Treaties, Indigenous Rights, and Section 35 in Canada
Treaties, Indigenous Rights, and Section 35
The phrase “law at the edge of empire,” used by historian Peter Hoffer, really shows how messy and complicated the treaties between the British and Indigenous peoples were during colonization. Hoffer meant that these treaties sat in a space where British law met Indigenous law; neither side saw things the same way. The British wanted treaties to bring Indigenous nations into their legal system, but Indigenous peoples already had their own laws, customs, and governments. Because of that, treaty-making wasn’t a simple legal act—it was a meeting of two completely different ways of understanding the world. The fact that these treaties are still protected under Section 35 of the 1982 Constitution shows how those early agreements still matter today.
Conflicting Perspectives and Mi’kmaq Treaties
Looking back, it’s clear that these treaties were more than just written contracts. For example, the Mi’kmaq treaties from the 1700s were meant as peace and friendship agreements, not land surrenders. The Mi’kmaq understood them as promises to live alongside the British, share resources, and respect each other’s laws. The British, though, saw them as a way to claim authority and expand control. This basic difference caused a lot of confusion and conflict later on.
Oral and Written Traditions
A big issue was the difference between oral and written traditions. Indigenous nations relied on spoken agreements, ceremonies, and memory, while the British depended on written documents in English. When the British ignored the oral parts of these agreements, they often left out what Indigenous peoples saw as the most important parts. So while both sides signed the same treaty, they walked away with completely different understandings of what it meant.
Colonial Power and Treaty Interpretation
Over time, as the British gained more power, their version of the treaties became the official one. Courts and governments started to interpret the treaties in very narrow ways, especially around land, hunting, and fishing rights. Indigenous peoples saw these rights as permanent and tied to their way of life, but colonial authorities treated them as privileges they could limit or take away. This led to long legal fights that continue even today.
Section 35 and Judicial Role
When Section 35 was added to the Constitution in 1982, it recognized and protected existing Aboriginal and treaty rights. This was a big step forward, but it didn’t actually define what those rights are. So courts have had to figure that out through cases, which has created a lot of debate. Judges now try to interpret treaties in ways that respect both sides, especially how Indigenous peoples would have understood them at the time. They’re supposed to consider oral history and cultural context, not just the English text.
Ongoing Challenges
Still, it’s not easy. A lot of original records are missing, and the power imbalance at the time makes it hard to know exactly what both sides agreed to. Many disputes—like over land use or fishing rights—show that treaties were never meant to be one-time deals. They were living agreements meant to evolve over time, based on mutual respect.
During the colonial period, Canadian courts also avoided recognizing Indigenous nations as truly sovereign, which added even more confusion about their legal status. That uncertainty still affects how treaties are understood today.
Conclusion
In the end, Hoffer’s idea of “law at the edge of empire” reminds us that treaties were created where two legal systems met but never fully merged.