The PLEA: Treaties and the Law

The PLEA: Treaties and the Law

Interpreting Treaty Promises

Treaties create lasting rights that are enforceable by Canadian law, but government policies and laws have complicated their implementation. Another question that complicates giving effect to the Treaty promises is defining what was promised in the Treaties.

The parties to the Treaties have different views about the content and the meaning of the Treaties. The Treaty First Nations expect the Treaties to be implemented according to their spirit and intent, including oral promises made when the Treaties were entered into. The Government of Canada, on the other hand, has looked mostly to the written text of the Treaties to determine the Crown’s obligation.

Interpreting the Treaties: Guiding Principles

The Supreme Court has developed some principles to be considered when deciding what rights are included in a Treaty:

  • A Treaty is a sacred agreement involving the honour of the Crown.
  • It is assumed that promises made by the Crown are intended to be fulfilled.
  • Any part of a Treaty that is not clear must be read in favour of the First Nation.
  • Oral promises and the historical circumstances surrounding the signing of a Treaty and how the First Nations would have understood it can be considered.
  • Treaty promises must be interpreted in a way that allows them to evolve over time to meet changing circumstances.

Questions to Consider

  1. The First Nations and the representatives of the Crown understood certain concepts very differently because of very different world views. How would this impact the negotiating of Treaties?
  2. It is understood that the Treaties recorded oral agreements; the record was made in a language that was foreign to the First Nations; and the written record did not always include the whole agreement. How does this relate to the Supreme Court’s principles in considering what rights are included in a Treaty?