On the Interpretation of Treaties

• Pages: 29-50
• Author: Bryan Birtles



 

On the Interpretation of Treaties

Interpretive Principles

Because Crown-Indigenous treaties in Canada are sui generis legal instru-

ments, they require sui generis principles of interpretation. ese princi-

ples were laid out at their most succinct in R v Marshall by McLachlin J

(as she then was). Although she was writing in dissent in Marshall

No 1, the nine principles she cited have since been fully adopted by

the Supreme Court of Canada (SCC), which referred to them as “the

most frequently cited summary of the relevant interpretive principles”

developed by the Court. ese nine principles are as follows:

. Aboriginal treaties constitute a unique type of agreement and

attract special principles of interpretation.

. Treaties should be liberally construed and ambiguities or doubt-

ful expressions should be resolved in favour of the [A]boriginal

signatories.

. e goal of treaty interpretation is to choose from among the vari-

ous possible interpretations of common i ntention the one which

best reconciles the interests of both parties at the time the treaty

was signed.

. In searching for the common intention of the parties, the integrity

and honour of the Crown is presumed.

A TREATISE ON TREATIES



. In determining the signatories’ respective understanding and

intentions, the court must be sensitive to the unique cultural and

linguistic dierences between the partie s.

. e words of the treaty must be given the sense which they would

naturally have held for the parties at the time.

. A technical or contractual interpretation of treaty wording should

be avoided.

. While construing the language generously, courts cannot alter the

terms of the treaty by exceeding what “is possible on the language”

or realistic.

. Treaty rights of [A]boriginal peoples must not be interpreted in

a static or rigid way. ey are not frozen at the date of signature.

e interpreting court must update treaty rights to provide for

their modern exercise. is involves determining what modern

practices are reasonably incidental to the core treaty right in its

modern context.

is treatise will discuss each of these nine principles in turn.

Treaties as Unique Agreements

is treatise has discussed at some length the idea that treaties are

not contracts — see Chapter  — but it is a point worth repeating.

Although somewhat analogous to contracts, Crown-Indigenous treat-

ies in Canada are unique or sui generis legal instruments. As the SCC

wrote in R v Sundown:

Treaties may appear to be no more than contracts. Yet they are far

more. ey are a solemn exchange of promises made by the Crown

and various First Nations. ey often formed the basis for peace and

the expansion of European settlement. In many if not most treaty

negotiations, members of the First Nations could not read or write

English and relied completely on the oral promises made by the Can-

adian negotiators.

One might even conclude that these three sentences underpin most, if

not all, of the subsequent principles explicated by McLachlin J.