Treaty rights

Section 35 recognizes and protects not only Aboriginal rights but also the Treaty rights of Indigenous peoples.

The fundamental objective of the modern law of Treaty rights is the reconciliation of Indigenous peoples and non-Indigenous peoples (Mikisew, 2005, SCC). Historically, treaties were used to build alliances, keep the peace, and open lands to settlement. Historic treaties were typically recorded by the Crown in relatively short documents expressed in highly generalized terms. Modern treaties, by contrast, being the product of lengthy negotiations between well-resourced parties, are detailed agreements which set out Treaty rights and obligations over a wide range of subjects, including such matters as land tenure, land management, fish and wildlife harvesting, heritage resources, and financial compensation (Beckman, SCC; Restoule, SCC). For more information, consult this map showing areas of Canada covered by Historic treaties and this map of areas covered by Modern treaties.

Treaties are of a sacred nature and represent an exchange of solemn promises between the Crown and various Indigenous nations (R v Badger, [1996] 1 SCR 771). Treaties are a sui generis (unique) form of agreement in Canadian law that are to be interpreted according to a special set of principles (Sioui, SCC; Simon v The Queen, [1985] 2 SCR 387; R v Marshall, [1999] 3 SCR 456 [Marshall No. 1]; Restoule, SCC). These principles reflect the circumstances of the making of the treaties, their recognition in section 35, and the special relationship that exists between the parties.

Article 37 of the UN Declaration also recognizes the importance of these agreements:

  1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
  2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Historic treaties

Treaties with Indigenous peoples are often characterized as either “Historic treaties” or “Modern treaties.”  “Historic treaties” refer generally to those treaties originating in the 17th century up to and including the time of treaties entered into in the 1920s.  A listing of Historic treaties can be consulted in the Summaries of Pre-1975 Treaties.

Identifying historic treaties

Indigenous peoples and the Crown sometimes have differing perspectives on whether historic agreements are treaties pursuant to section 35. Where there is doubt as to whether a document is a treaty, the proper identification is particularly important in light of the entrenchment of existing Treaty rights in section 35. Of primary importance in determining whether an agreement is a treaty is an examination of the capacities of the parties to enter into a treaty (Sioui, SCC). Where any one of the parties was without such capacity, there can be no treaty. The question of capacity has to be examined from the viewpoint of each party and a generous interpretation given to the capacity of Indigenous people that reflects the historical facts of the time (Sioui, SCC). If capacity is found, the analysis turns to whether a treaty was, in fact, concluded. The elements that characterize a treaty have been identified as the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity (Sioui, SCC).

The courts have called for flexibility in determining the legal nature of a document purported to be a record of a treaty (Simon, SCC). Flexibility is required considering that Historic treaties were often recorded in relatively short documents. As such, the historical context and perception of the parties are taken into account (Sioui, SCC). Factors that are relevant to determining the historical context are:

Interpreting historic treaties

Historic treaties are interpreted in a purposive fashion, informed by the honour of the Crown.  (Manitoba Métis Federation, SCC; Restoule, SCC). A purposive interpretation entails identifying and giving effect to the common intention of the parties at the time a treaty was made (Marshall No. 1, (SCC); Sioui, SCC; Restoule, SCC). In determining the common intention of the parties, the courts will choose, from among the various possible interpretations of common intention, that which best reconciles the interests of the parties when the treaty was made (Sioui, SCC; Restoule, SCC). The courts have rejected a “frozen-in-time” approach to treaty interpretation in favour of one that allows treaty language to be interpreted meaningfully in the present day, in a way that recognizes the evolution of practices over time (Marshall No. 1, SCC; Simon, SCC; Restoule, SCC). What must be asked is whether the modern activity in question represents a “logical evolution” from the traditional activity at the time the treaty was made (R v Morris, 2006 SCC 59; Marshall No. 1, SCC). The honour of the Crown informs the purposive approach to the interpretation of treaties (Marshall No. 1, SCC; Restoule, SCC). Treaties are to be interpreted in a manner that upholds the integrity of the Crown, and no appearance of sharp dealing will be sanctioned (Badger, SCC).

