
B. DEFINING TREATIES AT LAW (DOMESTIC)
Beyond judicial treatments of the constitutional significance of treaties, the way that Canadian courts have defined treaties is also of interest in our interdisciplinary survey. The section 35 jurisprudence does not define treaties; the question of "what is a treaty" does not occur in a jurisprudence directed at particular promises or treaty terms. Instead, this question comes up in the jurisprudence around section 88 of the Indian Act, where direct consideration of what qualifies as a treaty is necessary to determine when the exception to the application of provincial law applies. In this context, the Supreme Court has taken a remarkably broad approach to what may qualify as a treaty in law.
Avoiding any overarching definition of treaties, the Court has explicitly rejected approaches based on subject matter, such as land cessions or peace and friendship. Instead, Lamer J (as he was then) stated in R v Sioui that treaties are identified by "the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity."* 201 This broad approach draws directly from R v White and Bob, (202) in which Norris JA of the British Columbia Court of Appeal stated:
In [section 87; now section 88] "Treaty" is not a word of art and in my respectful opinion, it embraces all such engagements made by persons in authority as may be brought within the term "the word of the white man" the sanctity of which was, at the time of British exploration and settlement, the most important means of obtaining the goodwill and co-operation of the native tribes and ensuring that the colonists would be protected from death and destruction. On such assurance the Indians relied. (203)
Lamer J also adopted five factors extracted from the Ontario Court of Appeal's decision in R v Taylor and Williams (204) to guide the analysis of the historical context and the intent to make a treaty: 1) continuous exercise of a right in the past and at present; 2) the reasons why the Crown made a commitment; 3) the situation prevailing at the time the document was signed; 4) evidence of relations of mutual respect and esteem between the negotiators; and 5) the subsequent conduct of the parties. (205) These factors incorporate attention to the parties' relationships and practices both before and after the agreement in issue into the identification of which treaty obligations are relevant at law, reflecting the directions emerging from the historical overview in the previous section. (206)
This approach to identifying treaties in the jurisprudence around section 88 accords reasonably well with the breadth of treaty experience described in the section on treaties in history. It does not establish any barriers to arguing that a treaty was made regardless of the form and documentation. And it allows for the possibility that treaties evolved through the subsequent conduct of the parties. While the emphasis on the Crowns interests in making treaties in the five factors adopted in Sioui may tilt the approach to one side, the emphasis on the reliance of the Aboriginal parties on the promises of the Crown in R v White and Bob provides a counterpoint that potentially connects treaties to discussions of constitutional origins. Most importantly for this discussion, it is notable that the notion of a "common intention" between the parties regarding the content of particular treaty provisions--which, as we will see below, dominates the section 35 jurisprudence--is absent. Instead, mutuality is important only in regards to identifying an "intention to create obligations" and the presence of "mutually binding obligations," neither of which demands a finding of shared meaning with respect to the treaty itself or particular treaty promises. As will be discussed below, the focus on "common intention" in section 35 treaty rights interpretation narrows the expansive approach to treaties that emerged from the section 88 cases.
C. DEFINING TREATY RIGHTS
The introduction of section 35 through the Constitution Act, 1982 "recognized and affirmed" existing treaty rights, shifting the emphasis of treaty litigation towards the scope and nature of particular treaty promises (and once rights are established, whether government action infringing those rights can be justified). (207) By this time, a principle of a generous and liberal interpretation of the words of statutes relating to Indians was already established, adopted from Worcester v Georgia as noted earlier (Annuities Case). In Rv Badger, (208) Justice Cory summarized the gist of this longstanding interpretive stance as follows:
Treaties and statutes relating to Indians should be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians. In addition, when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement. The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. (209)
The "generous" posture of these interpretive principles allow for some present-day accounting for the unequal bargaining conditions that characterized the negotiation of many of the historic treaties discussed earlier. However, these principles also implement the doctrinal stance from the 19th-century jurisprudence, discussed above, in which the obligations formed through treaties are a matter of trust and goodwill on the part of the Crown. One additional principle--the honour of the Crown--has also been brought forward from the 19th century and is relied on to slightly different effect from the above set of principles. (210) Specifically, the honour of the Crown directs courts to avoid interpretations of treaty commitments that would give the appearance of "sharp dealing"
on the part of the Crown. An approach that moves past the 19th-century jurisprudence would, minimally, need to move away from text as the starting point for the interpretation of treaty obligations and rights.
These well-established principles were last revisited in Marshall, a case that arguably refocused treaty interpretation from the "generous and liberal" principles above to reconstructing a historical mutual intention as the aim of treaty rights interpretation. (211) At issue in Marshall was the truckhouse clause of a 1760-61 treaty and whether it provided the basis for a contemporary right to catch and sell fish. The text of the clause in issue was spartan, stating only that the Mi'kmaq promised to trade exclusively at the British truckhouses. (212) The truckhouse system itself was replaced with a (less expensive) system of licensed traders in 1762. The majority judgment, written by Binnie J, reached beyond the inadequacies of the written agreement. He drew from historical sources surrounding the negotiation of the 1760-61 treaty, such as Mi'kmaq negotiators' plea for the truckhouses to furnish them with their necessaries through trade, to support his conclusion that the negative covenant contained in the treaty (to trade only at British truckhouses) implied a positive Mi'kmaq right to bring their goods to the truckhouse to trade for their necessaries and, consequently, to access the resources that were to be traded (in this case, eels). The treaty was thus found to support a modern right to fish and to sell the products of such traditional activities up to the level of a moderate livelihood.
Binnie J's judgment emphasized the idea of reconstructing the parties' common intention from a broad view of the historical context of the treaty. He described the aim of treaty interpretation as follows: "The bottom line is the Court's obligation is to 'choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles' the Mi'kmaq interests and those of the British Crown". (213) According to Binnie J, the inequities and differences that imbue this treaty history demand that the Court reach beyond the written treaty to imply terms to make "honourable sense" of the treaty and to interpret terms once they are found to exist. The honour of the Crown was thus critical to how Binnie J arrived at this interpretation. As he stated, "an interpretation of events that turns a positive Mi'kmaq trade demand into a negative Mi'kmaq covenant is [not] consistent with the honour and integrity of the Crown.... The trade arrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown." (214) Thus, whatever the historical intention of the Crown might have been at the time, Binnie J's reasons show that the honour of the Crown is capable of both limiting the availability of some interpretations as well as implying additional treaty terms, such as access to the resources and harvesting activities necessary to participate in the trade secured by the treaty.
The dissenting opinion, written by McLachlin J (as she was then), accepted the trial judges assessment of the evidence that the common intention was only to create a right to trade at truckhouses, not a general right to trade. This conclusion was based primarily on the wording of the treaty. McLachlin J favoured an interpretation that relied on the historical evidence that the truckhouse system fell into disuse soon after the treaty so as to render the treaty right to trade obsolete. She claimed that Binnie J s approach transformed a "specific right agreed to by both parties into an unintended right of broad and undefined scope." (215) In spite of their different interpretations of the facts, however, McLachlin and Binnie JJ purported to apply the same interpretive principles and McLachlin J's 9-point version of the principles is often cited as authoritative. (216)
While there appears to be a high degree of judicial consensus about the principles of treaty interpretation, the honour of the Crown principle retains an open-ended quality that is not surprising given differences in judicial deployment. In Badger, for example, Cory J indicated that the integrity of the Crown requires an assumption "that the Crown intends to fulfil its promises" and that "[n]o appearance of 'sharp dealing' will be sanctioned." (217) This version of the principle is potentially more limited than Binnie Js version in Marshall, where the honour of the Crown ensures that promises have "meaning and substance". In Cory Js version, the honour of the Crown ensures that promises, presumably identified and defined through the other interpretive principles, are fulfilled. Thus, the honour of the Crown might bar an interpretation of treaty promises as short-term obligations where such promises were delivered with assurances of the treaty's longevity--even if a short-term commitment was all the Crown intended or expected. By contrast, Binnie J's version of the honour of the Crown may inform the content of those promises; as illustrated in Marshall, the principle can ground the identification of adjunct rights that were not explicitly promised in the treaty record. (218) Apart from this difference, however, the treaty interpretation principles are well-established and apparently uncontroversial.
Academic evaluations of Marshall were, for the most part, cautiously optimistic: the principles contained the necessary ingredients for recognizing the "spirit and intent" of the treaties beyond the treaty text. (219) As Mark Walters commented: "Marshall is premised upon the idea that treaties with Aboriginal nations are not documents or written instruments but rather are relationships-or, more precisely, they represent a shared understanding of and commitment to a normative framework for cross-cultural relationships." (220) One of the reasons for this cautious optimism was the decisions clarification that extrinsic evidence, such as oral history or other records relating to the context of negotiation, may be used to assist in all cases of treaty interpretation, rather than only where the court found ambiguity in the written treaty. Indeed, the principles are flexible enough to treat the text as more or less central to the interpretation of the treaty, as indicated by the historical circumstances.
Since Marshall, the Supreme Court has reiterated these principles and emphasis on determining a historically pinpointed common intention as the baseline for defining treaty rights. (221) However, as the gulf between Binnie and McLachlin JJ's interpretations in Marshall illustrates, these well-established interpretive principles do not constrain judicial interpretation in application. In R v Marshall; R v Bernard, (222) for example, the interpretation of the same truckhouse clause from Marshall was again in issue, but this time in relation to logging rather than fishing rights. While the primary significance of this case was the discussion of Aboriginal title, the quick work of the Court in dismissing the treaty claim is of interest for present purposes. The claim was that the truckhouse clause supported trading rights in relation to the products of any Mi'kmaq traditional harvesting activities. The counter-argument was that the clause supported trading rights only in relation to items traded at the time of the treaty. The evidence showed that although the Mi'kmaq used wood, they did not conduct much or any trade in forest products at the time of the treaty (distinguishing the case from Marshall). McLachlin CJC's majority reasons refer briefly to the historical context of alliance surrounding the treaty, but strongly rely on the words of the treaty itself in siding with the Crown and rejecting the claim: "This [interpretation] is supported by the wording of the truckhouse clause. It speaks only of trade. ... Nothing in these words comports a general right to harvest or gather all natural resources then used." (223) Text, not relationship, defined the scope of the inquiry. Moreover, the text-driven approach ensures that, at their core, treaty rights represent historical moments of common intention as determined by the courts, whether supported by historical opinion or not. The constitutional significance of treaties is thus also conveyed through these artificial moments of consent, a significance that stands in sharp contrast to the process-oriented constitutional narratives that give consent an aspirational quality.
Post-Marshall decisions in lower courts also demonstrate a stubbornly text-driven approach to interpretation. In Canada v Benoit, (224) Victor Buffalo, and Ermineskin Indian Band and Nation v Canada, (225) for example, the plaintiffs' claims of treaty rights based on oral promises (as opposed to terms in the treaty text) were rejected. The treatment of oral tradition evidence in these cases is an important aspect of these results. In Victor Buffalo, for example, Teitelbaum J preferred the Crown historical experts approach of using oral history evidence as one of many sources or as a check on text in reconstructing "a real past independent of what people presently believe it to be", (226) and generally preferred written historical accounts over oral tradition as a matter of assessing the weight to be attributed to the different sources of evidence. As Teitelbaum J noted, such an approach is consistent with direction from the Supreme Courts jurisprudence to give "due weight" to oral evidence. (227) Morris, in which the Douglas Treaty hunting right was held to include the Saanich Nation's traditional practice of night hunting, might be held out as a counterpoint illustrating the capacity of the treaty rights jurisprudence to take First Nations perspectives seriously. However, the controversy in Morris focused on federalism concerns over provincial jurisdiction to regulate night hunting rather than the scope of treaty hunting right. (228) In any event, the treaty interpretation principles cannot, in the abstract, designate the weight that must be attributed to oral tradition evidence in a given case.
A text-driven approach to treaty interpretation disappoints because of the limited access to Indigenous perspectives available through a text that First Nations did not draft and often could not read. Moreover, as the previous section on treaties in history suggests, not all treaties (or treaty promises) were recorded in documentary form. Without assuming that the treaty claims in Ermineskin or Benoit had to succeed to be fair, the treatment of the oral tradition evidence in these cases leaves readers (and no doubt First Nations claimants) with the impression that their claims were not fully heard. These problems and the need for courts to work with oral tradition evidence are well understood by scholars and courts, so we must ask: Why is text-driven treaty interpretation still dominant? Why is it so difficult to move beyond this approach?
The continued dominance of text in the face of principles that direct the interpretive efforts away from the text is, in part, an institutional problem. Canadian judges demonstrate the limited nature of their collective imagination in their inability to conceive of treaties beyond their representation in the written text. Documentary forms of historical evidence are similar to the forms of evidence judges are accustomed to in civil litigation. As such, judges often make their own assessments of historical documents, much to the consternation of the expert witness historians who perhaps wish their craft was more like a hard science, attracting fewer hobbyists. (229) However, the issue is not simply that treaties remain a fundamentally written phenomenon to courts, but that judges appear to remain "positivist troglodytes" about history. (230) The epistemological crises faced by the social sciences and academic history in the latter part of the 20th century--crises that take aim at the stability and durability of historical facts and past exclusions of minority and marginalized populations in the writing of history (231)--have not filtered into the court room. History in Aboriginal rights cases is still of the sort that expects to find, as Crown historian von Gernet put it, "a real past".232 Moving past a text-driven approach thus involves an epistemological shift to make space for Indigenous law and oral histories, but also away from written law and the positivist tradition of history.
As the post-Marshall treaty jurisprudence demonstrates, legal principles alone cannot shift the narrative and epistemological foundations from which interpretation proceeds. The institutional and epistemological aspects of the problems suggest solutions that lie outside the litigation of particular cases, such as increasing the number of Aboriginal decision makers and the creation of a specialized treaty tribunal. Both recommendations have been made before and there is no need to repeat these analyses here. (233) However, there is still room within the jurisprudence itself to consider what principles and approaches might support treaties as relationship, as constitutional events, and as ongoing constitutional processes. Such a jurisprudence will require a shift in focus away from common intent.
The above discussion of the treaty jurisprudence shows that it produces an unhappy marriage of law and history, and a deficient, obscured constitutional narrative. To arrive at possible directions for a shift of emphasis in the treaty rights jurisprudence, the remainder of this section will focus on the issues that emerge from the above analysis and then outline the ramifications and directions for treaty jurisprudence. The aim, as stated above, is for a jurisprudence that coheres with the constitutional promise of treaties, which, incidentally, would also better promote the Courts vision of section 35 rights facilitating reconciliation between the state and Aboriginal peoples.
