Treaties in history and law.

• Author: Promislow, Janna

3. TREATIES IN 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.

   1. 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...