On the Land Cession Provisions in Treaty II

This paper provides evidence that, notwithstanding the written text, Treaty II was a peace and friendship treaty rather than one in which the Dene surrendered ownership and jurisdiction of their lands to Canada, thereby indicating clearly that oral understandings better reflect the terms of this Canadian treaty (and by implication others of the times) than written accounts do. It concludes by investigating the substantive implications of the finding that ownership and jurisdiction were not transferred on political relations between the Dene and Canada. Certain principles apply in interpreting a treaty. First, a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. Second, the honour of the Crown is always at stake; the Crown must be assumed to intend to fulfill its promises. No appearance of "sharp dealing" will be sanctioned. Third, any ambiguities or doubtful expressions must be resolved in favour of the Indians, and any limitations restricting the rights of Indians under treaties must be narrowly construed. Finally, the onus of establishing strict proof of extinguishment of a treaty or aboriginal right lies upon the Crown. -R v. Badger