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Treaties are oral agreements negotiated between First Nations and the government and create binding obligations.
Oral Agreements
The terms of the Treaties were agreed to over the course of formal negotiations between the First Nations and the government. For First Nations the Treaty terms are what was agreed to orally in these meetings. Once the negotiations were complete, they were sealed with a traditional pipe ceremony.
The government went on to create written documents to record the agreements. This written text was different from what the First Nations understood to be the terms of the Treaties. They were written in English, a language most did not speak or read.
Peter Erasmus, the Treaty Six interpreter, recounted that the Chiefs focused their understanding of the treaties on the oral discussions.
— No Surrender The Land Remains Indigenous, by Sheldon Krasowski
Courts have said that Treaties are oral agreements and must be interpreted as they would have been understood by the First Nation negotiating the Treaty.
The Supreme Court ruled that any change to a Treaty Right must be managed honourably. This applies even when a Treaty Right is not being denied. This means there is a duty to consult even when limiting rights, such as hunting and fishing rights, which are part of a Treaty.
Binding Promises
Treaty promises are binding and can be enforced in court. The Supreme Court of Canada describes Treaties as solemn, sacred agreements. The Supreme Court has ruled that Treaty terms, both oral and written, need to be interpreted in favour of the First Nation. They are also not frozen in time and can evolve to meet changing conditions.
As early as 1895 the Supreme Court of Canada described fulfilling Treaty promises as involving the “faith and honour of the Crown.” One hundred years later the Supreme Court still stressed that “the honour of the Crown is always at stake” when it is dealing with the rights of Indigenous Peoples and that “it is always assumed that the Crown intends to fulfill its promises.”