Words in the text of a treaty are to be given the sense they would naturally have held for the signatories at the time it was made. (Badger, SCC; Nowegijick v The Queen, [1983] 1 SCR 29). The text of the documents is to be liberally construed, with ambiguities or doubtful expressions resolved in favour of the Indigenous signatories(Simon, SCC; Sioui, SCC; Badger, SCC; Restoule, SCC).  At the same time, the interpretation must be realistic and reflect the intentions of both parties. (Mikisew, 2005, SCC,). Terms or rights may be implied where necessary to give meaningful effect to express rights (Marshall No. 1, SCC) or to protect activities incidental to the exercise of those express rights (Simon, SCC).

Contextual evidence also plays a significant role in historic treaty interpretation (R v Horseman, [1990] 1 SCR 901; R v Sundown, [1999] 1 SCR 393; Badger, SCC). The conduct of the parties following the making of the treaty may be part of this context (Marshall No. 1, SCC). Sensitivity is to be given to cultural and linguistic differences in determining the parties’ respective understandings and intentions (Badger, SCC; Horseman, SCC; Restoule, SCC). Since a court must consider both the words of a treaty and the historical and cultural context, the SCC has held that it is useful to approach treaty interpretation in two steps: at the first step, the court focuses on the words of the treaty clause at issue and identifies the range of possible interpretations, and at the second step, the court considers those interpretations against the treaty’s historical and cultural backdrop and determines which one comes closest to reflecting the parties’ common intention (Marshall No. 1, SCC; Restoule, SCC).

Some examples of Treaty rights that have been upheld are a treaty right to fish and trade for sustenance (Marshall No. 1, SCC), a treaty right to hunt for food (Badger, SCC), a treaty right to hunt and its incidental right to possess a rifle and ammunition in a safe manner (Simon, SCC). Treaty rights were enforceable before section 35 came into force in 1982; the Constitution Act, 1982 did not create a new cause of action (Shot Both Sides, SCC). The conclusion of the treaty-making process creates active and binding obligations on the Crown. While limitation periods set out in legislation apply to treaty claims, they cannot bar courts from exercising their discretion to issue declarations on the constitutionality of the Crown’s conduct and the legal rights of Indigenous parties where it can promote reconciliation and assist to restore the nation-to-nation relationship (Shot Both Sides, SCC)

Modern treaties

“Modern treaties” refer to the body of land claim agreements made from and including the time of the James Bay and Northern Quebec Agreement of 1975. However, the distinction between historic and Modern treaties or land claim agreements is not a precise or immutable one, as today’s modern treaty will eventually become tomorrow’s historic one (Beckman, SCC). Consult the list of Modern treaties.

The rights in Modern treaties are afforded the same constitutional protection as those in Historic treaties by virtue of section 35(3), which states that “…for greater certainty, in subsection (1), “Treaty rights” includes rights that now exist by way of land claim agreements or may be so acquired.”

The interpretive principles applicable to Modern treaties differ in certain ways from those applicable to Historic treaties. This divergence reflects the different context in which Modern treaties are made, and the specificity and currency of their content. The fact that Modern treaties are generally negotiated by well-resourced parties aided by legal counsel and other experts has been recognized by the Supreme Court of Canada as distinguishing them from Historic treaties (Beckman, SCC; Quebec (Attorney General) v Moses, 2010 SCC 17). This in turn influences how Modern treaties are interpreted. In interpreting Modern treaties, a greater emphasis is placed on the text of the treaty document itself and greater judicial deference is given to the parties’ intentions as expressed in the written agreement, compared to Interpreting historic treaties (Moses, SCC; First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58).

At the same time, Modern treaties are not interpreted as “everyday commercial contracts” (Beckman, SCC). The general principles of treaty interpretation are purposive interpretation based on the common intention of the parties and the honour of the Crown.