The Aboriginal rights discourse of recent decades has sought to foster negotiation processes and a new wave of treaty-making. Two decisions of the Supreme Court of Canada, Moses and Little Salmon, speak directly to principles of interpretation applicable to modern treaties with Aboriginal communities that differ from those applicable to historical treaties. This paper seeks to show the commonalities on this issue between the positions of the different judgments in the two cases. It also draws out the contract-oriented interpretation methods to which the judges adhere, arguing that some of these methods are not necessarily wrong in principle but should preferably be couched within a different “covenantal” conception of modern treaty interpretation. The paper argues that the contract-oriented discourse present in these first Supreme Court of Canada pronouncements on modern treaty interpretation may risk unforeseen consequences, but these judgments at this point have not yet foreclosed the somewhat reoriented conception of modern treaties as covenants rather than mere contracts.
"Contractual and Covenantal Conceptions of Modern Treaty Interpretation."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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