Essay Example on Canada: A Land of Indigenous and Non-Indigenous People

Introduction

Canada is a land inhabited by both indigenous and non-indigenous people. Indigenous people originated from other countries during trade and labor exchanges and have lived in Canada for centuries. They have possessed land and practiced their diverse cultures alongside the original Canadians. Aboriginal people, as other scholars would refer to them entered into treaties with the Canadian government to agree on peaceful co-existence (Miller, 2009) The treaties were signed by both parties to ensure respect and peaceful trading among various cultures. Despite colonial policies and laws eroding such treaties, the Canadian government today strives to reconcile the indigenous and non-indigenous people to exist peaceful with respect to one another’s, trade, culture, religion, and beliefs. Thus, this paper examines three interpretations of the Canadian treaties, including the literal approach, spirit and intent approach, and the legal approach.

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Literal Approach-The Written Version

Treaties are documented agreements between aboriginal people and the Canadian people that have caused the existence of indigenous and non-indigenous people in Canada (Miller, 2009). They make a central focus of the Canadian constitution. It is due to these treaties that there is a connection between the Treaty First Nations and the Government of Canada. Treaties are essential integration points for nations both historically and politically. Thus, the government of Canada co-exists with other nationalities to ensure that non-Canadians live freely and respectfully in this country. The treaties were conscripted in English by Canadian government representatives who were believed to be well conversant with the common doctrines of law (Miller, 2009). However, the documentation of these treaties was not translated into other Indian languages represented by the signatories. Nonetheless, Indians had a history of preferring oral communication to written communication (Miller, 2009). Hence, whether in English or native languages, they would barely understand the contents of the written treaties. It was then agreed that the words in the written treaties would appear natural for basic interpretation by Indians during the signing.

Article 31 of the Canadian Constitution

According to this article, a treaty can be interpreted in good faith as long as the purpose and meaning are made clear (Duff, 2009). Also, a treaty is interpreted in the contest of the agreement between involved parties and in instrumental conclusion made by either party. During the interpretation, the subsequent agreements and practices between involved parties shall be considered. Thus, any relevant rules described by the international law shall be followed to ensure that the special meaning of the treaty is derived and understood by either party. The article gives the general rules of treaty interpretation.

Article 32 of the Canadian Constitution

The article dictates the supplementary rule of interpretation, the preparatory of the treaties, and the conditions surrounding its conclusion. In so doing, a meaning is drawn from the conclusions made in Article 31 that were unreasonable or ambiguous (Duff, 2009).

Article 33: Interpretation of Treaties Authenticated in Two or More Languages

A treaty that is written in two or more languages indicates a state of authority unless the parties agree otherwise (Duff, 2009). A treaty written in any additional language other than the recognized ones can only be authentic if the content matches that of the original texts or the parties agree. In any of the languages used, the terms must carry the same meaning.

Spirit and Intent Approach

The approach focuses on the interpretation of treaties by the aboriginal people, majorly Indians. Since these treaties were written in English, some phrases were difficult for translation into First Nations’ languages (Brown &Wicken, 2018). For instance, First Nations agreed in a 1725 treaty that they would not inhibit lawfully made settlements or those in progress (Brown & Wicken, 2018). The ambiguity of such a treaty is in the sense that the law is not specified. There is no specific description id the settlements were or would be constructed under the indigenous law, the British law, or a combination of the two. The clarity of such dilemmas can be sought in the European understanding through the documentaries; however, the uncertainty about indigenous existence before 1763 is undocumented since most of the Indians kept their memories orally (Brown & Wicken, 2018). Thus, the memories can only be obtained from tracing ancestries since they were generational.

The oral transmissions of treaties can be found in the Atlantic Region, where First Nation speakers referred to previous treaties in 1749 (Brown & Wicken, 2018). For example, Edward Cornwallis, the then governor of Nova Scotia, asked the Maliseet people of the Atlantic Region if they could recall the previous treaty that they signed. In response, the speaker agreed and said that they had come to renew it. Also, Mi’kmaw leaders confessed to Queen Victoria in 1849 that they could not forget or disbelief what their forefathers had told them about peaceful existence (Brown & Wicken, 2018). Later on, in 1928, seventy-four-year-old Joe Christmas referred to a treaty he had in defense during a Port Hood court session in Cape Breton Island that he had the freedom to fish and hunt (Brown & Wicken, 2018). He admitted that he could not read and had heard it from his grandfathers that the Micmac had made treaties with the whole tribe. Thus, Micmac, Maliseet, and other First Nations kept their memories in wampum belts woven in shells (Brown & Wicken, 2018). They have become mnemonic devices used by the Canadian government and indigenous people.

Legal Interpretation by Canadian and International Courts

Canadian law dictates that legislation of international conventions is mandatory before the enforcement of the law. Thus, international conventions are fused into the law through legislation. Textual incorporation is one of the most functional ways of infusing conventions into law (Duff, 2009). Once the government enacts such acts, the local courts are required to interpret them as part of the law. One theory of interpretation entails referring the new domestic law to existing laws, including provincial privacy laws. Section 8.1 of the Interpretation Act dictates that the complementarity principle is applied to all federal laws unless otherwise stated (Duff, 2009). Thus, the provincial law has no choice but to interpret the international treaties that have already been incorporated into the domestic law by the federal statute. However, the Canadian legal landscape also allows different interpretations based on provincial privacy laws, which vary from one province to another (Duff, 2009). The second theory used in this interpretation is the contextual approach of the international convention (Duff, 2009). In this case, the Supreme Court approves any international convention that complies with Canada’s international obligations.

Conclusion

Conclusively, this paper addresses the various ways in which treaties between indigenous people and the Canadian government are interpreted. The main purpose of the treaties is to achieve peaceful existence between indigenous and non-indigenous people. In these treaties, indigenous or aboriginal people are regarded as members of First Nations who are mainly Indians. The treaties require them to surrender part of their lands to the federal government in exchange for resources, money, reserve land, or any other collateral. Thus, this paper interprets the treaties through the literal approach, the spirit and intent, and the legal approach.

References

Brown, D. & Wicken, W. (2018). Interpreting the Treaties. Historical Agreements between the Crown and the First Nations are Fraught with Ambiguity. https://www.canadashistory.ca/explore/politics-law/interpreting-the-treaties

Duff, D. G. (2003). The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism. Can. Tax J., 51, 1. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/harmonization/ouell/int2.html

Miller, J. R. (2009). Compact, contract, covenant: Aboriginal treaty-making in Canada. University of Toronto Press. https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231