When Indigenous peoples and the British Crown began entering into treaties with one another, both parties already had rich histories of entering into treaties with different parties. Treaties had long been recognized as fundamental in international relations, especially for developing peaceful cooperation among nations. Indigenous peoples have long claimed that treaties are nation-to-nation agreements that formalized their relationship between Indigenous peoples and Britain, yet it is often assumed that treaties between Indigenous peoples and the British Crown are not international treaties.

International law has shifted from the initial recognition of Indigenous peoples’ sovereign nationhood, to international law being used as a tool to attempt to remove Indigenous peoples’ standing in international law, and, again, toward recognizing Indigenous peoples as subjects of international law. Most recently, the United Nations, in documents including the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), has recognized the potentially international character of Indigenous-Crown treaties. However, Canadian law has yet to consider the ramifications of this international recognition. This paper explores the implications of the international character of Indigenous-Crown treaties for the Canadian law on interpreting treaties, with a focus on treaties 1 to 11, and recommends changes necessary to fully implement the UN Declaration in Canada.

Marking 150 years since Confederation provides an opportunity for Canadian international law practitioners and scholars to reflect on Canada’s past, present and future in international law and governance. This series of essays, written in the official language chosen by the authors, that provides a critical perspective on Canada’s past and present in international law, surveys the challenges that lie before us and offers renewed focus for Canada’s pursuit of global justice and the rule of law.
The project leaders are Oonagh Fitzgerald, director of the International Law Research Program at the Centre for International Governance Innovation (CIGI); Valerie Hughes, CIGI senior fellow, adjunct assistant professor of law at Queen’s University and former director at the World Trade Organization; and Mark Jewett, CIGI senior fellow, counsel to the law firm Bennett Jones, and former general counsel and corporate secretary of the Bank of Canada. The series will be published as a book entitled Reflections on Canada’s Past, Present and Future in International Law/ Réflexions sur le passé, le présent et l’avenir du Canada en matière de droit international in spring 2018.

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