1. PUBLIC HISTORY AND THE LEGAL FICTION OF COMMON INTENTION
As discussed above, the interpretive principles ask judges and parties to look for a historical common intention, instructing them to choose from amongst the possible interpretations of a treaty the one interpretation that best reconciles the parties' interests at the time of the negotiation. Walters observes that this judicial inquiry "purports to be primarily an historic one ...; shared treaty-meanings appear to be treated as facts and not laws." (234) However, as Walters points out, the idea of a common intention is primarily a normative concept, rather than a factual one. The empirical emphasis thus obscures the normative foundations for constitutionally protecting treaty rights. Our first issue is the disjuncture that this empirical presentation introduces between academic history and history in court, presenting concerns related to what antipodean scholars have described as "juridical history": "a mode of representing the past so as to make it available to legal and quasi-legal judgment in the present." (235)
The disjuncture between juridical and academic history is not necessarily problematic: law and history are different interpretive communities and they do not have to reach shared conclusions about the past. (236) These different fields of knowledge may also serve different ends. Miranda Johnson, for example, has argued that, in deciding matters of Aboriginal rights, institutions such as the Waitangi Tribunal are tasked not only with granting historical justice but with reimagining history to support the re-founding of the nation-state. (237) In this role, historical narratives that construct "a formal [political] equivalence ... [render] political concepts like biculturalism and partnership thinkable in contemporary New Zealand. But in order for these concepts to be established as re-foundational they must be thickened with an (imagined) historical past." (238) Thus, juridical history may be productive of national or official history in a manner that is distinctive from the contributions of empirically-oriented histories, particularly if we take the authoritative voice of the courts into account. (239) In the case of treaty interpretation, however, the disjuncture between juridical and descriptive academic histories is problematic.
The treatment of historical evidence by courts is one aspect of the disjuncture that has attracted a great deal of commentary. Arthur Ray, for example, has commented that the adversarial process of treaty and Aboriginal rights litigation can polarize and destabilize academic opinion, potentially resulting in the "dredging up [of] outdated theoretical perspectives" or the invention of "new ones on the witness stand," even while creatively pushing the scholarship on Indigenous history and Indigenous-settler relations in new directions. (240) More problematic ramifications of the disjuncture, however, can be felt far beyond academia. The occasionally violent aftermath of the Marshall decision between east coast fishers--who perceived the treaty right recognized by the Supreme Court as a threat to their livelihood--and the Mi'kmaq is the most obvious manifestation of this phenomenon. (241) The argument is not that the disjuncture between judicial and academic history caused the violence. As Ken Coates convincingly demonstrates, the eruption around Marshall was not caused by the Supreme Court's decision, but was, rather, embedded in a much longer history of simmering and unresolved disputes. (242) The concern is instead how this disjuncture promotes continued public confusion and discord about why Aboriginal rights are constitutionally protected, potentially undermining the authority of law. (243)
In the reaction to Marshall, the Court's finding was perceived to be "invented" given the lack of reference to fishing rights in the text of the 1760-61 treaty itself. (244) This perception potentially undermines the legitimacy of the Court's Aboriginal rights jurisprudence more broadly and led to accusations of judicial activism that continue a decade later. (245) The appeal of a "real history" is not confined to the courtroom. More importantly, the empirical emphasis of the jurisprudence feeds public perceptions that Mi'kmaq treaty rights are centuries-old points of (written) agreements, rather than rights imbued with a concern for justice and reconciliation resulting from disregard for centuries-old commitments that has given rise to multi-layered historical grievances, dysfunctional political relationships, and real and unjust inequalities in the present day. The story that the jurisprudence tells about why we protect treaty rights matters. The accusations of judicial activism are troubling (and wrong-headed, in my view), as is the lack of awareness of history and Mi'kmaq experience that fuelled the aftermath of the Marshall decision. Courts are situated within larger fields of public history. While courts should not pander to popular opinion, their contributions to public history should be explicit enough to educate. An empirically presented idea of the normative concept of historical common intention cannot achieve this end.
Besides education, what is lost through the ahistorical treatment of common intention? According to Bain Attwood, opportunities for reflection and change. Writing about Indigenous history and legal claims in Australia, Attwood argues that presenting the full complexity of history better serves the aims of justice. (246) He describes the emergence of the "stolen generations narrative" in Australia, constructed largely through oral history, memory, and applied forms of historical discourse. The narrative portrayed the government policy as genocidal and this narrative was broadly accepted by the Australian public. By contrast, Attwood contends that academic history characterizes the past policy as assimilationist. (247) In his view, this disjuncture leaves the genocide narrative vulnerable to attack. The clash of historical methodologies involved in producing these opposing narratives and the continuing (and authoritative) appeal of the sharper historicism of much academic history is capable of undermining the testimony of individuals and work of the stolen generations inquiry more generally. It does not serve the ends of justice to have peoples memories publicly discredited, neither for the individuals involved nor when "sympathetic" public opinion is disrupted by evidence that their sympathies were premised on "lies". Similarly, the authority that the common law and common law constitutionalism draw from history is undermined when the "truth" of the courts' history is shown to be too far from the truth produced in academic contexts. (248)
Equally importantly for present purposes is Attwood's further contention that a historicist account of the stolen generations policy would be more unsettling than the genocidal one. Attwood argues that there is greater potential for change in forcing settler Australia to grapple with the continuities in settler policy, in which assumptions that assimilation is for the betterment of Aboriginal peoples are still prevalent:
Grasping this historical continuity and grappling with what amounted to an intimately close relationship with the approach of their allegedly do-gooding forebears or predecessors [who took aboriginal children away from their families to promote assimilation] would have been more unsettling than the sorry peoples distancing of their putatively genocidal ancestors. These settler Australians might have realized that the past was in the present not only in the form of Aboriginal people affected by being separated from their kin but also in the form of a white mentalite we can call assimilationist. Understanding this could have provided a means of working through this past in the present, since it would have pinpointed the very ideas and attitudes that have contributed and continue to contribute to the destruction of Aboriginal communities and the diminution of Aboriginality by the settler society. (249)
While Attwood's "might" is an important caveat on predicting the impact of a historicist account of the stolen generations policy, his work makes the point that something is indeed lost by historical accounts that do not attend to the historical complexity of the past. If we cannot see the past clearly, it is harder to move towards a new--hopefully more just--direction. As Postema has argued in relation to the common law's reliance on precedent more generally, "[i]f members are to take their community's history as normative for their dealings, that community must own up to its past, look back at the roads not taken and the suffering it has caused, and hold itself accountable to them." (250) Thus, the ends of justice may be better served by a treaty jurisprudence that does not "whitewash" the past by retrospectively imposing the honour of the Crown, or other principles aimed at fairness in the present.
2. ADDRESSING THE CONSTITUTIONAL SIGNIFICANCE OF TREATY RIGHTS
The empirical dressing on the normative concept of common intention highlights the need to address the normative foundations for protecting treaty rights. Commentators on treaty interpretation have occasionally gazed wistfully towards contract law, noting the simplicity (and potential transferability) of well-understood normative principles such as undue influence, duress, and unconscionability that are used by the court to interpret the facts of a given contract. (251) What they notice is the willingness of courts to interpret an agreement between parties with a view to balancing the values behind protecting freedom of contract and the ends of justice in the particular case. As Binnie J remarked in Marshall,
The law has long recognized that parties make assumptions when they enter into agreements about certain things that give their arrangements efficacy.... If the law is prepared to supply the deficiencies of written contracts prepared by sophisticated parties and their legal advisors in order to produce a sensible result that accords with the intent of both parties, though unexpressed, the law cannot ask less of the honour and dignity of the Crown in its dealings with First Nations. (252)
Binnie J's comment suggests that if we apply normative correctives to resurrect the parties' true (and apparently shared) intentions born of a retroactively levelled playing field, treaty rights jurisprudence will have succeeded in accomplishing its task. Serving the ends of justice in the treaty interpretation context, however, is more complex than the interpretation of contracts, due to the historical nature of the agreements and the constitutional character of the moments of agreement--and because the foundational values behind protecting historic treaty rights are arguably less understood and more contentious than the values behind protecting freedom of contract. (253) In contract law, the value of enforcing agreements between parties may be related relatively straightforwardly to liberal values around freedom in economic relations. (254) In the context of historic treaties, the law assumes that First Nations' consent matters but does not explain why their consent matters, at what point in time, or in relation to what. In the broad scope of treaties caught by the jurisprudence, consent to land cessions or alliance (as the treaties are characterized by the court) is treated on the same plane. While the value of consent in social contract theory may be well accepted (even if the conceptualization of this consent remains highly contested (255)), the lingering implications of the 19th-century treaty law suggest that Indigenous peoples were not part of this contract. And as described above, the later section 88 and treaty rights cases avoid any direct engagement with the constitutional significance of treaties.
McLachlin CJC's statement in Haida Nation noted earlier--that "[t]reaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s 35 of the Constitution Act, 1982" (256)--continues to disconnect treaty rights from the constitutional significance of treaties more generally. In this separation, treaty rights are the remainder of reconciled sovereignties, representing, perhaps, the terms of that reconciliation. In this schema, treaty rights are born of foundational moments of consent, thus explaining the Courts instinct to rely on history to define their content. But this approach further confounds normative clarity by exacerbating tensions inherent in the values supporting Canada's constitutional order; for example, between liberalism, which is fundamentally skeptical of the justice of past political relations, and common law constitutionalism, which relies on past constitutional arrangements to ground the legitimacy of political authority in the present. Moreover, this approach does not accord with the promise or history of treaty making. In the first section of this paper, I emphasized the relational and evolutionary nature of both treaties and consent. In the second section, I argued that treaty histories were characterized by ongoing disagreements as much as by points of agreement. Bringing these discussions forward highlights to the inadequacy of conceptualizing treaty rights as products of final, complete agreements. This approach simply does not tell a constitutional story upon which more just relations can be built.
Honouring past commitments as a foundation of present day communities and legal rights is a key component of just political arrangements in a number of different philosophies and perspectives. (257) In the case of treaties, such foundations are constitutional in more than one dimension; treaties embody both a notion of original consent and the continuity of "keeping faith with each other" through keeping treaty relationships alive. (258) But even if there is a high degree of acceptance of the value of honouring past commitments, this value does not prescribe how to implement such commitments in the present, particularly when those commitments have suffered long periods of neglect. As Jeremy Waldron has argued, there is no straight line between historic injustice and the rectification of those wrongs in the present. (259) Waldron is in part concerned about remedies (e.g., "giving the land back" as a straight line from the wrongful taking of land in the past), and the potential to do further injustice by not taking intervening events and changes into account. While I do not agree with all aspects of his argument, he draws attention to the mediation of the consequences of the past through present-day normative principles. A treaty jurisprudence capable of supporting the promise of treaties must develop transparent and robust normative foundations to adequately address the consequences of the past.
3. REORIENTING TREATY INTERPRETATION
What would a treaty jurisprudence that does not focus on the reconstruction of an imagined common intention look like? Consider, as an example, the different findings of common intention and the resultant treaty rights in Marshall. Binnie J found a broad, ongoing right to harvest and trade fish while McLachlin J found a narrower temporary right that disappeared with the truckhouse system. Under Binnie J's approach, the treaty right re-commits the parties to a treaty relationship and constitutionalizes one particular element of that relationship: a commitment to exclusive trading relations. It relies on the honour of the Crown to bridge the past agreement to the present constitutional right, but does so in a manner that cannot fully explain how this doctrine serves justice in the present because it is applied to reconcile the parties' interests in the past. Moreover, the principles that guide the modernization of the past treaty promise are thinly sketched, focusing on "proportionality" of the modern to the historic to implement the past bargain without inquiring into how parties might have renegotiated their arrangements, or taken account of developments between then and now. (260) The jurisprudence thus not only keeps us focused on the past, it also has gaps in the principles that move us from past to present.
Given that McLachlin J did not find an ongoing treaty right, her conclusion did not result in a remedy. But she did not deny the presence of a trade right, just the longevity of it. In her approach, the treaty right was rendered obsolete by the changed trading system. With a different treaty rights doctrine, however, these findings of fact might also support a remedy. As our review of treaty histories suggests, much historic injustice relating to treaties was effected through neglect. These histories suggest that once a treaty right is identified, the proper inquiry is (like the principles from R v Taylor and Williams) what happened to the agreement and the particular right: What happened to Mi'kmaq trade and ability to access "necessaries" once the truckhouse system was dismantled? Was the truckhouse system unnecessary because trade was secured through other systems (and so the trade right possibly survived in a modified form)? What happened to British-Mi'kmaq relations more generally? Were trade and other arrangements renegotiated or altered through practices? Was the Crown neglectful of its treaty obligations? Or did the Mi'kmaq agree (under fair conditions) to relinquish their trading and harvesting rights? And if so, for what benefit?
Assuming for present purposes that this story encompassed some elements of Crown neglect, the narrative that emerges suggests that the treaty right remained in its historic form. The dispute is thus shifted from whether the right exists to how the right and treaty relationship were implemented and maintained over time--a diagnosis of the problem that better coheres with constitutional narratives about the significance of treaties and better explains the continuing need for corrective action by the courts. The task for the courts remains reconstructing the historical relationship and its specific terms, but aimed only at defining the historical right as a platform for the parties' negotiations. (261) Remedial attention is thus also shifted to causing the parties to bring the relationship into good standing, with a guarantee of ongoing historical rights (or perhaps damages for the loss of ability to exercise historical rights) looming as the default "hammer" to ensure negotiations proceed, but without the pretension that such historical rights fully represent the constitutional significance of treaties or fully define the shape of treaty rights in the present. Such remedies are perhaps already available under the honour of the Crown. In Haida Nation for example, McLachlin CJC made it clear that the honour of the Crown applies to treaty making, treaty interpretation, and treaty implementation. (262)
What is absent from this example is attention to how historic rights would be identified in cases where the written record does not establish the presence of a historic treaty right, such as when treaty rights are claimed based on oral promises not reflected in the treaty text. In these cases, the generous interpretive principles still have much to offer, particularly if aimed at shared meaning and intentions on a broader scale. Mark Walters notes that a broader view of common intention, based on customs and practices rather than treaty texts and reports, would allow for a greater possibility of locating shared meanings in the treaties. (263) In this approach, the asserted historic treaty right would be evaluated against a longer historical framework of relations and mutual intention or shared meanings may have more in common with Sioui than Marshall. Walters approach is also similar to Brian Slattery's notion of "generic" Aboriginal rights that emerged from intersocietal law and practices, and against which distinctive specific rights evolved through negotiations and other developments. (264) And in a similar vein, Shin Imai has proposed a two-stage process to implement "taking up lands" clauses that relies on a more generalized view of treaty rights that better reflects the nature of the bargain struck in historic agreements. (265) The first stage would analyze the substance of the treaty right "not as a series of individual rights, but as a guarantee of collective survival". (266) The second stage would then focus on the measures necessary to secure the viability and access to the resource that was promised to support collective survival. All of these approaches suggest that the court bypass the identification of mutual intention on narrow, specific rights in favour of greater attention to the intentions around and parameters of the working relationship to define the historic element of a treaty right.
