Marginalized by Sui Generis - Duress, Undue Influence and Crown-Aboriginal Treaties

Abstract

Since the constitutional entrenchment of treaty rights in 1982, the Supreme Court of Canada has sought to define a path that recognizes the unique, "sui generis" nature of treaty promises. This paper investigates a question that has yet to be explored in detail by the Canadian courts in relation to treaty rights, namely the extent to which exploitative conduct or misrepresentation by the Crown at the time of the treaty will give rise to legal remedies for the Aboriginal party to the treaty. For various reasons, the domestic law of contracts is not and should not be applicable to Crown-Aboriginal treaties. Nevertheless, the absence of equivalent legal content in relation to the treaty formation seems to be a significant gap in the treaty law applied by domestic courts. This paper explores the possible relevance of the principles underlying the common law doctrines of duress and undue influence to the question of consent in historic Crown-Aboriginal treaties. It suggests that those principles are worthy of consideration, at least as minimal reference points, in the development of the sui generis principles applicable to the formation of treaties. The unique relationship of the Crown and Aboriginal peoples renders the use of such reference points more, not less, imperative in the treaty context. The precise sui generis rules governing the effect of coercion and improper pressure in securing consent to a treaty must develop in a manner that respects the special nature and historical context of each treaty.