HONOUR THE TREATIES

MEET CYNTHIA WESTAWAY
Cynthia is Senior Counsel at the First Peoples Law LLP office in Ottawa, Ontario and a Certified Specialist in Aboriginal Law with The Law Society of Ontario. First Peoples Law represents Indigenous clients in consultation, rights, Title and Treaty, governance, and economic development matters.

Cynthia was always attracted to law and advocacy as tools to change society for the better, wanting to do whatever she could to improve the lives of others. Her very early career was as a professional ballet and modern dancer in Winnipeg, Vancouver and New York.  Advocating for the dancers and musical artists union led her to law school.  She imagined becoming an entertainment lawyer but fell in love with public law and human rights.  A stint as clerk at the Federal and then Supreme Court lead her to Aboriginal law.   

Cynthia holds degrees in dance/literature, law and comparative law studying the legal regimes for Indigenous Peoples of New Zealand, Australia, Canada and the US. She relies on her experience as Senior Counsel at the Aboriginal Affairs, DOJ Canada and as the Director General and Head of Justice Legal Services for Global Affairs. 
 

First Reading

The first passage is a portion of the comments from Justice McLachlin (dissenting) setting out key principles that govern Treaty interpretation.  They are from the case of R v Marshall.

1.  Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation.

2.  Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories

3.   The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed

4.  In searching for the common intention of the parties, the integrity and honour of the Crown is presumed

5. In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties.

6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time.

7.  A technical or contractual interpretation of treaty wording should be avoided.

8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic.

9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise.  This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context.

Second Reading

The second passage is from the case of Delgamuukw v British Columbia.  Chief Justice Lamer delivered the following:

Finally, this litigation has been both long and expensive, not only in economic but in human terms as well…

Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve... “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”.  

Let us face it, we are all here to stay.