document. In R v Marshall, [1999] 3 SCR 456 at para 14, 177 DLR (4th) 513, Binnie J said:
Subsequent cases have distanced themselves from a “strict” rule of treaty
interpretation, as more recently discussed by Cory J., in Badger, supra, at para. 52:
... when considering a treaty, a court must take into account the context
in which the treaties were negotiated, concluded and committed to
writing. The treaties, as written documents, recorded an agreement that
had already been reached orally and they did not always record the full
extent of the oral agreement: see Alexander Morris, The Treaties of
Canada with the Indians of Manitoba and the North-West Territories
(1880), at pp. 338-42; Sioui, supra, at p. 1068; Report of the Aboriginal
Justice Inquiry of Manitoba (1991); Jean Friesen, Grant me Wherewith
to Make my Living (1985). The treaties were drafted in English by
representatives of the Canadian government who, it should be
assumed, were familiar with common law doctrines. Yet, the treaties
were not translated in written form into the languages (here Cree and
Dene) of the various Indian nations who were signatories. Even if they
had been, it is unlikely that the Indians, who had a history of
communicating only orally, would have understood them any
differently. As a result, it is well settled that the words in the treaty
must not be interpreted in their strict technical sense nor subjected to
rigid modern rules of construction. [Emphasis added.]
“Generous” rules of interpretation should not be confused with a vague sense of
after-the-fact largesse. The special rules are dictated by the special difficulties of
ascertaining what in fact was agreed to. The Indian parties did not, for all practical
purposes, have the opportunity to create their own written record of the
negotiations. Certain assumptions are therefore made about the Crown’s approach
to treaty making (honourable) which the Court acts upon in its approach to treaty
interpretation (flexible) as to the existence of a treaty (Sioui, supra, at p. 1049), the
completeness of any written record (the use, e.g., of context and implied terms to
make honourable sense of the treaty arrangement: Simon v. The Queen, [1985] 2
S.C.R. 387, and R. v. Sundown, [1999] 1 S.C.R. 393), and the interpretation of
treaty terms once found to exist (Badger). The bottom line is the Court’s obligation
is to “choose from among the various possible interpretations of the common
intention [at the time the treaty was made] the one which best reconciles” the
Mi’kmaq interests and those of the British Crown (Sioui, per Lamer J., at p. 1069
(emphasis added)).
[104] In the same case, McLachlin J, at paragraph 78, set out nine principles governing treaty
interpretation:
This Court has set out the principles governing treaty interpretation on many
occasions. They include the following.
1. Aboriginal treaties constitute a unique type of agreement and attract
special principles of interpretation: R. v. Sundown, [1999] 1 S.C.R 393, at
para. 24; R. v. Badger, [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, [1990]
1 S.C.R. 1025, at p. 1043; Simon v. The Queen, [1985] 2 S.C.R. 387, at
p. 404. See also: J. [Sákéj] Youngblood Henderson, “Interpreting Sui
Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman, “Defining
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