The directions suggested above share much in common with Brian Slattery's theory of the generative structure of Aboriginal rights. (267) He defines generative rights as "rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change". (268) According to Slattery, Aboriginal rights consist of two elements: core generic rights that are common to all Aboriginal peoples, and specific rights, which develop through treaties and other processes to be distinctive to particular Aboriginal groups. These rights are identified by courts through "principles of recognition", which take account of historical intersocietal law and the emergence of generic rights to "provide the point of departure for any modern inquiry into the existence of Aboriginal rights and a benchmark for assessing the historical scope of indigenous dispossession and deprivation." (269) The modern and adaptive aspects of the rights are then identified through principles of reconciliation, which guide the transit of the historic rights through changes such as the community's contemporary needs, changes to implicated lands and resources, and broader societal and third-party interests. (270) Slattery's approach accomplishes several things that have been suggested as desirable directions for the conceptualization and interpretation of treaties and treaty rights. First, by bridging the treaty term with the longer history of Aboriginal rights as products of intersocietal practices and law, he brings the genealogy of the treaty to bear on the interpretation of the treaty itself and the right that is protected under section 35. But in the generative model, history informs but is not determinative. History is not the sole constitutive element of the right and the articulation of rights does not strain history for answers it may not be able to produce. In place of the sole emphasis on history, Slattery's account introduces greater transparency and specificity around the normative character of Aboriginal and treaty rights through encouraging the development of explicit principles of recognition and reconciliation. (271) This approach provides a more transparent, and therefore more readily debated, account of why Aboriginal and treaty rights should be protected. Regardless of whether one agrees with these principles, this transparency is critical in shifting treaty rights litigation away from its empirical fixation on the past and exploring the appropriate interpretive principles for serving the ever-debatable ends of justice in the present. (272) Finally, Slattery's approach also attends to an aspect of Aboriginal rights jurisprudence that is largely missing in the treaty context, which is the need to support negotiations. He argues that in light of the diverse interests involved in the principles of reconciliation, "certain Aboriginal rights cannot be implemented in their entirety by the courts but require the negotiation of modern treaties", (273) emphasizing the need to negotiate the resolution of Aboriginal title specifically.
Two differences from Slattery's approach are proposed in the preceding discussion. First, I proposed that the requirement of negotiation to bring the historic right into the modern form applies equally to treaty rights. Taking note of the remarkable uniformity of scholars who envision treaties as living relationships involving ongoing negotiations, negotiated settlements to treaty rights are imperative. Envisioned as part of the definition of the treaty right itself, rather than as a manner by which the Crown might justify an infringement (within its proper jurisdiction), negotiated settlements of historic treaty rights are required to reinvigorate the treaty relationship. Only through the imposition of consultation obligations in relation to "taking up" clauses has the dialogic element of treaty rights and processes been recognized. (274) This lack of attention is reminiscent of the colonial hangover that continues to characterize treaty histories, discussed above. In these accounts, treaties are a fait accompli; there can be no need to negotiate if treaty rights have already been negotiated. (275) Negotiated approaches to treaty rights--their modern scope, nature, and implementation--are as necessary in treaty contexts as in non-treaty contexts. Second, the discussion above proposed a shift in focus regarding remedies. The remedial focus should not be on the treaty right itself, but on the treaty relationship. As such, and in the absence of other specialized forums designated by Parliament, courts that are asked to resolve treaty rights disputes should supervise the negotiation of the contemporary form and accommodation of the rights they identify and step in to resolve the modern form of these rights only after negotiations fail. (276)
This paper has travelled a long road to consider the conceptualization of treaties in history and then in law, and evaluate them against constitutional narratives that rely on treaties and treaty processes to suggest post-imperial foundations for the modern state of Canada. In spite of several decades of public commissions and scholarship articulating and advocating for understanding treaties as living, evolving relationships, these directions have yet to be adequately incorporated into treaty narratives in history or law. Historical treatments of specific treaties show greater attention to Indigenous agency, but this highly contextual scholarship is not fully reflected in surveys of the vast scope of treaty-making experience in Canadas history. This experience continues to be organized around colonial interests and landmarks. To move beyond such colonial hangovers, I have argued that Indigenous understandings of treaty histories must be incorporated and respected, which will be facilitated by discarding subject matter classifications such as peace and friendship versus land cession treaties, and chronological lines, such as pre- and post-confederation versus modern treaties. I also argued that, as iterative and cumulative processes, treaty histories must include both fur trade ordering and modern quasi-treaty developments. An inclusive approach has the benefit of incorporating additional geographies and Indigenous forms of treaty relations more centrally in treaty histories. From these arguments, I suggested that treaty-making histories in Canada would be better represented by surveys that attend to the difference between significant moments of transformation versus the reiteration of existing relationships and are thus capable of expressing the evolving nature of treaty relations.
Similarly, legal treatments of treaties have not fully discarded 19th-century characterizations of treaties as a matter of executive goodwill rather than processes and relationships that were and are an essential contribution to the founding of the state. While the duty to consult jurisprudence suggests that treaties involve ongoing processes that support the reconciliation of Indigenous and Crown sovereignties, the treaty rights cases in the post-1982 era do not support a similar vision. By focusing the inquiry on common intention as coalescing around particular treaty terms, lead cases such as Marshall and Marshall; Bernard since 1982 have disconnected treaty rights from treaty relationships, demonstrating an approach that situates treaty rights as empirically discoverable terms of a fully reconciled relationship. Treaty rights as the factual terms of a largely fictional original consent demands that those historical moments be carried into the constitutional present without attention to problems that stem from implementation, disagreements about the scope of treaty rights and relationships, or the normative basis for honouring those past commitments.
Drawing on similar critiques and prescriptions by other legal scholars, I suggest an approach to the treaty rights jurisprudence that attends to historical interpretation of mutual intentions to enter into and maintain treaty relations but does not rely on common intentions regarding the meaning and scope of the terms of that relationship to define treaty rights. Where Brian Slattery has considered a history of intersocietal law as the historical backdrop informing the development of Aboriginal rights, I have instead encompassed the evolution of intersocietal law in a treaty framework, emphasizing the negotiated nature of these intersocietal foundations and the iterative processes between negotiated moments as part of treaty processes more generally. This move expands the historical context against which treaty practices might be identified, drawing the historical argument for an inclusive approach to histories into law. It also builds on constitutional narratives of treaty as relationship that promise an alternative to Imperial constitutional foundations. From these positions, I argue that treaty rights must be interpreted with a view to reinvigorating treaty relationships, and that such an approach demands that the parties negotiate the modern parameters of a treaty right under court supervision. Thus, the courts' role in interpreting treaty rights maintains attention to the historical substance of the parameters and terms of treaty relationships but is reoriented to supporting constitutional processes--and improved treaty relationships--in the present.
By tracing these concerns through both law and history, common themes emerge. The challenge presented by the constitutional narratives of treaties is to resist treaties as moments of resolution and embrace treaties as potentially encompassing as much disagreement as agreement. This vision is perhaps more of a challenge to law than history. In the latter, there is no need to finally resolve historical disputes. In law, however, resolving disputes is precisely what courts are called upon to do. Further, the challenge of managing a national narrative that encompasses deep disagreements about the founding of the state and the legitimacy of its current authority should not be understated. The courts, I suggest, have a privileged role in contributing to this narrative. As is common in the field of Aboriginal law, treaty rights disputes call upon the courts to resolve disputes that go to the foundations of the Canadian constitutional order. Such tasks demand that courts muster all of the creativity of the law that is available to them, including fashioning new remedies from time to time. In this paper, I have provided the groundwork to support enlisting the courts' creative energies to interpret treaty rights as a support for ongoing treaty relationships, rather than as representing the terms of a long stale settlement. Through the duty to consult, the Supreme Court has recognized that the ground is always shifting in an agenda of reconciliation. Carrying this recognition into the treaty rights jurisprudence would go a long way to establishing a treaty jurisprudence capable of supporting the promise of treaties.
(1) R v Sioui,  1 SCR 1025, 70 DLR (4th) 427 [Sioui cited to SCR]; R v Marshall,  3 SCR 456, 177 DLR (4th) 513 [Marshall cited to SCR]; R v Morris, 2006 SCC 59,  2 SCR915 [Morris],
(2) Arthur J Ray, Telling It to the Judge: Taking Native History to Court (Montreal & Kingston: McGill-Queen's University Press, 2011) [Ray, Telling It]; JR (Jim) Miller, "History, the Courts and Treaty Policy; Lessons from Marshall and Nisga'a" in Jerry P White, Paul Maxim & Dan Beavon, eds, Aboriginal Policy Research: Setting the Agenda for Change (Ottawa: Thompson Educational, 2004) 29 [JR Miller, "Lessons"]; William C Wicken, Mi'kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (Toronto; University of Toronto Press, 2002) [Wicken, Mi'kmaq Treaties].
(3) See e.g. Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001); James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995) [Tully, Strange Multiplicity]; John Borrows, "Ground-Rules: Indigenous Treaties in Canada and New Zealand" (2006) 22:2 NZUL Rev 188 [Borrows, "Ground-Rules"]; James [sakej] Youngblood Henderson, "Empowering Treaty Federalism" (1994) 58 Sask L Rev 241 [Henderson, "Treaty Federalism"]; Report of the Royal Commission on Aboriginal Peoples: Looking Forward Looking Back, vol 1 (Ottawa: Minister of Supply and Services, 1996) [RCAP, vol 1]; Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol 2 (Ottawa: Minister of Supply and Services, 1996) [RCAP, vol 2]; Treaty 7 Elders and Tribal Council with Walter Hildebrandt, Sarah Carter & Dorothy First Rider, The True Spirit and Original Intent of Treaty 7 (Montreal & Kingston: McGill-Queens University Press, 1996) [Treaty 7 Elders]; Office of the Treaty Commissioner of Saskatchewan, Statement of Treaty Issues: Treaties as a Bridge to the Future (Saskatoon: Office of the Treaty Commissioner, 1998), online: <http://www.otc.ca/ publications/7>; Report of the Ipperwash Inquiry, vol 4 (Toronto: Government of Ontario, 2007) (Commissioner: Hon Sidney B Linden), online: <http://www.attorneygeneral.jus.gov.on.ca>; Felix Hoehn, Reconciling Sovereignties: Aboriginal Nations and Canada (Saskatoon: Native Law Centre at the University of Saskatchewan, 2012).
(4) For related arguments regarding the need to reconsider how history shapes Aboriginal and treaty rights, see Brian Slattery, "The Generative Structure of Aboriginal Rights" (2007) 38 Sup Ct L Rev 595 [Slattery, "Generative Structure"]; Mark D Walters, "Brightening the Covenant Chain: Aboriginal Treaty Meanings in Law and History after Marshall (2001) 24 Dal LJ 75 [Walters, "Covenant Chain"]; John Borrows, "(Ab)Originalism and Canada's Constitution" (2012) 258 Sup Ct L Rev (2d) 351 [Borrows, "(Ab)Originalism"].
(5) Dwight Newman has suggested that the development of the duty to consult may ultimately impede the development of Aboriginal rights doctrines, which define the scope of any duty to consult. See Dwight G Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich, 2009) at 26-27.
(6) See e.g. Justine Hunter, "Treaty commissioner suggests shutdown", The Globe and Mail (13 Oct 2011), SI; James M Lornie, Report on Acceleration of BC Common Table Treaty Negotiations, submitted to the Minister of Aboriginal Affairs and Northern Development (2011) [unpublished], online: First Nations Summit <http://www.fns.bc.ca> [Lornie Report], It remains to be seen whether the recent declaration of Aboriginal title in Tsilhqot'in Nation v British Columbia, 2014 SCC 44, 459 NR 287 [Tsilhqot'in] will provide the catalyst required to revive the treaty process in British Columbia.
(7) See e.g. Inuit of Nunavut v Canada (Attorney General), 2012 NUCJ 11,  3 CNLR 210, rev'd 2014 NUCA 2, 2014 CarswellNun 14 (WL Can) [Nunavut].
(8) See e.g. PG McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford: Oxford University Press, 2004) [McHugh, Aboriginal Societies] (the common law doctrine of Aboriginal title did not emerge as law until the 1970s); Mark Hickford, '"Vague Native Rights to Land': British Imperial Policy on Native Title and Custom in New Zealand, 1837-53" (2010) 38:2 Journal of Imperial and Commonwealth History 175.
(9) See e.g. Mark D Walters, "Histories of Colonialism, Legality, and Aboriginality" (2007) 57:4 UTLJ 819 [Walters, "Histories of Colonialism"]. Other scholars who have emphasized the legal and historical continuity of Aboriginal rights in their work include Kent McNeil, Brian Slattery, and John Borrows.
(10) See citations in supra note 2; Alex Reilly & Ann Genovese, "Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence" (2004) 3 Indigenous LJ 19; Joel R Fortune, "Construing Delgamuukw: Legal Arguments, Historical Argumentation, and the Philosophy of History" (1993) 51:1 UT Fac L Rev 80.
(11) See e.g. John Borrows, "Listening for a Change: The Courts and Oral Tradition" (2001) 39:1 Osgoode Hall LJ 1; Val Napoleon, "Delgamuukw: A Legal Straightjacket for Oral Histories?" (2005) 20:2 CJLS 123 [Napoleon, "Straightjacket"]; Bruce Granville Miller, Oral History on Trial: Recognizing Aboriginal Narratives in the Courts (Vancouver: UBC Press, 2011) [B Miller]; Dipesh Chakrabarty, "Reconciliation and Its Historiography: Some Preliminary Thoughts" (2001) 7:1 Cultural Studies Review 6 [Chakrabarty, "Reconciliation and Its Historiography"]; Miranda Johnson, "Honest Acts and Dangerous Supplements: Indigenous Oral History and Historical Practice in Settler Societies" (2005) 8:3 Postcolonial Studies 261.
