Supreme Court of Canada, Marshall, Crown, aboriginals, treaties, legal history, lawyers, judges, Covenant Chain
The decision of the Supreme Court of Canada in R. v. Marshall raises some difficult questions about the interpretation of Crown-Aboriginal treaties, especially treaties dating from the eighteenth century. The Court acknowledged that the treaty context is important to establishing the meaning of treaty texts, and Aboriginal and non-Aboriginal perspectives must be considered. As a result, judges must have regard to historical analyses of Crown-Aboriginal relations when interpreting these old treaties. In this article, the author explores some of the complex theoretical problems that such legal-historical analyses create, focusing in particular upon the possibility that lawyers and judges may reach very different understandings about the meanings of old treaties than historians. As a vehicle for exploring this problem, the author considers competing approaches to the definition of the 'Covenant Chain' treaties. He argues that although British and Aboriginal peoples appeared to define the effect of the Covenant Chain on Aboriginal sovereignty very differently, British officials always acknowledged the Aboriginal perspective. Examination of evolving attitudes about the Covenant Chain in three separate periods (1763-65, 1783-94 and 1830-60) confirm that sometimes this official acknowledgement was a subordinate one and at other times it was elevated to a dominant position. The author concludes by considering whether legal and historical interpretations about shifting approaches to this treaty may lead to different understandings about Aboriginal sovereignty or, in other words, about the inherent right of Aboriginal self-government.
Mark D. Walters, "Brightening the Covenant Chain: Aboriginal Treaty Meanings in Law and History After Marshall" (2001) 24:2 Dal LJ 75.