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

o speak of law as too blunt an instrument to resolve the complex and competing interests implicated in the protection of Aboriginal lands and resources ignores the fact that the law is already there -establishing baselines, defining rights, forming and maintaining a range of interests at stake, and actively constituting the relative power of the parties.Instead of whether the law should intervene, this narrative asks on whose behalf should the law intervene." 1 I. THE ARGUMENTTwenty five years after the entrenchment of Aboriginal treaty rights in the Canadian Constitution, and more than 240 years since the Royal Proclamation of 1763 declared that treaty-making would be the legal framework for the future settlement of immigrants to North America, large areas of the law in relation to First Nation treaties remain undeveloped.In Canada, the first two centuries of judicial treatment of Aboriginal treaties saw treaty promises, as enforceable legal rights, virtually ignored by the courts. 2Consider two historical fact situations.First, in England a pawn broker refuses to return a customer's goods unless the customer pays an exorbitant and illegal surcharge.The customer desperately wants his property and submits to the pawnbroker's demands.Since the constitutional entrenchment of treaty rights in 1982, the Supreme Court of Canada has sought to define a path that recognizes the uniqueness of the context of treatymaking and the sui generis nature of treaty promises.While this approach has the merit of acknowledging that it would be inappropriate to import, holus-bolus, principles of law developed in other contexts, it creates a problem.Outside of the areas of treaty law focused on by the Supreme Court of Canada (primarily questions of treaty interpretation and the resolution of conflicts between treaty terms and the general laws of the land) the parties have little guidance as to how the courts might address their treaty disputes.3 Let us term this Situation A. Second, in Situation B, a government official suggests to Anishinabek leaders at Manitoulin Island that unless they surrender one and a half million acres of their ancestral lands, he will be unable to prevent settlers from illegally encroaching on their lands. 4 This article explores why Canadian law has developed principles for resolving the claim in Situation A, yet provides no corresponding framework for the resolution of Situation B. Both situations appear to raise the same The Anishinabek reluctantly submit, exchanging their land for a vague assurance of future consideration.Both Situation A and Situation B occurred in a common law jurisdiction.For Situation A, which occurred in the eighteenth century, the customer's lawyers would have known, at the time, the legal framework under which their client's rights would be adjudged.Further, although the law has evolved since then, any first year law student today could advise the plaintiff as to the legal rules relevant to his grievance.For Situation B, however, the applicable law in the first half of nineteenth century was utterly unclear -and it remains so today.

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