(12) See e.g. Jeremy Waldron, "The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus" (2006) 11:2 Otago L Rev 161, and regarding Aboriginal rights more generally, Jeremy Waldron, "Indigeneity? First Peoples and Last Occupancy" (2003) 1 New Zealand Journal of Public and International Law 55; Dwight G Newman, "Prior Occupation and Schismatic Principles: Toward a Normative Theorization of Aboriginal Title" (2007) 44:4 Alta L Rev 779; Duncan Ivison, Postcolonial Liberalism (Cambridge, UK: Cambridge University Press, 2002); Tully, Strange Multiplicity, supra note 3; Will Kymlicka & Bashir Bashir, eds, The Politics of Reconciliation in Multicultural Societies (Oxford: Oxford University Press, 2008); James Tully, Public Philosophy in a New Key (Cambridge, UK: Cambridge University Press, 2008) vol 1.
(13) Macklem, supra note 3 at 156.
(14) R v Simon,  2 SCR 387, 24 DLR (4th) 390 [Simon cited to SCR] ("an Indian treaty ... is an agreement sui generis which is neither created nor terminated according to the rules of international law" at 404).
(15) In Sioui, supra note 1, the treaty in issue predated the Royal Proclamation of 1763 and was primarily concerned with peace and alliance between the Huron and the British. The Court commented that "[a]t the time with which we are concerned [Crown] relations with Indian tribes fell somewhere between the kind of relations conducted between sovereign states and the relations that such states had with their own citizens" [ibid at 1038). The sui generis approach permitted the Court to avoid difficult issues regarding the status of the Crown's sovereignty at the time (not yet established, as the Attorney General for Quebec pointed out). It should also be noted that these concerns arise from the present construction of state sovereignty in international law and that the law of nations in the mid- 18th century might have evaluated the capacity of Indigenous nations differently.
(16) Henderson, "Treaty Federalism", supra note 3; Kiera L Ladner, "Treaty Federalism: An Indigenous Vision of Canadian Federalisms" in Francois Rocher & Miriam Smith, eds, New Trends in Canadian Federalism, 2d ed (Peterborough, Ont: Broadview Press, 2003) 167. Jean Leclair has pointed out weaknesses in the treaty federalism narrative, and in particular that it fails to bring non-treaty Indigenous people (i.e., Metis people and non-status and urban Aboriginal people) into the revamped federation for which it advocates. See Jean Leclair, "Federal Constitutionalism and Aboriginal Difference" (2006) 31:2 Queens LJ 521. His view is in part premised on what I would argue is an overly narrow understanding of treaties. Some of his concerns may be addressed by the broad view of treaties discussed in this paper. Other concerns raised by Leclair relate to how indigeneity has been constructed by law and policy, resulting in different and uneven access to constitutional protections among Indigenous peoples. These topics are beyond the scope of this paper. See generally John Borrows, "Physical Philosophy: Mobility and the Future of Indigenous Rights" in Benjamin J Richardson, Shin Imai & Kent McNeil, eds, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart, 2009) 403; Val Napoleon, "Aboriginal Discourse: Gender, Identity, and Community" in Richardson, Imai & McNeil, ibid, 223; Sebastien Grammond, Identity Captured by Law: Membership in Canada's Indigenous Peoples and Linguistic Minorities (Montreal & Kingston: McGill-Queen's University Press, 2009).
(17) Henderson, "Treaty Federalism", supra note 3, referring to Constitution Act, 1867 (UK), 30 & 31 Viet, c 3, reprinted in RSC 1985, App II, No 5 [Constitution Act, 1867].
(18) James (Sa'ke'j) Youngblood Henderson, Treaty Rights in the Constitution of Canada (Toronto: Thomson Carswell, 2007) [Henderson, Treaty Rights].
(19) Ibid at 1005.
(20) See e.g. Borrows, "Ground-Rules" supra note 3; Macklem, supra note 3; Kent McNeil, "Negotiated Sovereignty: Indian Treaties and the Acquisition of American and Canadian Territorial Rights in the Pacific Northwest" in Alexandra Harmon, ed, The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (Seattle: University of Washington Press, 2008) [Harmon, Power of Promises] 35; Gordon Christie, "Justifying Principles of Treaty Interpretation" (2000) 26:1 Queen s LJ 143.
(21) Walters, "Covenant Chain" supra note 4 at 93.
(22) Ibid at 94.
(23) James Tully, "Consent, Hegemony, and Dissent in Treaty Negotiations" in Jeremy Webber & Colin M Macleod, eds, Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver: UBC Press, 2010) 233 at 238 [Tully, "Consent"].
(24) Tully, Strange Multiplicity, supra note 3 at 116-17 ff.
(25) Macklem, supra note 3 at 155. See also Henderson, Treaty Rights, supra note 18.
(26) See e.g. Mark L Stevenson, "Visions of Certainty: Challenging Assumptions" in Speaking Truth to Power: A Treaty Forum (Ottawa: Law Commission of Canada, 2001) 113: Andrew Woolford, Between Justice and Certainty: Treaty Making in British Columbia (Vancouver: UBC Press, 2005) [Woolford, Treaty Making in BC], Ravi de Costa, "History, Democracy, and Treaty Negotiations in British Columbia" in Harmon, Power of Promises, supra note 20,297.
(27) See e.g. John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 149-50; Walters, "Covenant Chain", supra note 4 at 82.
(28) Ibid at 81 .
(29) Ibid at 82-83.
(30) RCAP, vol 1, supra note 3 at 37. See also Robert A Williams Jr, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (New York: Oxford University Press, 1997) [Williams, Linking Arms].
(31) See e.g. Treaty 7 Elders, supra note 3 at 7; Williams, Linking Arms, supra note 30 at 40-61.
(32) See e.g Treaty 7 Elders, supra note 3 at 7 (peace alliances were "binding for all time").
(33) See e.g. Sioui, supra note 1 at 1063 :
It would be contrary to the general principles of law for an agreement concluded between the English and the French to extinguish a treaty concluded between the English and the Hurons. It must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred. The very definition of a treaty thus makes it impossible to avoid the conclusion that a treaty cannot be extinguished without the consent of the Indians concerned.
(34) The sacredness of treaties also connects treaties to religion, made more apparent through ceremonies that accompany treaty making. Such ceremonies (e.g., pipe ceremonies) often involve connecting the actions of the leaders to spiritual realms, situating them in creation and recalling the sources or nature of their authority. While beyond the scope of this paper, it is also helpful to recall the deep religious roots of European political authority in Europe as well as in America. Regarding the latter, see e.g. Brian Slattery, "Paper Empires: The Legal Dimensions of French and English Ventures in North American" in John McLaren, AR Buck & Nancy E Wright, eds, Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press, 2005) 50. Thus, by recalling the sources of political authority, the sacredness of treaties presents another dimension of constitutionality.
(35) Being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982].
(36) For a related discussion of Indigenous constitutional practices, see Borrows, "(Ab)Originalism", supra note 4.
(37) John S Long, Treaty No 9: Making the Agreement to Share the Land in Far Northern Ontario in 1905 (Montreal & Kingston: McGill-Queen's University Press, 2010) at 346, citing Brian Craik & Byers Casgrain, "Making a Living in the Bush: Land Tenure at Waskaganish" (1986) 28:1-2 Anthropologica 175.
(38) Treaty 7 Elders, supra note 3 at 7.
(39) RCAP, vol 1, supra note 3 at 121.
(40) Walters, "Covenant Chain", supra note 4 at 82-85.
(41) Henderson, Treaty Rights, supra note 18 at 228.
(42) See Borrows, "Ground-Rules," supra note 3; Walters, "Covenant Chain" supra note 4 at 94.
(43) Duncan Ivison, "Consent or Contestation" in Webber & Macleod, supra note 23, 188 at 193-94 [emphasis in original].
(44) See e.g. Rene Fumoleau, As Long as this Land Shall Last: A History of Treaty 8 and Treaty II (1870-1939) (Calgary: University of Calgary Press, 2004); Long, supra note 37; Michael Coyle, "Marginalized by Sui Generis? Duress, Undue Influence and Crown-Aboriginal Treaties" (2008) 32 Man LJ 34.
(45) See e.g. Murray Browne, "The Promise of Delgamuukw and the Reality of Treaty Negotiations in British Columbia" in Maria Morellato, ed, Aboriginal Law since Delgamuukw (Aurora, Ont: Cartwright Group, 2009) 465; Woolford, Treaty Making in BC, supra note 26; Gabrielle A Slowey, "Unfinished Business: Self-Government and the James Bay Northern Quebec Agreement Thirty Years Later" in Yale D Belanger, ed, Aboriginal Self-Government in Canada: Current Trends and Issues, 3d ed (Saskatoon: Purich, 2008) 206; Lornie Report, supra note 6.
(46) Tully, "Consent", supra note 23 at 240-41.
(47) Ibid at 247.
(48) Ibid at 249 [emphasis in original].
(49) Andrew Schaap, "Agonism in Divided Societies" (2006) 32:2 Philosophy & Social Criticism 255 at 271.
(50) For the adaptation of agonism to address democratic politics in pluralist societies, see Monique Deveaux, "Agonism and Pluralism" (1999) 25:4 Philosophy & Social Criticism 1.
(51) According to Schaap, the idea of "the political" represented here is more Arendt than Mouffe. Mouffe's view of the political embeds dynamics of ongoing disagreement (perhaps the treaty moment that is), while theorists have interpreted Arendt's view of the political as expressing a more of utopian, aspirational, or transformative "we" (capturing perhaps the hopes and expectations embedded in treaty processes and why such processes are so often perceived as a disappointment). See Andrew Schaap, "Political Theory and the Agony of Politics" (2007) 5:1 Political Studies Review 56.
(52) Robert M Cover, "Foreward: Nomos and Narrative" (1983) 97:1 Harv L Rev 4.
(53) Williams, Linking Arms, supra note 30 at 28.
(54) See e.g. Walters, "Covenant Chain", supra note 4 at 88-89.
(55) Brian Slattery, "The Organic Constitution: Aboriginal Peoples and the Evolution of Canada" (1996) 34:1 Osgoode Hall LJ 101[Slattery, "Organic"]; Jeremy Webber, "Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples" (1995) 33:4 Osgoode Hall LJ 623 [Webber, "Relations"].
(56) Slattery, "Organic", supra note 55 at 109.
(57) Webber, "Relations", supra note 55 at 638.
(58) See e.g. Patrick J Monahan, Constitutional Law, 3d ed (Toronto: Irwin Law, 2006) at 447-48:
Aboriginal rights and the Treaty rights of Aboriginal peoples differ in both origins and structure. Whereas Aboriginal rights flow from the historic use and occupation of land by Aboriginal peoples, Treaty rights are those contained in official agreements between the Crown and Aboriginal peoples. Treaties thus create enforceable obligations based on the mutual consent of the parties.
Leonard Rotman's critique of the transfer of the Sparrow justification test from Aboriginal rights to treaty rights is similarly premised on treaty rights as negotiated in origin. See Leonard I Rotman, "Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test" (1997) 36:1 Alta L Rev 149.
(59) Webber does not address the relationship between treaty and other Aboriginal rights explicitly. However, his account of intercommunal normativity considers early land purchase agreements and other instances of explicit negotiation, which indicates fluidity between negotiated and customary norms. See Webber, "Relations", supra note 55. A similar calibre of negotiations will be discussed later in this paper as examples of early treaties.
(60) Subsection 35(1) of the Constitution Act, 1982, supra note 35, recognizes and affirms "existing aboriginal and treaty rights of the aboriginal peoples of Canada".
(61) JR Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada (Toronto: University of Toronto Press, 2009) at xi [JR Miller, Compact].
(62) Sarah Carter, "Aboriginal People of Canada and the British Empire" in Phillip Buckner, ed, Canada and the British Empire (Oxford: Oxford University Press, 2008) 200 at 200 [Carter, "Aboriginal People"].
(63) See e.g. Fumoleau, supra note 44; George FG Stanley, "The Indian Background of Canadian History" (1952) 31:1 Report of the Annual Meeting of the Canadian Historical Association 14. For brief discussions of this type of historiography, see Jean Friesen, "Magnificent Gifts: The Treaties of Canada with the Indians of the Northwest 1869-76" (1986) 1 Transactions of the Royal Society of Canada (5th) 41; Long, supra note 37.
(64) Paul W DePasquale, "Refractions of the Colonial Past in the Present" in Paul W DePasquale, ed, Natives & Settlers, Now & Then: Historical Issues and Current Perspectives on Treaties and Land Claims in Canada (Edmonton: University of Alberta Press, Canadian Review of Comparative Literature/Revue Canadienne de Litterature Compared, 2007) [DePasquale, Natives & Settlers] xv at xxiii-xxiv.
(65) See e.g. Friesen, supra note 63; Robert J Talbot, Negotiating the Numbered Treaties: An Intellectual and Political Biography of Alexander Morris (Saskatoon: Purich, 2009); Sarah Carter, Lost Harvests: Prairie Indian Reserve Farmers and Government Policy (Montreal & Kingston: McGill-Queen's University Press, 1990) at 54-57.
(66) See e.g. Daniel K Richter, "Whose Indian History?" (1993) 50:2 William and Mary Quarterly (3d) 379; James Axtell, Natives and Newcomers: The Cultural Origins of North America (New York: Oxford University Press, 2001); James H Merrell, Into the American Woods: Negotiators on the Pennsylvania Frontier (New York: WW Norton & Co, 1999); Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815 (Cambridge, UK: Cambridge University Press, 1991) [R White, Middle Ground]; Germaine Warkentin & Carolyn Podruchny, eds, Decentring the Renaissance: Canada and Europe in Multidisciplinary Perspective, 1500-1700 (Toronto: University of Toronto Press, 2001); John Sutton Lutz, Makuk: A New History of Aboriginal-White Relations (Vancouver: UBC Press, 2008).
(67) Alexandra Harmon, "Introduction: Pacific Northwest Indian Treaties in National and International Historical Perspective" in Harmon, Power of Promises, supra note 20, 3 at 17.
