[Makarov]

Originally Posted by Cecil Terwilliger

Even if it was a bit tangential, I can't disagree with what Cliff is getting at.

We've set aside these lands and rules, according to the treaties, but much like interpreting anything from 200 years ago, like the US constitution, there's no way that our modern technology was factored into the original agreements. Our modern interpretations must evolve as society and technology does. And yes, many of these decisions are derived from more modern court interpretations but those are based on the treaties we have. These aren't tribes in the rainforests of Brazil who haven't discovered the white man or technology yet. But for some reason that type of interpretation continues whenever we discuss indigenous rights. At some point we need to examine their rights through a modern lens and realize that we need to work together to come up with a new solution.

It is worth examining whether indigenous people can live the life our ancestors "promised" them. I'm of the opinion that it is impossible and we need a full teardown of the current structure but we all know why that's basically a no-go.

Or maybe I'm completely missing the point. That's not impossible either.

The bolded is (roughly speaking) the courts' interpretative approach to treaties and treaty rights in Canada:

It was established in Simon, supra, at p. 402, that treaty provisions should be interpreted “in a flexible way that is sensitive to the evolution of changes in normal” practice, and Sundown, supra, at para. 32, confirms that courts should not use a “frozen-in-time” approach to treaty rights.

SOURCE: R. v. Simon, para 53.
LINK: https://scc-csc.lexum.com/scc-csc/sc.../1739/index.do