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.