(68) See e.g. John C Weaver, The Great Land Rush and the Making of the Modern World, 1650-1900 (Montreal & Kingston: McGill-Queen's University Press, 2003) at 133-77; Dorothy V Jones, License for Empire: Colonialism by Treaty in Early America (Chicago: University of Chicago Press, 1982); Patricia Seed, "Three Treaty Nations Compared: Economic and Political Consequences for Indigenous People in Canada, the United States, and New Zealand" in DePasquale, Natives & Settlers, supra note 64, 17.
(69) See e.g. Sidney L Harring, "'There Seemed to Be No Recognized Law': Canadian Law and the Prairie First Nations" in Louis A Knafla & Jonathan Swainger, eds, Laws and Societies in the Canadian Prairie West, 1670-1940 (Vancouver: UBC Press, 2005) 92; Carter, "Aboriginal People", supra note 62 at 215 (regarding the numbered treaties in particular).
(70) For the text of the treaty, see James Bay Treaty--Treaty No 9 (Made in 1905 and 1906) and Adhesions Made in 1929 and 1930, online: <http://www.aad nc-aandc.gc.ca/eng/1100100028863/1100100028864> [Treaty 9].
(71) Long, supra note 37 at 3.
(72) The adhesion of McLeod Lake Indian Band to Treaty 8, signed in 2000, also illustrates that historic treaties can be a matter of active present expansion and/or negotiation. See McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement, McLeod Lake Indian Band, Canada and British Columbia, 27 March 2000, online: McLeod Lake Indian Band <http://www.mlib.ca/treaty-8>. For the text of the historic treaty, see Treaty No 8 Made June 21, 1899, online:
<http://www.aadnc-aandc.gc.ca/eng/! 100100028813/1100100028853> [Treaty 8]. See also Robert Irwin, "Treaty 8: An Anomaly Revisited" (2000) 127 BC Studies 83 (Irwin notes that the agreement was reached in 1999). The adhesion settled the Band's land claims, and now the Band is pursuing self-government through the BC treaty process. See BC Treaty Commission--MacLeod Lake Indian Band, online: <http://www.bctreaty.net>.
(73) See Donald Purich, Our Land: Native Rights in Canada (Toronto: James Lorimer & Co, 1986) at 96. This number is specific to what Purich calls "land deals" struck since the 1700s. He also notes that "[o]ver half a dozen treaties of peace and friendship were signed before 1763 between the British and the Indians" (ibid). Even with this large number, Robert J Surtees notes that, prior to the modern treaty-making era, "[o]nly about one-half the lands of Canada have been the object of a formal cession agreement, or treaty, between the Indians and federal government": Robert J Surtees, "Canadian Indian Treaties" in Wilcomb E Washburn, ed, Handbook of North American Indians: History of Indian-White Relations, vol 4 (Washington, DC: Smithsonian Institution, 1978) 202 at 202.
(74) See DN Sprague, "Canada's Treaties with Aboriginal Peoples" (1995) 23 Man LJ 341.
(75) See e.g. Henderson, "Treaty Federalism", supra note 3 at 248, who divides treaty models into Georgian and Victorian, perhaps as a way to emphasize the relationship between Monarch and First Nation, but notes the Victorian model as post-confederation rather than post-1850. See also Hamar Foster, "Canada: 'Indian Administration' from the Royal Proclamation of 1763 to Constitutionally Entrenched Aboriginal Rights" in Paul Havemann, ed, Indigenous Peoples' Rights in Australia, Canada, & New Zealand (Oxford: Oxford University Press, 1999) 351 [Foster, "Indian Administration"]; Patrick Macklem & Carol Rogerson et al, eds, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery, 2010) at 613. The latter two divide treaties into three eras: pre-confederation, post-confederation, and modern.
(76) George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No 1 [Royal Proclamation], For examples of treatments in which 1850 plays a prominent role, see Peter W Hogg, Constitutional Law of Canada, 2012 student ed (Toronto: Carswell, 2012) at 28-34; Sprague, supra note 74; Mark D Walters, "Promise and Paradox: The Emergence of Indigenous Rights in Canada" in Richardson, Imai & McNeil, supra note 16, 21 at 34-35; Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney: Federation Press, 2008) at 48-51.
(77) Jones, supra note 68 at 97.
(78) For the text of these treaties, see 1752 Peace and Friendship Treaty Between His Majesty the King and the Jean Baptiste Cope, 22 Nov 1752, online: <http://www.aadnc-aandc.gc.ca/eng/1100100029040/1100100029041>; 1760-61 Peace and Friendship Treaties Between His Majesty the King and the LaHave Tribe of Indians, online <http://www.aadnc-aandc.gc.ca/eng/! 100100029046/1100100 029047> [1760-61 Treaties],
(79) Supra note 14.
(80) Supra note 1.
(81) Cited in Wicken, Mi'kmaq Treaties, supra note 2 at 118.
(82) Ibid at 118-30.
(83) Ibid at 127.
(84) See Long, supra note 37 at 32, citing James Morrison, The Treaty-Making Process and the Participation of the Ontario Government in the Signing of Treaty No. 9 (1978) [unpublished] at 8. See also JR Miller, Compact, supra note 61.
(85) See e.g. JR Miller, Compact, ibid-, Foster, "Indian Administration", supra note 75.
(86) JR Miller, Compact, supra note 61 at 66-122; Foster, "Indian Administration" supra note 75 at 359.
(87) JR Miller, Compact, supra note 61. See also Long, supra note 37 at 24-26.
(88) Miller notes that First Nations began demanding reserves as they grew more skeptical of the Crowns promises in light of increasing settler pressures and lax enforcement of earlier agreements. See JR Miller, Compact, supra note 61 at 103. Commitments to set aside reserves first appear in the text of a treaty in the 1850 Robinson Treaties, but earlier treaties also created reserves as part of cession negotiations: e.g., the reservation of Manitoulin Island in the 1836 Treaty negotiated by Sir Francis Bond Head (ibid at 106-09) and Treaty 29 between the Crown and the Chippewas in 1829, as discussed in Chippewas of Sarnia Band v Canada (Attorney General) (2000), 51 OR (3d) 641 at paras 66-79, 195 DLR (4th) 135 (CA) [Chippewas of Sarnia]. The Haldimand Tract of 1784, purchased from the Mississauga of the Credit and granted to the Six Nations for their loyalty to the British, is also cited as an early reserve. See RCAP, vol 1, supra note 3, ch 6.
(89) Hamar Foster and Alan Grove argue that there may be a 15th Douglas Treaty made in 1862 between the Cowichan and Governor Douglas. Their archival research shows that Governor Douglas made treaty-like commitments and promises to deliver the necessary presents and compensation to the Cowichan to facilitate settlement on Cowichan lands by non-Aboriginal people. Governor Douglas's promises and commitments were not fulfilled. See Hamar Foster & Alan Grove, "'Trespassers on the Soil': United States v. Tom and A New Perspective on the Short History of Treaty Making in Nineteenth-Century British Columbia" (2003) Summer: 138-9 BC Studies 51.
(90) Miller discusses these BC treaties as distinct from other Canadian traditions, noting that Douglas was provided with sample agreements from the New Zealand Company's dealings with the Maori rather than any samples from Upper Canada. See JR Miller, Compact, supra note 61 at 147. Although the BC experience is undoubtedly distinct, experience in other parts of the British Empire informed activities in the east as well. Canada's treaty-making traditions need to be understood as developing out of or alongside American, French, and other precedents.
(91) The legality of the Company's Charter was always contentious, but never finally tested in a court of law. See generally Kent McNeil, "Sovereignty and the Aboriginal Nations of Rupert's Land" (1999) 37 Manitoba History 2; Hamar Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act, Cases" (1992) 21:3 Man LJ 343: Hamar Foster, "Long-Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas, 1763-1859" (1990) 34:1 Am J Legal Hist 1; Kenneth M Narvey, "The Royal Proclamation of 7 October 1763: The Common Law, and Native Rights to Land within the Territory Granted to the Hudson's Bay Company" (1974) 38:1 Sask L Rev 123: Geoffrey S Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (DJur Thesis, York University, 1981) [unpublished] at 1309-73; Howard Robert Baker II, Law Transplanted, Justice Invented: Sources of Law for the Hudson's Bay Company in Rupert's Land, 1670-1870 (MA Thesis, University of Manitoba, 1996) [unpublished] ch 2; Edward Cavanagh, "A Company with Sovereignty and Subjects of its Own? The Case of the Hudson's Bay Company, 1670-1763" (2011) 26:1 CJLS 25.
(92) He notes that even the North West Company made a "formal" treaty at Thunder Bay when it meant to purchase land, but excludes this agreement from being "strictly speaking, a treaty" because the North West Company did not represent the Crown: JR Miller, Compact, supra note 61 at 87.
(93) Maps of Canadas historic treaties routinely leave the province of Quebec blank. See e.g. the Department of Aboriginal and Northern Affairs, which lists 18th-century peace and friendship treaties from the Maritimes in its resources on historical treaties, but no such treaties from Quebec. See Aboriginal Affairs and Northern Development Canada--Treaty Research Reports, online: <http://www.ainc-inac.gc.ca/ al/hts/tgu/index-eng.asp>, even though a list of resources about treaties in what became Quebec are provided elsewhere. See Aboriginal Affairs and Northern Development Canada--Bibliographies by Region--Quebec, online: <http://www.ai nc-inac.gc.ca/al/hts/res/rbi/qbc-eng.asp>.
(94) See e.g. R White, Middle Ground, supra note 66; Gilles Havard, The Great Peace of Montreal of 1701: French-Native Diplomacy in the Seventeenth Century, translated by Phyllis Aronoff & Howard Scott (Montreal & Kingston: McGill-Queen's University Press, 2001); Gilles Havard, Empire et metissages: lndiens et Francais dans le Pays d'en Plant, 1660-1715 (Sillery, Que, Paris; Septentrion, Presses de l'Universite Paris-Sorbonne, 2003).
(95) Sebastien Grammond, Les traites entre I'Etat canadien et les peuples autochtones (Cowansville, Que: Yvon Blais, 1995) ch 1. But see Narvey, supra note 91, who argues that ungranted, unceded lands within existing colonies and territories, such as Quebec, were subject to a similar reservation in favour of the Indians in spite of their geographic exception from the Indian provisions. For discussion of treaties and arrangements continuing Indigenous hunting rights, in accordance with the policy of the Royal Proclamation, see Michel Morin, L'Usurpation de la souverainete autochtone: Le cas des peuples de la Nouvelle-France et des colonies anglaises de E4merique du Nord (Quebec: Boreal, 1997) at 248-58.
(96) Whether Indigenous groups might be able to establish title to their lands within historic New France remains uncertain. See ibid at 259.
(97) See Sioui, supra note 1. The treaty in issue was made by General James Murray with the Huron of Lorette in 1760. For discussion of the treaty, see JR Miller, Compact, supra note 61 at 74-75; R v Cote,  3 SCR 139, 38 DLR (4th) 385 [Cote cited to SCR], The treaty right claim was based on a 1760 treaty at Swegatchy and Caughnawaga between the Algonquins and the British. The Supreme Court assumed but declined to make a determination regarding whether this treaty gave rise to a treaty right. See Cote, ibid at para 88.
(98) See Duane Thomson & Marianne Ignace, '"They Made Themselves Our Guests': Power Relationships in the Interior Plateau Region of the Cordillera in the Fur Trade Era" (2005) 146 BC Studies 3.
(99) Harring, supra note 69 at 102.
(100) Arthur J Ray, Jim Miller & Frank J Tough, Bounty and Benevolence: A History of Saskatchewan Treaties (Montreal & Kingston: McGill-Queen's University Press, 2000) at 3.
(101) Ray, Telling It, supra note 2 at 69 . Ray (ibid at 87) notes that Teitelbaum J did not address this argument in his dismissal of the land sharing arguments put forward by the Samson Indian Band and Nation in Victor Buffalo v Canada, 2005 FC 1622,  1 CNLR 100 [Victor Buffalo], aff'd Ermineskin Indian Band and Nation v Canada, 2006 FCA 415,  3 FCR 245, aff'd 2009 SCC 9,  1 SCR 222 (on appeal, the case was joined with a related action brought by the Ermineskin Indian Band and Nation and focused on claims that the federal Crown had breached its obligations in managing funds earned from oil and gas royalties).
(102) Ray, Miller & Tough, supra note 100 at 3-20. See also Long, supra note 37, ch 1; Thomson & Ignace, supra note 98; Janna Promislow, '"It Would Only be Just': A Study of Territoriality and Trading Posts along the Mackenzie River, 1800-27" in Lisa Ford & Tim Rowse, eds, Between Indigenous and Settler Governance (Abingdon, UK: Routledge, 2013) 35 [Promislow, "It Would Only be Just"].
(103) Ray, Miller & Tough, supra note 100 at 3-20. See also Long, supra note 37; Janna Promislow, "One Chief, Two Chiefs, Red Chiefs, Blue Chiefs: Newcomer Perspectives on Indigenous Leadership in Ruperts Land and the North-West Territories" in Hamar Foster, Benjamin L Berger & AR Buck, eds, The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: UBC Press for the Osgoode Society for Canadian Legal History, 2008) 55.
(104) Ray, Miller & Tough, supra note 100 at 8; for the text of the treaty, see Copy of Treaty No. 6 between Her Majesty the Queen and the Plain and Wood Cree Indians and other Tribes of Indians at Fort Carlton, Fort Pitt and Battle River with Adhesions, 1876, online: <http://www.aadnc-aandc.gc.ca/eng/1100100028710/1100100028783> [Treaty 6]. There are other specific terms in the treaties that might be connected, in a similar manner, to fur trade practices. For example, Indigenous traders were "outfitted" annually with the equipment for their fall and winter hunting and trapping needs and Treaties 4 through 11 included written terms securing gifts of ammunition and/or twine to support their hunting, fishing, and trapping activities. Educational promises and provisions regarding famine relief might also be explored. Regarding the latter, see ibid at 138-39.
(105) John E Foster, "Indian-White Relations in the Prairie West during the Fur Trade Period--A Compact?" in Richard T Price, ed, The Spirit of the Alberta Indian Treaties, 3d ed (Edmonton: University of Alberta Press, 1999) 181.
(106) Friesen, supra note 63 at 44 [emphasis in original].
(107) See Janna Promislow, '"Thou Wilt Not Die of Hunger ... for I Bring Thee Merchandise': Consent, Intersocietal Normativity, and the Exchange of Food at York Factory, 1682-1763" in Webber & Macleod, supra note 23, 77 [Promislow, "I Bring Thee Merchandise"].
