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.

Part of Series

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 were Oonagh E. 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 was published as a book titled 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.