Developments in Aboriginal Law: The 2009-2010 Term: The Year When Treaties Became Contracts

52 Supreme Court Law Rev. (2d) 1

24 Pages Posted: 6 Jul 2012

See all articles by Constance MacIntosh

Constance MacIntosh

Dalhousie University - Schulich School of Law

Date Written: July 5, 2010

Abstract

There was only one decision released by the Supreme Court of Canada this year which squarely fell within the realm of Aboriginal law, Quebec (Attorney General) v. Moses. This decision is significant in part because it is the Supreme Court of Canada's first foray into interpreting a recent treaty: the 1975 James Bay and Northern Quebec Agreement. Prior to this, all of the jurisprudence had considered treaties that had been entered into between the 1700s3 and the early 1920s. In hearing these cases, the Supreme Court has developed a complex series of unique principles for interpreting the terms of Crown-Aboriginal treaties. This case presented the opportunity for the Supreme Court to provide guidance on whether and how these principles of interpretation apply in the context of more recent treaties. This matter is of general concern given that many treaties have been negotiated in the last few decades. The two sets of reasons in this case illustrate a harsh split, as the five-member majority and the four-member dissent disagreed on fundamental aspects of the law. The majority seemed to conclude that the treaty was to be interpreted largely as though it is a contract. The dissent, on the other hand, considered how the existing principles of treaty interpretation apply in the circumstances in which this specific treaty was entered into. As a result, the majority established that the proper approach for interpreting modern treaties — like interpreting contracts — is to focus on the plain meaning of the words in the document. The dissent, on the other hand, endorsed an approach which places the words into the context in which the treaty was negotiated, and which interprets those words in light of the intentions of the signatories. These vastly divergent approaches led to two radically different sets of reasons.

Keywords: Aboriginal law, treaty, contract

Suggested Citation

MacIntosh, Constance, Developments in Aboriginal Law: The 2009-2010 Term: The Year When Treaties Became Contracts (July 5, 2010). 52 Supreme Court Law Rev. (2d) 1, Available at SSRN: https://ssrn.com/abstract=2101129

Constance MacIntosh (Contact Author)

Dalhousie University - Schulich School of Law ( email )

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6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

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