(108) Discussed in Ray, Miller & Tough, supra note 100 at 4; JR Miller, Compact, supra note 61 at 12-14; Promislow, "I Bring Thee Merchandise", supra note 107 at 86-87.
(109) Promislow, "I Bring Thee Merchandise", supra note 107 at 87, n 44.
(110) JR Miller, Compact, supra note 61. See also Foster, "Indian Administration", supra note 75; Macklem, Rogerson & Bakan et al, supra note 75.
(111) See Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53,  3 SCR 103 [Little Salmon/Carmacks]; Quebec (Attorney General) v Moses, 2010 SCC 17,  1 SCR 557 [Moses]; Eastmain Band v Robinson (1992),  1 FC 501, 99 DLR (4th) 16 (CA), leave to appeal to SCC refused,  3 SCR vi, 104 DLR (4th) vii. In Special Rapporteur Miguel Alfonso Martinez's report for the UN, he avoids the term "treaties" in naming what are commonly identified in Canada as modern treaties, preferring instead to call them "constructive arrangements". This language choice signals the Rapporteurs view of these agreements as wholly domestic in nature and limited in terms of the reach of the negotiations (capable of establishing only delegated governmental powers), in contradistinction to the constitutional nature and international status of historic treaties that, in his assessment, were recognized under the Law of Nations. See Miguel Alfonso Martinez, Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, UNCHR Sub-Commission on Prevention of Discrimination and Protection of Minorities, 51st Sess, UN Doc E/CN.4/Sub.2/1999/20 at para 145. While I am sympathetic to the Rapporteur's concerns about the hegemonic frame within which so-called modern treaties are negotiated, my approach in this paper is to take an expansive view of treaties, bringing a variety of forms of negotiation under the umbrella of treaties rather than being concerned to identify a particular form or scope of agreement that may be called a treaty. As a result, my reference to "so-called" is intended to signal concerns regarding the categorization of "modern" rather than "treaty".
(112) See James Morrison, Treaty Research Report--Treaty No. 9 (1905-1906) (1986), online: <http://www.aadnc-aandc.gc.ca/eng/1100100028859>.
(113) Morrison, ibid, notes that the Treaty 9 adhesions were motivated in part by the need for bands to split into smaller units than the treaty bands created in 1905, to suit the governments reserve policy and to reflect the traditional hunting band's hunting groups. For some discussion regarding Treaty 9 adhesions, see Long, supra note 3737 at 84-91. The adhesion of the McLeod Lake Indian Band to Treaty 8 in 2000 is also a challenging case to fit into the standard understanding of the split between modern and historic. See Irwin, supra note 72.
(114) Little Salmon/Carmacks, supra note 111 at paras 9, 12.
(115) Ibid at para 116. UN Special Rapporteur Miguel Alfonso Martinez noted numerous conditions around the negotiation of the James Bay and Northern Quebec Agreement that give rise to concerns about the consensual nature of that agreement. See Martinez, supra note 111 at paras 137-38.
(116) See Promislow, "It Would Only be Just", supra note 102.
(117) Aboriginal Affairs and Northern Development Canada--Land Claims--The Government of Canadas Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, online: <http://www.aadnc- aandc.gc.ca/ eng/1100100031843>.
(118) See e.g. Henderson, "Treaty Federalism", supra note 3; Ladner, supra note 16.
(119) One might compare the shift to the Constitution Act, 1867, supra note 17, and note how little was specified in the text about how the provincial and federal governments might work together, amongst other things. Does this absence mean the Constitution Act, 1867 is unsophisticated?
(120) From limited co-management arrangements (James Bay and Northern Quebec, 1975; Gwich'in and Sahtu, 1993 and 1994 respectively) to independent legislative bodies (Nisga'a, 1998; Tli'Cho, 2005). For an overview of the comprehensive land claims process, see Christopher Alcantara, "To Treaty or Not to Treaty? Aboriginal Peoples and Comprehensive Land Claims Negotiations in Canada" (2008) 38:2 Publius 343.
(121) See e.g. JR Miller, Compact, supra note 61; Foster, "Indian Administration", supra note 75. Many of the developments discussed in this paragraph are very recent, following after Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73,  3 SCR 511 [Haida Nation]. It may be some time before they become absorbed into survey examinations of modern treaty making.
(122) For a related exploration in relation to New Zealand, see RP Boast, "Recognising Multi-Textualism: Rethinking New Zealand's Legal History" (2006) 37 VUWLR 547. Although Boast's exploration focuses on written agreements, his analysis points out how exclusive attention to the Treaty of Waitangi misses other important agreements, particularly from Maori perspectives, that also serve as "foundation[s] of relationships with the New Zealand State that endure to this day and a benchmark by which the Crowns behaviour can be evaluated" (ibid at 572).
(123) 2005 SCC 69,  3 SCR 388 [Mikisew Cree].
(124) Ibid at para 33.
(125) See e.g. relationship and revenue sharing agreements such as Quebec's Paix des Braves, online: Grand Council of the Crees--Critical Issues <http://www.gcc.ca/ issues/paixdesbraves.php>. Regarding enforceability issues, and in the context of agreements with Metis, see Jean Teillet, "A Tale of Two Agreements: Implementing Section 52(1) Remedies for the Violation of Metis Harvesting Rights" in Maria Morellato, supra note 45, 333.
(126) See British Columbia--Incremental Treaty Agreements, online: <http://www2.gov. bc.ca/gov/topic.page?id=21099B139A554865A42119D551BF046B>. The federal government has recently announced it will also pursue policy changes to support the negotiation of incremental treaties, as well as other "non-treaty" agreements. See Aboriginal Affairs and Northern Development Canada, News Release, "Minister Valcourt Announces Measures to Advance Treaty Negotiations and Reconciliation" (28 July 2014), online: <http://news.gc.ca/web/article-en.do?nid=871349>.
(127) See British Columbia--Reconciliation & Other Agreements, online: <http://www2. gov.bc.ca/gov/topic.page?id=496EFFA5F6C14CB6B9186F4C9A959A50>.
(128) See Browne, supra note 45; Lornie Report, supra note 6. See also Hul'qumi'num Treaty Group v Canada, Inter-Am Comm HR, No 105/09; Annual Report of the Inter-American Commission on Human Rights: 2009, OEA/Ser.L/V/II.Doc.51 corr.1; Andrew Woolford, "Transition and Transposition: Genocide, Land and the British Columbia Treaty Process" (2011) 4:2 New Proposals: Journal of Marxism and Interdisciplinary Inquiry 67 [Woolford, "Transition and Transposition"]. It remains to be seen whether Tsilhqot'in, supra note 6, in which the Supreme Court declared Aboriginal title to the area claimed by the Xeni Gwet'in First Nation on behalf of the Tsilhqot'in Nation, will be a sufficient catalyst to reinvigorate British Columbia's treaty process.
(129) For a summary, see Sprague, supra note 74.
(130) See e.g. Foster, "Indian Administration", supra note 75.
(131) See Martinez, supra note 111 at para 122.
(132) See e.g. RCAP, vol 2, supra note 3 at 45; Treaty 7 Elders, supra note 3; RJ Surtees, Indian Land Surrenders in Ontario 1763-1867 (Ottawa: Indian and Northern Affairs Canada, 1984) at 10; Sharon H Venne, "Treaties Made in Good Faith" in DePasquale, Natives & Settlers, supra note 64, 1. For discussion of these claims in the treaty jurisprudence, see infra note 139 and accompanying text.
(133) For example, the treaty records from Treaty 1 and 3 include requests for compensation for lands and resources and Treaty 4 includes discussion of grievances with the Hudsons Bay Company, including the Company's sale of the territory to the Dominion. See Friesen, supra note 63. For the Treaty 4 record, see Hon Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, including the Negotiations on Which They Were Based, and Other Information Relating Thereto (Toronto: Belfords, Clarke & Co, 1880) at 99-107.
(134) Friesen, supra note 63 at 43, 49 [emphasis in original, citation omitted],
(135) Harring, supra note 69 at 102.
(136) Ibid at 104-05 .
(137) See Kent McNeil, "Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion" (2001) 33:2 Ottawa L Rev 301 at 306.
(138) But note that Saskatchewan Elders have expressed the view that substantial agreement was reached at treaty negotiations and so, according to Harold Cardinal and Walter Hildebrandt, "what is at issue is not whether or not treaties exist, but whether a mutually acceptable record of them can now be agreed upon and implemented": Harold Cardinal & Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream Is that Our Peoples Will One Day Be Clearly Recognized as Nations (Calgary: University of Calgary Press, 2000) at 59. Donald Purich notes that there has been one challenge to the formation of a treaty that failed at the appeal level but does not identify the case. See Purich, supra note 73 at 110.
(139) Victor Buffalo, supra note 101. Justice Teitelbaum rejected their contention based on the evidence he heard and his strong preference for the experts that relied on the written record (ibid at paras 20, 451-532). For discussion, see Ray, Telling It, supra note 2 at 85-87.
(140) John Borrows, "Wampum at Niagara: the Royal Proclamation, Canadian Legal History, and Self-Government" in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: UBC Press, 1997) 155. See also JR Miller, "Compact, Contract, Covenant: The Evolution of Indian Treaty-Making" in Ted Binnema & Susan Neylan, eds, New Histories for Old: Changing Perspectives on Canadas Native Pasts (Vancouver: UBC Press, 2007) 66 at 78-79 (regarding documentary evidence that may support Borrows's historical claim).
(141) Chippewas of Sarnia Band v Canada (Attorney General), 40 RPR (3d) 49,  OJ no 1406 [cited to RPR]. In his reasons on the summary judgment hearing, Justice Campbell wrote: "The Royal Proclamation was publicly advanced by the Crown to the Indians as the basis of its Indian policy. This declaration of policy, at first unilateral, soon came to be relied upon [by] the Indians and it became a mutually recognized and fundamental element of the treaty relationship" (ibid at para 381).
(142) See e.g. the Court of Appeal's more muted statement in Chippewas of Sarnia, supra note 88 at para 54:
After setting out its policy in the Royal Proclamation, the Crown took extraordinary steps to make the First Nations aware of that policy and to gain their support on the basis that the policy as set down in the Royal Proclamation would govern Crown-First Nations relations. In the summer of 1764, at the request of the Crown, more than 2,000 First Nations chiefs representing some twenty-two First Nations, including chiefs from the Chippewa Nation, attended a Grand Council at Niagara.... The singular significance of the Royal Proclamation to the First Nations can be traced to this extraordinary assembly and the treaty it produced.
See also Justice Linden's approach in the Report of the Ipperwash Inquiry, vol 2 (Toronto: Government of Ontario, 2007) at 45-46, online: <http://www.attorney general.jus.gov.on.ca>.
(143) See supra notes 37 to 42 and accompanying text.
(144) Seed, supra note 68 at 20.
(145) Ibid at 21 .
(146) See e.g. "Letter to Governor John Nixon" (21 May 1680) in EE Rich, ed, Copy-book of Letters Outward &c: Begins 29th May, 1680 Ends 5 July, 1687 (Toronto: Champlain Society for the Hudson's Bay Record Society, 1948), 2 at 9; "Letter to Governor John Bridgar" (15 May 1682) in Rich, ibid, 34 at 36.
(147) See Mark Walters's discussion of terms used in statutes from colonial America: Mark D Walters, "Mohegan Indians v Connecticut (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America" (1995) 33:4 Osgoode Hall LJ 785 at 793-95 [Walters, "Mohegan"].
(148) See Promislow, "It Would Only be Just", supra note 102 for discussion of the terms of settling a trade under the North West Company, which had no British colonial mandate comparable to the Hudson's Bay Company.
(149) For discussion see Boast, supra note 122; Martinez, supra note 111.
(150) See discussion in Richard White, "Using the Past: History and Native American Studies" in Russell Thornton, ed, Studying Native America: Problems and Prospects (Madison: University of Wisconsin Press, 1998) 217; Gabrielle M Spiegel, "Memory and History; Liturgical Time and Historical Time" (2002) 41:2 History & Theory 149; Edward Cavanagh, "History, Time and the Indigenist Critique" (2012) 37/38 Arena Journal 16; Bain Attwood, "In the Age of Testimony: The Stolen Generations Narrative, 'Distance,' and Public History" (2008) 20:1 Public Culture 75 [Attwood, "Stolen Generations"]. It should be noted that within academic history, there is also a strong tradition of acknowledging the non-positivist nature of historical interpretation and the influence or incorporation of the present within historical inquiry even if such approaches do not answer post-structural critiques. See e.g. Lawrence Stone, "History and Post-modernism, III" (1992) 135 Past & Present 189; Edward Hallett Carr, What is History (New York: Vintage Books, 1961).
(151) Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2000).
(152) Spiegel, supra note 150 at 149.
(153) Attwood, "Stolen Generations", supra note 150 at 90.
(154) See B Miller, supra note 11 at 26; Julie Cruikshank, "Oral Tradition and Oral History: Reviewing Some Issues" (1994) 75:3 Canadian Historical Review 403; Napoleon, "Straightjacket", supra note 11.
(155) Napoleon argues that what is in issue in courts' problematic reception is the presence of two competing legal systems. See ibid. In court settings, oral histories are treated as (problematic) forms of history, not law. Bruce Miller draws a different connection between truth in oral history and truth in law. He notes similarities between legal standards of objectivity in fact-finding (particularly the reasonable man) and some forms of oral history in that they both rely on a community standard employed in determining the "truth". See B Miller, supra note 11 at 37-38. See also Lori Ann Roness & Kent McNeil, "Legalizing Oral History: Proving Aboriginal Claims in Canadian Courts" (2000) 39:3 Journal of the West 66, who discuss the difficulties of introducing oral evidence to support Aboriginal rights claims in court in light of the structural and cultural limitations of court processes that cannot properly accommodate the cosmologies that inform oral histories.
(156) Jones, supra note 8 at 93.
(157) Wicken, Mi'kmaq Treaties, supra note 2 at 191 -209.
(158) Stephen E Patterson, "Anatomy of a Treaty: Nova Scotia's First Native Treaty in Historical Context" (1999) 48 UNBLJ 41 at 62-63. For a discussion of this academic disagreement, see Douglas C Harris, "Historians and Courts: R. v. Marshall and Mi'kmaq Treaties on Trial" (2003) 18:2 CJLS 123 at 124-25.
