This paper investigates how the classical Westphalian model of the state has set, and continues to set, the boundaries of Aboriginal treaty interpretation. It argues that the conceptual presuppositions of this model have served to distinguish the treaties with Aboriginal peoples from international treaties. It maps out how these presuppositions are built into the Canadian case law on Aboriginal treaty interpretation and goes on to point out that these presuppositions do not fit the historical facts. By drawing out the conceptual underpinning of this thread, this paper shows how the Aboriginal treaties (as documents of inter-societal law) present a conceptual challenge to the Westphalian model that renders it inapplicable to the Canadian context and calls for a plurinational model of the state as an alternative.
Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty
Canada in International Law at 150 and Beyond Paper No. 1