Overview - The St. Catherine's Milling Case
For more than a hundred years after it was enacted, the Royal Proclamation of 1763 stood as the British Crown’s most authoritative statement on Aboriginal title. But during this period the Proclamation itself received little to no scrutiny in the common law courts. This changed dramatically when the Chancery Division of the High Court of Ontario issued its decision in St. Catherine’s Milling and Lumber Co. v R in 1886, followed by subsequent appeals all the way to the Judicial Committee of the Privy Council—at that time, Canada’s highest court of appeal. The case would chart the course for the common law doctrine of Aboriginal title in Canada for well into the next century.
Set in the two decades after Confederation in 1867, the background dispute in St. Catherine’s Milling between the Province of Ontario and the Dominion Government (Canada) was nominally about which level of government held title to public lands within the geographic boundaries of Ontario that had—according to Canada’s interpretation of treaty rights—been ceded to the Crown by the Saulteaux (Nahkawininiwak) of the Anishinaabe Nation as part of Treaty 3 (the North-West Angle Treaty). In the course of trying to resolve that dispute, the common law courts pronounced on the nature of Aboriginal title in ways that had far-reaching consequences. At issue in St. Catherine’s Milling is not the courts’ interpretation of Treaty 3 rights, but of the land rights that preceded that treaty as a matter of the common law doctrine of Aboriginal title.
To understand St. Catherine’s Milling and is implications, it is important to appreciate the context in which the question of Aboriginal title came before the courts. As Kent McNeil observes in his history of the case, “[t]he 1880s were years of adversity and deprivation for Indigenous peoples, who were facing the unrelenting advance of imperialism in various parts of the world.”1 “During the same period,” McNeil writes, “the taking of Indigenous lands, suppression of Indigenous political authority, and forced assimilation were also proceeding in Canada,”2 underpinned by the rising prominence of social darwinism and by westward economic expansion and resulting, among other abuses, in the creation of the residential school system.
The Facts and Law in St. Catherine’s Milling #
The facts and law in this case are reasonably complicated. Essentially, the case involves an underlying dispute between the Province of Ontario and the Dominion Government (Canada) about who is entitled to use and gain revenue from public lands within the political boundaries of Ontario. Understanding the factual and legal context of the case is a useful exercise in learning how to make sense of a complex legal setting across multiple judicial decisions. Here, I will aim to sketch the outlines of that context to help you interpret the case.
For our purposes, the main legal dispute in St. Catherine’s Milling turns on the interpretation of Section 109 of the Constitution Act, 1867. That provision reads:
- All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
In effect, Section 109 says that any legal entitlements in land “belonging to” the former Province of Canada prior to 1867 (i.e. in lands not held by private interests or otherwise taken up) passed to the Province of Ontario at Confederation. The question in St. Catherine’s Milling was therefore whether or not the rights in land at issue–those that would be subject to Treaty 3 after 1873–“belonged to” the the former Province of Canada before 1867. Lord Watson, in his decision for the Privy Council, refers to these rights as the “beneficial interest” (or “beneficial title”) in the lands, as distinguished from the underlying or radical title, which is held by the Crown.
St. Catherine’s Milling and Lumber Company, the defendant, argued that these land rights did not “belong” to the Province of Canada prior to 1867, because title to those lands was held by the Saulteaux as Aboriginal title–a form of title recognized in and by the Royal Proclamation. The fact of Aboriginal title meant that the land rights did not “belong” to the Province of Canada and therefore could not have passed to Ontario by virtue of Section 109. It was this Aboriginal title, according to the defendant’s view, that was later ceded to the Crown through Treaty 3. On the basis of the “beneficial interest” acquired by Canada through Treaty 3, it granted licenses to the company to engage in forestry on the lands.
The defendant bolstered its argument about Section 109 of the Constitution Act, 1867 by citing another provision in that same Act, namely Section 91(24) which refers to Canada’s jurisdiction over “lands reserved for the Indians”. The basic argument here is that lands subject to Aboriginal title fall within Section 91(24) and are consequently excluded from Section 109.
Ontario disagreed with the defendant’s interpretation of the law, arguing that on “unceded” lands prior to 1867, the beneficial interest in the lands was not held by the Saulteaux under any recognized form of common law title and therefore “belonged to” the Province of Canada, passing to Ontario at Confederation. This argument required Ontario to deny that Aboriginal title is or should be considered a recognized legal interest in land capable of displacing a province’s beneficial interest.
While the dispute in the case is one about the respective entitlements of Ontario and Canada, we are reading the judgments below in order to understand how the judges’ reasons shaped the common law doctrine of Aboriginal title. As it turns out, the answer to the question, “What is Aboriginal title and what is its source?” becomes central to resolving the case. At the same time, it is obvious that the Indigenous communities whose rights were at stake were not actually parties to the case. As becomes clear from the judgments, Indigenous voices and interests were entirely absent in the early development of a legal doctrine that would come to have such enormous significance for Indigenous peoples and communities.
Procedurally, Ontario succeeds at trial before Chancellor Boyd in the Chancery Division of the High Court of Ontario and in every appeal of that decision that follows. In addition to Chancellor Boyd’s decision, we will read Justice Strong’s dissenting judgement at the Supreme Court of Canada and Lord Watson’s decision upon final appeal to the Privy Council in 1888. Each judge approaches the issue of Aboriginal title from a different perspective, and by reading these decisions together we can gain a much deeper understanding of how classical legal thought has shaped common law principles about Indigenous land rights.
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The Many “Forms” of Title #
Last week, we distinguished between possession as control and title as the legal recognition of ownership. One of the fundamental premises of Locke’s theory of property was that–through the exertion of one’s labour–possession can and often does serve as the basis for legally-protected title.
As you read the various decisions in St. Catherine’s Milling this week, you will notice that–on the way to interpreting what Aboriginal title “is” in the common law world view–the judges apparently describe several different forms of “title”. There are a number of complexities here that we won’t delve into, but it is important for our purposes at this point in the course to distinguish between what the judges call “underlying” (or “radical” or “ultimate” or “paramount”) title on the one hand and “beneficial” title on the other.
Underlying title to land derives from something called the common law doctrine of tenure–the feudal system of landholding premised on the idea that all legal rights in land are ultimately held “of” (i.e., subservient to) the Crown. According to this doctrine of tenure, property rights in land in the common law system are never absolute, but are always subject to some deeper or more fundamental legal interest that resides in the Crown.
Beneficial title is an aspect of the property that sits atop the underlying title and is a title that affords its holder the benefits of ownership (for example, the revenue from cutting the timber that grows there or other benefits from making use of the land). According to this system of interconnected legal rights, it is possible and in fact quite normal for the owner of beneficial title (such as a private person) to be different from the owner of the underlying title (generally, the Crown).
It is largely accepted in St. Catherine’s Milling that common law Aboriginal title is not an underlying title. If anything, the judges say, Aboriginal title is a form of beneficial title in land (and some reject even this interpretation). In addition to questions about the nature and source of Aboriginal title at common law we might, of course, ask how the British Crown ever came to acquire the underlying title to lands in what is now called Canada in the first place. This is a question that some courts have answered by turning to the doctrine of discovery and the idea of terra nullius, which asserts that the Crown acquired sovereignty in North America as a matter of international law between European powers that applied to the “discovery” of lands where there were no recognized systems of pre-existing law. We will discuss this aspect of the common law and its influence on the subsequent development of Aboriginal title in later weeks.
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