(159) Paul McHugh, "The Politics of Historiography and the Taxonomies of the Colonial Past: Law, History and the Tribes" in Anthony Musson & Chantal Stebbings, eds, Making Legal History: Approaches and Methodologies (Cambridge, UK: Cambridge University Press, 2012) 164 at 194-95.
(160) RSC 1985, c I-5.
(161) Christie, supra note 20 at 155.
(162) In the first level arbitration decision on Ontario v Canada and Quebec (Annuities Case) (1895), 25 SCR 434,  SCJ no 96 (QL) [Annuities Case, SCC cited to SCR], for example, Chancellor Boyd relied on McLean J's concurring reasons in Worcester v Georgia, 31 US (6 Pet) 515, 8 L Ed 483 (1832) [Worcester v Georgia cited to US], in which McLean J stated that "[t]he language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense" (ibid at 582). The courts in the two appeals from the arbitration decision accepted this principle, but not its applicability in the dispute between Ontario and Canada.
(163) See S James Anaya, Indigenous Peoples in International Law, 2d ed (Oxford: Oxford University Press, 2004) at 19, citing Hugo Grotius, The Law of War and Peace (1625). For a brief discussion of some of the theorists and scholarship, see Craig Bryan Yirush, "Claiming the New World: Empire, Law, and Indigenous Rights in the Mohegan Case, 1704-1743" (2011) 29:2 LHR 333 at 335-39.
(164) See McHugh, Aboriginal Societies, supra note 8 at 102-03.
(165) Ibid at 99. McHugh notes that the nature of the relationships found in early American colonies might have more to do with Native forms than English ones.
(166) Yirush, supra note 163 at 339. See also Walters, "Mohegan", supra note 147.
(167) Worcester v Georgia, supra note 162 at 559-60.
(168) This interpretation relies on the discovery doctrine to demonstrate at least a limited recognition of tribal sovereignty within the Imperial law. Such reliance is admitted to be ironic given the larger pernicious effect of the doctrine of discovery. The articulation of the doctrine in the Marshall decisions--particularly the earlier, stronger version of the doctrine in Johnson v M'Intosh, 21 US (8 Wheat) 543, 5 L Ed 681 (1823)--has been criticized as being without an empirical basis, and as having provided a legal basis for the expropriation of Indian lands and the impetus for further political dispossessions. See Eric Kades, "History and Interpretation of the Great Case of Johnson v. M'Intosh" (2001) 19:1 LHR 67; Hope M Babcock, "The Stories We Tell, and Have Told, about Tribal Sovereignty: Legal Fictions at Their Most Pernicious" (2010) 55:4 Vill L Rev 803; Lindsay G Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford: Oxford University Press, 2005); Joseph William Singer, "Sovereignty and Property" (1991) 86:1 Nw UL Rev 1.
(169) See Anaya, supra note 163 at 30, citing John Westlake, Chapters on the Principles of International Law (1894).
(170) See McHugh, Aboriginal Societies, supra note 8.
(171) (1877), 3 NZ Jur (NS) Sc 72 [Wi Parata]. Wi Parata also denied the existence of any customary Native title. After Wi Parata, the Privy Council overturned part of this case to hold that an enforceable Native title claim existed against the Crown under the Native Rights Act in Nireaha Tamaki v Baker,  AC 561, (1901) NZPCC 371. For an overview, see John William Tate, "Tamikana Korokai and Native Title: Healing the Imperial Breach" (2005) 13 Waikato L Rev 108.
(172) Wi Parata, supra note 171 at 78. For discussion, see PG McHugh, "A History of Crown Sovereignty in New Zealand" in Andrew Sharp and Paul McHugh, eds, Histories, Power and Loss: Uses of the Past--A New Zealand Commentary (Wellington: Bridget Williams Books, 2001) 189; David V Williams, A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland: Auckland University Press, 2011).
(173) (1888), 14 App Cas 46, 10 CRAC 13 (PC) [Sr. Catherine's Milling cited to App Cas].
(174) Text of the treaty available at: Treaty 3 between Her Majesty the Queen and the Saulteaux Tribe of the Ojibbeway Indians at the Northwest Angle on the Lake of the Woods with Adhesions, 3 October 1873, online <http://www. aadnc-aandc.gc.ca/eng/1100100028675/11001000286679> [Treaty 3].
(175) St. Catherine's Milling, supra note 173 at 46.
(176) Ibid at 55.
(177) Attorney-General for the Dominion of Canada v Attorney-General for Ontario (Annuities Case),  AC 199, 11 CRAC 308 (PC) [Annuities Case, PC, cited to AC],
(178) Ibid at 213.
(179) (1928),  1 DLR 307, 50 CCC 389 (NS Co Ct) [Syliboy cited to DLR], For discussion, see William C Wicken, The Colonization of Mi'kmaw Memory and History, 1794-1928: The King v. Gabriel Sylliboy (Toronto: University of Toronto Press, 2012) [Wicken, Colonization]; Macklem, supra note 3 at 138-39.
(180) Patterson J also found that the Governor lacked capacity to treat on behalf of the Crown as a result of not having the appropriate delegation of powers from Great Britain. See Syliboy, supra note 179 at 314.
(181) Ibid at 313.
(182) See e.g. Annuities Case, SCC, supra note 162 at 508-27, Gwynne J, dissenting.
(183) It is worth noting that all of the judges of the Supreme Court of Canada assumed that the annuities provisions of the Robinson Treaties would be honoured, with principles of equity and trusts figuring prominently in their construction of the nature of the Indian interest stemming from the treaty. See Annuities Case, SCC, supra note 162.
(184) Albeit a modified form of those rights, since the wording of the NRTAs has been held to have extinguished any commercial hunting rights and expanded the scope of those rights to beyond treaty territories to all unoccupied Crown lands within the province. See R v Horseman,  1 SCR 901 at 933, 108 AR 1. For discussion, see Frank J Tough, "The Forgotten Constitution: The Natural Resources Transfer Agreements and Indian Livelihood Rights, ca. 1925-1933" (2004) 41:4 Alta L Rev 999: Kerry Wilkins, "Unseating Horseman-. Commercial Harvesting Rights and the Natural Resources Transfer Agreements" (2007) 12:2 Rev Const Stud 135.
(185) See R v Wesley (1932), 26 Alta LR 433,  4 DLR 774 (CA) [cited to Alta LR], McGillivray JA also commented on the enforceability of treaty rights at law (ibid at 449-50).
(186) (1935), 5 CNLC 92 (Exchequer Ct) [Dreaver], In the later 1966 case of Johnston v The Queen (1966), 56 DLR (2d) 749,49 CR 203 (Sask CA), the Saskatchewan Court of Appeal did not treat the medicine chest provision generously but nevertheless accepted a contractual model of interpretation that assumed the enforceability of treaty provisions against the Crown.
(187) (1979),  2 FC 18, 102 DLR (3d) 602 (TD) [Pawis]. See Macklem, supra note 3 at 140, regarding Pawis as a shift to the contractual view of treaties.
(188) See e.g. Kinloch v Secretary of State for India in Council (1882), 7 App Cas 619 (HLEng).
(189) Indeed, legal commentary on Syliboy from 1929 disagrees with Patterson J's conclusions about the capacity of the parties to enter into the treaty. See NAM Mackenzie, "Indians and Treaties in Law" Case Comment on Rex v Syliboy, (1929) 7:8 Can Bar Rev 561. However, Wicken notes that because Syliboy was decided just after Parliament restricted the ability of Indians to hire lawyers to pursue land claims, it had more significance. He also notes that at least in Nova Scotia, governments relied on Syliboy well into the 1970s. See Wicken, Colonization, supra note 179 at 7, n 6. In later cases, the decision in Syliboy was interpreted more narrowly, as limited to Patterson J's first finding that the treaty was made with a particular band of Mi'kmaq rather than applying to the whole tribe and therefore did not extend to encompass the defendant. See e.g. R v Wesley (1975), 9 OR (2d) 524,78 DLR (3d) 227 (Dist Ct).
(190) See Wicken, Colonization, supra note 179, for a book-length treatment of the evolution of Mi'kmaq understandings of the 18th-century treaties.
(191) See Parliament, "Report of the Commission on Indian Affairs" in Sessional Papers, No 68B (1947) at 3-4, as cited by Kerry Wilkins, "'Still Crazy After All These Years': Section 88 of the Indian Act at Fifty" (2000) 38:2 Alta L Rev 458 at 462, n 20.
(192) (1959), 20 DLR (2d) 416, 1959 CarswellOnt 228 (WL Can) (HC) [Logan cited to DLR], For discussion, see Darlene M Johnston, "The Quest of the Six Nations Confederacy for Self-Determination" (1986) 44:1 UT Fac L Rev 1 at 20-23.
(193) Logan, supra note 192 at 422. Hamar Foster points out that the Courts move from protectorship to subjecthood was inconsistent with American precedent and international law principles. See Hamar Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases" (1992) 21:3 Man LJ 343 at 345, n 9.
(194) See Kent McNeil, Common Law Aboriginal Title (New York: Oxford University Press, 1989) at 110-33 for a discussion of treaties in relation to judicial classifications of whether colonies were conquered, ceded, or settled.
(195) Jeremy Webber, for example, discusses the political philosophy of Hume, who argues that all political authority is historically founded on force. See Jeremy Webber, "The Meanings of Consent" in Webber & Macleod, supra note 23, 3 at 3-5 [Webber, "Consent"].
(196) See Constitution Act, 1867, supra note 17, s 91(24) (tided the British North America Act, 1867 before 1982). See generally Wilkins, supra note 191. I suggest this is the "historic" approach because the recent Supreme Court decisions in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, 372 DLR (4th) 385 [Keewatin], and Tsilhqot'in appear to have significantly limited the application of the doctrine of inter jurisdictional immunity to s 91 (24). See Tsilhqot'in, supra note 6 at paras 128-52; Keewatin, ibid at para 53.
(197) Simon, supra note 14 at 404.
(198) Some commentators view the sui generis status of treaties (and Aboriginal rights more generally) as potentially helpful in understanding treaties as a product of both British and Indigenous legal traditions. See e.g. Henderson, Treaty Rights, supra note 18; John Borrows & Leonard I Rotman, "The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference?" (1997) 36:1 Alta L Rev 9. For a contrasting view, see Coyle, supra note 44.
(199) Haida Nation, supra note 121 at para 20. In the recent Tsilhqot'in decision, the mention of treaties is more circumspect: "Throughout most of Canada, the Crown entered into treaties whereby the indigenous peoples gave up their land in exchange for reservations and other promises": Tsiihqot'in, supra note 6 at para 4.
(200) For commentary on this point see Mark D Walters, "The Morality of Aboriginal Law" (2006) 31:2 Queen's LJ 470 at 513-16; Borrows, "Ground-Rules", supra note 3; Hoehn, supra note 3. For discussion of the difference between de jure and de facto sovereignty more generally, see Kent McNeil, "Factual and Legal Sovereignty in North America: Indigenous Realities and Euro-American Pretensions" in Julie Evans et al, eds, Sovereignty: Frontiers of Possibility (Honolulu: University of Hawai'i Press, 2013) 37.
(201) Sioui, supra note 1 at 1044. For an argument that in proper historical context, the agreement in issue in Sioui should not have been recognized as a treaty, see Denis Vaugeois, La Fin des alliances franco-indiennes: Enquete sur un sauf-conduit de 1760 devenu un traite en 1990 (Montreal: Boreal, Septentrion, 1995). For a response and contrary opinion, see Morin, supra note 95 at 248. See also Simon, supra note 14. In Francis v The Queen,  SCR 618, 3 DLR (2d) 641, the Court rejected international treaties such as the Jay Treaty from falling within s 88's purview, but this does not limit such treaties from being considered under s 35, see e.g. Mitchell vMNR, 2001 SCC 33,  1 SCR 911.
(202) R v White and Bob (1964), 50 DLR (2d) 613, 52 WWR 193 (BCCA), aff'd  SCR vi, 52 DLR (2d) 481 [White and Bob cited to DLR].
(203) Ibid at 649.
(204) (1981), 34 OR (2d) 360,  3 CNLR 114 (CA) [Taylor and Williams], leave to appeal to SCC refused, 40 NR 539,  SCCA no 377 (QL).
(205) Ibid. Adopted in Sioui, supra note 1 at 1045. In Taylor and Williams, these factors along with the principle of the honour of the Crown were part of the analysis of the binding character and scope of a treaty promise that was recorded in the minutes of the treaty negotiations but not in the terms of the treaty document. In Simon, the fifth factor was considered to determine whether the treaty was terminated or limited by subsequent hostilities. The Court held that the treaty was not terminated, finding that the Crown had not met its burden of proof regarding termination of the treaty. See Simon, supra note 14 at 404.
(206) The interpretation of the terms of the 1818 treaty in issue in Taylor and Williams involved dealing with several fur trade practices and expectations, including the meaning of the word "milk" and the easily misconstrued negotiation tropes of hunger and pity. On the former, see Bruce M White, '"Give Us a Little Milk': The Social and Cultural Meanings of Gift Giving in the Lake Superior Fur Trade" (1982) 48:2 Minnesota History 60. On the latter, see Mary Black-Rogers, "Varieties of 'Starving': Semantics and Survival in the Subarctic Fur Trade, 1750-1850" (1986) 33:4 Ethnohistory 353; Promislow, "I Bring Thee Merchandise", supra note 107.
(207) The language of "recognized and affirmed" in Constitution Act, 1982, supra note 35, s 35 protects the treaty and Aboriginal rights that continued to exist in 1982, i.e., rights that were not unilaterally extinguished by the Crown prior to 1982. See R v Sparrow,  1 SCR 1075, 70 DLR (4th) 385; Cote, supra note 97. In the case of treaty rights, s 35(3) allows that rights arising from land claims agreements--i.e., modern treaties--concluded before or after 1982 would also receive constitutional protection. For discussion, see Brian Slattery, "Making Sense of Aboriginal and Treaty Rights" (2000) 79:2 Can Bar Rev 196 at 205-06.
(208)  1 SCR771, 133 DLR (4th) 324 [Badger cited to SCR],
(209) Ibid at para 52.
(210) See e.g. White and Bob, supra note 202 at 625-64, Norris JA; Annuities Case, SCC, supra note 162 at 508-27, Gwynne J, dissenting; R v George,  SCR 267 at 207-80, 55 DLR (2d) 386, Cartwright J, dissenting.
