On the Nature of Treaties

• Pages: 1-27
• Author: Bryan Birtles

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 

On the Nature of Treaties

A Working Definition of Treaties in Canada

Although it is something of a paradox, the sensible place to begin

developing a definition of “treaty” in Canada is with what treaties are

not: treaties are not contracts. Despite being “analogous” to contracts,

and despite the Supreme Court of Canada (SCC) utilizing contractual

principles to interpret treaty agreements, if there is one thing we know

about treaties between the Crown and Indigenous Nations in Canada,

it is that they are not contracts.

So what are they? Treaties are agreements that “create enforceable

obligations based on the mutual consent of the parties.” ere is an

element of a mutually beneficial exchange occurring, typically an

exchange of land for guaranteed rights, as in Mikisew Cree First Nation

v Canada (Governor General in Council). But many earlier treaties were

exchanges of significantly less objective value: peace in exchange for

trade, for example, as the treaty at issue in R v Marsha ll was determined

to be, or peace and alliance in exchange for safe passage, religious lib-

erty, and trade, as the treaty in R v Sioui was determined to be.

From the above, we may be tempted to conclude that a treaty is

simply an enforceable, mutually beneficial exchange. is is not satis-

factory, however, because this is, essentially, the definition of a con-

tract. And if we know nothing else about treaties in Canada, we at

A TREATISE ON TREATIES

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least know the one thing they are not: contracts. Something more is

necessary before we arrive at an acceptable working definition.

e element of time, this treatise suggests, is the fundamental dif-

ference between a treaty and a contract: unlike contracts, treaties are

intended to last forever. In some cases, the treaty itself is explicit on

the point. In Treaty No. ½, for example, the Saugeen Ojibway Nation

exchanged . million acres of land in  for a promise to protect

“for ever” the Nation’s remaining territory from the “encroachments of

the whites,” who were swiftly moving into the region. Another good

example is Treaty No. , where, in the midst of negotiations in  at

Fort Qu’Appelle, Saskatchewan, the Crown’s chief negotiator Alexander

Morris remarked:

[T]he promises we have to make to you are not for to-day but for

tomorrow, not only for you but for your children born and unborn,

and the promises we make will be carried out as long as the sun shines

above and the water flows in the ocean.

Further evidence of the long-term nature of treaty agreements in

Canada stems from Sioui. At issue in that case was a document that, at

first glance, appears to be nothing more than a safe passage, provided

by Brigadier General James Murray to a group of French-allied Huron

near the end of the Seven Years’ War. ese warriors had switched

allegiance to Britain, and General Murray’s document guaranteed a

safe passage from the site of their surrender to their home territory.

However, the document also guaranteed “the free exercise of religion,

customs and trade with the English,” something the SCC remarked

“cannot but raise serious doubts” that the document was merely a safe

passage. In Sioui, the Court concluded that the document — created

in  — could support a treaty right to practise ancestral customs on

public property more than two centuries later. e Court was adamant

about the treaty’s continuity: despite the Crown’s argument that the

treaty was extinguished due to disuse over the intervening years, the

Court ruled that “a solemn agreement cannot lose its validity merely

because it has not been invoked.”

One final point is important: treaties are international agreements

because they were, and are, concluded between nations. ey are not