Uniting Canada: Defining Nations Before and After Treaty Signing - Essay Sample

Introduction

At the time when Canada and the nations that were within were entering into treaties, there existed many people who represented different nations. At the time, the definition of a nation was far unknown, and many wondered to define what a nation meant since, at the time, it was only nations that could enter into treaties. The Canadian people before the indigenous and the non-indigenous, they only existed in a single political society, and they had their language. They also existed on their own spiritual beliefs and their political institutions. They possessed their land base, and they also possess their historic continuity based on the land. In these structures, the Canadians were able to get into different treaties among themselves as various distinct tribes and as distinct nations of the land. In that space and capacity, they would enter into covenants or treaties with the people of the British. The treaties were thus entered into the context of a nation to nation nature. The treaty was crafted to the Canadians to mean that their relationship was to be with the British Crown and also with the successive governments (Getty, 1983).

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Legal Interpretation

The legal context of the interpretation of treaties has been a major struggle for three generations. Laced up with various approaches for common law for consideration with the treaties, including contract law, international law and also statutory construction, courts in Canada realized how treaties with the Indians were not international treaties, and also the international law principles, though they have been assistance in analogy, they are not determinative. The applications of the rules of contract obligations were made very strict. Because of the specific character of the agreement of the treaty and that of the public nature, the approach of the court was meant to create a "sui generis" and "new" as the set of the interpretive treaty rules. The Canadian Supreme Court realized that the wordings in the treaty could not be interpreted in their technical nature, nor should they be subjected to various modern rules for the construction.

The principles or philosophies to this approach include:

Liberal Interpretation - here, the Supreme Court ruled that the wording relating to the treaties ought to be given a broad just liberal construction and a doubtful expression that is to be resolved in favor of the Indians. It has always been assumed that the Crown intends to fulfill its promises and that any limitations that restrict the various rights of the Indians under the treaty ought to be constructed narrowly. The reason for the resolution being in favor of the Indians was in relation to the unequal bargaining power.

The "not too favorable" era -This philosophy is concerning the decision by the Marshall in the late 1990s, which was characterized by the strong pronunciation of the interpretation of the treaty. Both the minority and the majority judgments take the same interpretation principle and start their analysis of the treaty with a written text of the treaty but came in entirely different. The philosophy can be noted in the Ermieskin ruling, where the courts ruled that the ambiguous promises of a treaty ought to be interpreted in a way that is most favorable to the Aboriginal signatories, which do not take the meaning that an interpretation is favored but unrealistic to be selected.

"Common Intention" - Finding the common intention between parties means that the wordings used in the treaties ought not to be interpreted in very strict technical nature nor be subjected in the modern construction rules but rather be interpreted in the nature that is naturally understood by Indians during the point of signing.

The Spirit and Intent Approach

The commission of Canada uses the term intent and spirit as translations that the parties of the treaty voiced in the negotiations of the treaty are the underlying reasoning towards entering into the treaty, and the outcome expected include mutual benefit, sharing, and co-existence. The commission requires the treaties to be approached as liberal and in a flexible manner. Spirit and intent relating to historical treaties need to be discovered and restored based on the implementation of the treaty. The cross-cultural nature of the treaty formulation led to consent on various vital points regarding the historical treaties (Frideres, and Rene. Gadacz, 2012).

The philosophies of this approach include common ground, co-existence, and sharing. During the formulation of the treaties, the indigenous Indians and the non-indigenous Canadians needed to understand their existence in the country and a better understanding of the terms of contracts. These three philosophies as used in the contracts, helped the Indians to better understand the nature of the drafting of the contracts also be able to live and co-exists with the others, and this brings about the spirit of sharing and co-existing in a nation with multiple cultures and people of various nations.

Literal Approach

The literal approach in treaties relates to the wording of contracts and the nature of understanding of word context in contracts. The wording is mostly applied to detail all the information and details that will cover the breadth of the contract. The various philosophies and principles that pertain the literal approach of contracts in Canada include the following;

Determine the meaning of the Provision - this relates to making meaning to the ordinary words that come upon reading the immediate context. The immediate context, in this case, relates to the internal and the external elements in the contracts.

Identify the doubtful words - they include the expressions or words that, in a way, might prove to be self doubtful and present facts in question. The most legal framework contains two parts, which include the legal consequence and a legal situation. The legal fact contains the factual situation that is presented in the conditions that are set to be met right before the legal consequences operate. In order to identify if a provision applies, the first step is to identify the actual situation set in the provision. The second required in the provision is to compare the situation presented in the legal framework word by another for the identification of the areas with a question (Mitchell, 2018).

Consider the entire text - This philosophy includes the entire part of the contract by which the words appear in relation to the legislation and the whole statutory.

Consider "intention of the parliament" - it is important to refer the wording used in the contract to the intention of the parliament. Considering the intention of the parliament is important in any formulation of a contract because it gives you a better understanding of the wording used and the intention of the parliament of Canada for a comprehensive view and understanding of the whole contract.

Conclusion

Interpretation of contracts in Canada travels through history as a very comprehensive process because the nation was founded under different people from different nations. There was a need for equity and justice when formulating and contractual interpretation laws because the country was founded under different cultures. Understanding the context of a contract through wording and reaching an oral consensus are very basic principles that should guide anyone in the interpretation of any contract.

References

Frideres, J. S., & Rene R.. Gadacz. (2012). Aboriginal peoples in Canada. Pearson.

Getty, I. L. (1983). As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies (Vol. 1). UBC Press.

Mitchell, C. (2018). Interpretation of contracts. Taylor & Francis.