(211) The absence of a discussion of these principles is notable in the most recent treaty case decided by the Supreme Court, Keewatin, supra note 196, in which treaty interpretation was approached as a matter of constitutional law--which allowed for federal government treaty rights to be exercised by the successor Government of Ontario--as well as empirically, as a matter of historical intention (of governments primarily). The reliance on constitutional law to delimit the historical inquiry, however, demonstrates the continuing 19th-century colonial frame of reference for treaties in which treaties fit within an established Crown sovereignty rather than contribute to the formation of that sovereignty.
(212) See 1760-61 Treaties, supra note 78.
(213) Marshall, supra note 1 at para 14 [emphasis in original], citing Lamer J in Sioui, supra note 1 at 1069. Interestingly, Lamer J made those comments to introduce a check on the liberal interpretation principles that favour First Nations: "Even a generous interpretation of the document, such as Bisson J.A.'s interpretation, must be realistic and reflect the intention of both parties, not just that of the Hurons. The Court must choose from among the various possible interpretations of the common intention the one which best reconciles the Hurons' interests and those of the conqueror" (Sioui, ibid).
(214) Marshall, supra note 1 at para 52.
(215) Ibid at para 102.
(216) Ibid at para 78.
(217) Badger, supra note 208 at para 41. See also Haida Nation, supra note 121 at para 20.
(218) For an argument that Binnie J's application of the honour of the Crown went too far in Marshall, see Robert Normey, "Angling for 'Common Intention': Treaty Interpretation in R. v. Marshall (2000) 63:2 Sask L Rev 645. The honour of the Crown also limits government treaty rights under taking-up clauses, as illustrated in Keewatin, supra note 196 at para 50. However, the reliance on the honour of the Crown in interpreting government treaty rights relates more to establishing the presence of consultation obligations and the justification of infringements of Indigenous treaty rights than it does to the interpretive exercise of defining the scope of those rights. See Mikisew Cree, supra note 123.
(219) See e.g. Leonard Rotman, "Marshalling Principles from the Marshall Morass" (2000) 23:1 Dal LJ 5; Catherine Bell & Karin Buss, "The Promise of Marshall on the Prairies: A Framework for Analyzing Unfulfilled Treaty Promises" (2000) 63:2 Sask L Rev 667. For a contrasting view of Marshall as a continuation of a status quo incapable of arriving at the true spirit and intent of the treaties, see Christie, supra note 20.
(220) Walters, "Covenant Chain", supra note 4 at 78 [emphasis in original].
(221) See e.g. Morris, supra note 1 at para 18.
(222) 2005 SCC 43,  2 SCR 220 [Marshall; Bernard].
(223) Ibid at para 20. For a critical discussion of the treaty claim, see John McEvoy, "Marshall and Bernard: Treaty Rights and a Treaty Table" (2006) 55 UNBLJ 105.
(224) 2003 FCA 236, 228 DLR (4th) 1 [Benoit], Note that the recent Federal Court of Appeal ruling in Tuccaro v Canada, 2014 FCA 184, 2014 CarswellNat 2746 (WL Can), will allow different evidence to be led in relation to the same treaty right claim (to tax exempt status) that was litigated in Benoit since the finding of no treaty right in Benoit was only a finding of fact and not law.
(225) 2005 FC 1623, 269 FTR 188 [Ermineskin], aff'd Ermineskin, 2009 SCC 9,  1 SCR 222. There was no discussion of oral history evidence at the Supreme Court.
(226) Victor Buffalo, supra note 101 at para 454, quoting the Crowns historical expert Dr. von Gernet. Dr. von Gernet's approach to working with oral traditions was also accepted by the Federal Court of Appeal in Benoit, supra note 224.
(227) Victor Buffalo, supra note 101 at paras 38-44,451-53. See also Benoit, supra note 224. The discussion in Benoit also dealt with the need for evaluating the nature of the oral tradition witnesses' expertise and differences between Indigenous oral traditions. For discussion, see B Miller, supra note 11 at 106-13; Napoleon, "Straightjacket", supra note 11.
(228) It should be noted that the value of Morris as a precedent on the federalism issue was recently questioned in Tsilhqot'in, supra note 6 at para 150.
(229) See e.g. JR Miller, "Lessons", supra note 2, where Miller laments the enthusiasm Binnie J shows as an amateur historian in his decision in Marshall. For his part, Binnie J displayed significant awareness of the different disciplinary demands of law and history in Marshall, supra note 1, stating at para 37:
The law sees a finality of interpretation of historical events where finality, according to the professional historian, is not possible. The reality, of course, is that the courts are handed disputes that require for their resolution the finding of certain historical facts. The litigating parties cannot await the possibility of a stable academic consensus. The judicial process must do as best it can.
However, this difference regarding conclusive interpretations is not the key obstacle, as I discuss here.
(230) The phrase is from Lawrence Stone. See Stone, supra note 150 at 190.
(231) See discussion above, in Section II. See generally Chakrabarty, "Reconciliation and Its Historiography", supra note 11.
(232) Canada v Benoit, 2002 FCT 243 at para 282,  2 CNLR 1 (Evidence, quoting Dr. Alexander von Gernet's expert report for Alberta titled "Oral Traditions, Treaty 8 and Taxation").
(233) See e.g. RCAP's recommendation of a specialized tribunal to deal with specific claims, including jurisdiction over "any issue relating to treaties that is currently justiciable in the courts", the ability to return land as a remedy, and a limited supervisory role over the procedural aspects of comprehensive claims negotiation: RCAP, vol 2, supra note 3 at 721. The mandate of the recently operational Specific Claims Tribunal is much narrower than was envisioned by RCAP, offering monetary remedies rather than the return of land, but does include the jurisdiction to adjudicate historic treaty grievances with finality. See Specific Claims Tribunal Canada--History, online: <http://www.sct-trp.ca>. See also John Borrows's comments on the need to appoint more Aboriginal members to the judiciary: John Borrows, Indigenous Legal Traditions in Canada, (np: Law Commission of Canada, 2006) at 139-93.
(234) Walters, "Covenant Chain", supra, note 4 at 94.
(235) Andrew Sharp, "History and Sovereignty: A Case of Juridical History in New Zealand/Aotearoa" in Michael Peters, ed, Cultural Politics and the University in Aotearoa/New Zealand (Palmerston North: Dunniore Press, 1997) 159 at 160-61, 166. See also McHugh, Aboriginal Societies, supra note 8 at 1-58.
(236) See Walters, "Covenant Chain", supra note 4, for a discussion of law and history as distinctive interpretive communities. He argues that, when it comes to finding shared treaty meanings in the past, law and history appear to be working within the same interpretive dimensions (ibid at 94). See also Walters, "Histories of Colonialism", supra note 9; Damen Ward, "A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in Australasia" (2003) 1:1 History Compass 1 at 15-19.
(237) Miranda Johnson, Struggling over the Past: Decolonization and the Problem of History in Settler Societies (PhD Thesis, University of Chicago, 2008) [unpublished].
(238) Ibid at 254.
(239) It should be noted that the histories produced by the Waitangi Tribunal are also criticized as being juridical or presentist (bounded by the legislative mandate of the tribunal) and vulnerable to critique as insufficiently objective. See e.g. Giselle Byrnes, The Waitangi Tribunal and New Zealand History (Oxford: Oxford University Press, 2004).
(240) Arthur J Ray, "Native History on Trial: Confessions of an Expert Witness" (2003) 84:2 Canadian Historical Review 253 at 269.
(241) For a review of the fallout from Marshall, see Ken S Coates, The Marshall Decision and Native Rights (Montreal & Kingston: McGill-Queen's University Press, 2000) at 7-20. See also Russel Lawrence Barsh & James [Sa'ke'j] Youngblood Henderson, "Marshalling the Rule of Law in Canada: Of Eels and Honour" (1999) 11:1 Const Forum Const 1 at 1, 15; Harris, supra note 158. For similar concerns in the Australian context, see Bain Attwood, Telling the Truth about Aboriginal History (Crows Nest, NSW: Allen & Unwin, 2005).
(242) Coates, supra note 241.
(243) Johnson discusses a different problem, arguing that in creating the narrative of political equivalence, juridical history has distorted the representation of political authority within Maori society. See Johnson, supra, note 237.
(244) This perception was no doubt aided by the comment of the Crowns expert, Stephen Patterson, to the press that the Supreme Court had misconstrued his evidence. See Harris, supra note 158 at 130.
(245) See Alex M Cameron, Power without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism (Montreal & Kingston: McGill-Queen's University Press, 2009); Dianne Pothier, Book Review of Cameron, ibid, (2010) 33:1 Dal LJ 189.
(246) See e.g. Attwood, "Stolen Generations", supra note 150; Bain Attwood, "The Law of the Land or the Law of the Land? History, Law and Narrative in a Settler Society" (2004) 2 History Compass 1.
(247) It should be noted that these characterizations of the policy may not be as distinct as Attwood assumes. It is arguable that policies aimed at destroying or eliminating a people through eliminating their culture meet the definition of genocide. See Woolford, "Transition and Transposition", supra note 128, for a discussion of the definition of genocide.
(248) For discussions of the role and authority of history in the common law, see Gerald J Postema, "On the Moral Presence of Our Past" (1991) 36:4 McGill LJ 1153; Paul McHugh, "Sovereignty This Century-Maori and the Common Law Constitution" (2000) 31:1 VUWLJ 187.
(249) Attwood, "Stolen Generations", supra note 150 at 94. For a similar analysis of the importance of seeing the continuity of colonialism through a historicist view of the past in relation to the Waitangi Tribunal, see TO Oliver, "The Future Behind Us: The Waitangi Tribunal's Retrospective Utopia" in Sharp & McHugh, supra note 172, 9.
(250) Postema, supra, note 248 at 1180 [emphasis in original].
(251) See e.g. Coyle, supra note 44; Claire E Hunter, "New Justification for an Old Approach: In Defence of Characterizing First Nations Treaties as Contracts" (2004) 62:1 UT Fac L Rev 61.
(252) Marshall, supra note 1 at para 43.
(253) Treaty interpretation is presumably less fraught in the present day context, but to date the Supreme Court has exhibited a deep split about how the honour of the Crown applies in the context of modern treaties, the relationship between historic and modern treaties, and the approach that will best promote reconciliation; contrast Binnie J and Dechamps J in Little Salmon/Carmacks, supra note 111, and Moses, supra note 111. For commentary, see Julie Jai, "The Interpretation of Modern Treaties and the Honour of the Crown: Why Modern Treaties Deserve Judicial Deference" (2009) 26:1 NJCL 25; E Ria Tzimas, "To What End the Dialogue?" (2011) 54 SCLR (2d) 493; Dwight Newman, "Contractual and Covenantal Conceptions of Modern Treaty Interpretation" (2011) 54 SCLR (2d) 475.
(254) No doubt a contracts law scholar could take issue with this assertion. I do not mean to imply that the values behind contract law are fully settled, immune to challenge, or that the values behind enforcing promises could not be justified outside of liberal economics. The comparison is made more for the purposes of showing the relative ease with which one can identify a normative basis for enforcing contracts. For a discussion of various contract theories, see Nathan Oman, "Unity and Pluralism in Contract Law" (2005) 103:6 Mich L Rev 1483.
(255) Webber, "Consent", supra note 195.
(256) Haida Nation, supra note 121 at para 20.
(257) See e.g. Tully, Strange Multiplicity, supra note 3; James [Sa'ke'j] Youngblood Henderson, "Dialogical Governance: A Mechanism of Constitutional Governance" (2009) 72:1 Sask L Rev 29; Martin Krygier, "Law as Tradition" (1986) 5:2 Law & Phil 237; John Ralston Saul, "The Roots of Canadian Law in Canada" (2009) 54:4 McGill LJ 671.
(258) See Postema, supra note 248 at 1170, 1176, 1178.
(259) Jeremy Waldron, "Redressing Historic Injustice" (2002) 52:1 UTLJ 135.
(260) Proportionality in "modernizing" rights was discussed in relation to Aboriginal rights in Lax Kw'aLaams Indian Band v Canada (Attorney General), 2011 SCC 56,  3 SCR 535.
(261) An approach that is perhaps similar to Vickers J s approach with respect to Aboriginal title in Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700,  1 CNLR 112. For discussion, see Kent McNeil, "Reconciliation and Third-Party Interests: Tsilhqot'in Nation v British Columbia" (2010) 8:1 Indigenous LJ 7.
(262) Haida Nation, supra note 121 at paras 17, 19. See also Mikisew Cree, supra note 123, regarding the honour of the Crown applying to treaty implementation. See also Nunavut, supra note 7, in which the Nunavut Court ordered, in a summary judgment, a disgorgement of damages of nearly $ 15 million for failures on the part of the federal government in implementing the Nunavut Land Claim Agreement. The remedy was based in part on the finding that the honour of the Crown in this circumstance gave rise to a fiduciary duty in relation to the implementation of the agreement. The remedy and the finding of a fiduciary duty were overturned on appeal.
(263) Walters, "Covenant Chain" supra note 4 at 89.
(264) Slattery, "Generative Structure", supra note 4.
(265) Shin Imai, "Treaty Lands and Crown Obligations: The 'Tracts Taken Up' Provision" (2001)27:1 Queen's LJ 1.
(266) Ibid at 24.
(267) Slattery, "Generative Structure", supra note 4.
(268) Ibid at 595.
(269) Ibid at 623.
(270) Ibid at 624.
(271) Slattery suggests that these principles should be developed within the context of actual cases while identifying several potential features of those principles. See ibid at 625-26.
(272) Slattery makes a similar point in relation to Aboriginal rights and the Van der Peet test. See ibid at 610.
(273) Ibid at 624.
(274) Mikisew Cree, supra note 123.
(275) This conceptualization was reflected in Mikisew Cree, where the Supreme Court suggested that the Crown would always have notice of the treaty rights contained in a treaty. See ibid at para 34.
(276) The legal anchors for such judicial supervision requires further elaboration that is beyond the scope of this paper. The honour of the Crown provides potential grounds for arguing for court intervention regarding the implementation of treaties and particularly modern agreements. See the discussion in supra note 262.
JANNA PROMISLOW, Assistant Professor, Faculty of Law, Thompson Rivers University.
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|Title Annotation:||III. Treaties in Law through IV. Conclusion, with footnotes, p. 1140-1183; Canada; Law on the Edge|
|Publication:||University of British Columbia Law Review|
|Date:||Oct 1, 2014|
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