Interpretation of Treaties with Indigenous Peoples

• Author: Susan Barker, Erica Anderson
• Pages: 184-196

184

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chapter nine

Interpretation of Treaties with Indigenous

Peoples

Treaties with Indigenous peoples are “are agreements made between

the Government of Canada, Indigenous groups and oen provinces

and territories that dene ongoing rights and obligations on a

sides.”1 ere are two (or more) equal partners to every treaty, as treat-

ies were, and are, “the primary means by which diplomatic relations

were conducted between Britain [and then Canada] and Aboriginal

peoples.”2 In addition, treaty rights are constitutionay “recognized

and armed”3 by section 35 of the Canadian Constitution. As with

statutes, if there is disagreement about the meaning of a treaty, the

courts wi be expected to interpret that meaning.

Ideay, when the courts are considering the meaning of a treaty,

both parties’ understanding of the terms of the treaty should be con-

sidered equay. However, this has not always been the case. As Bor-

rows and Rotman note:

1 Government of Canada, “Treaties, Agreements and Negotiations,” online:

Crown-Indigenous Relations and Northern Aairs Canada www.rcaanc-cirnac.gc.ca/

eng/1100100028574/1529354437231.

2 John J Borrows & Leonard I Rotman, Aboriginal Legal Issues: Cases, Materials &

Commentary, 5th ed (Markham, ON: LexisNexis Canada, 2018) at 281 [Borrows &

Rotman, Aboriginal Legal Issues].

3 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c11.