Are ‘treaties’ even treaties (a settler question)? Joshua Nichols, ‘Sui Generis Sovereignties: The Relationship between Treaty Interpretation and Canadian Sovereignty’, Canada in International Law at 150 and Beyond, 1, 2018


Excerpt: This paper views the Westphalian model as the basis for distinguishing the treaties with Aboriginal peoples from international legal instruments. The model sets a bright either/or line between domestic and international law that continues to distort the reality of the treaties. This same reasoning can be found in Canada’s official response to the Six Nations appeal to the League of Nations in 1923 and again in Canada’s arguments in response to the Mi’kmaw Nation’s complaint to the United Nations Human Rights Committee in 1980. Canada’s 1923 response is a clear example of a blind commitment to the Westphalian model: “Naturally and obviously it was not the intention in this or preceding ‘treaties’ to recognize or infer the existence of any independent or sovereign status of the Indians concerned. Such a principle, if admitted, would apply as much, if not more, to these other groups of Indians as to the Six Nations, and the entire Dominion would be dotted with independent, or quasi-independent Indian States ‘allied with but not subject to the British Crown.’

It is submitted that such a condition would be untenable and inconceivable.” The unstated presumption of the Westphalian model strictly determines the bounds of what is natural and obvious and separates that from what is untenable and inconceivable. This same line remains fixed within the Canadian jurisprudence on treaty interpretation.

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