St. Catherine's Milling and Lumber Co. v R

(1886), 10 OR 196 (HC); [1887] 13 SCR 577; [1888] UKPC 70 (JCPC)

Background to the 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 #

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:

109. 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.

Some of the decisions below contain racist language and espouse an explicitly racist ideology. Please be aware of this before you start your reading and contact me if you have concerns about how to read the material or about how we will address it in class. It is a difficult case to read, and we should be mindful of the real harms that this decision continues to perpetrate–not only as “historical” material but also for its lasting influence on the common law of property. I assign this reading because I think it is important to see how the reasoning has grounded and shaped the doctrine of Aboriginal title that we will study throughout the course. Please pay close attention to the ways in which Chancellor Boyd’s racist assumptions about and misrepresentations of Indigenous peoples rely on ideas about “natural order” that we have seen in other materials so far in this course.

High Court of Ontario (Boyd Ch.) #

The Province of Ontario seeks the intervention of the Court in order that the St. Catherines Milling and Lumber Company may be restrained from trespassing and cutting timber on lands claimed by the Province. The defendants justify under license obtained from the Government of Canada in April, 1883, by virtue of which they assert the right to cut over timber limits on the south side of Wabigoon (or Wabegon) Lake, in that portion of Canada situated between Lake Superior and Eagle Lake. The defendants further plead specially that the place in question forms part of a district till recently claimed by tribes of Indians, who inhabited that part of the Dominion, and that such claims have always been recognized by the various Governments of Canada and Ontario, and by the Crown; that such Indian claims were paramount to the claim of the Province of Ontario, and that the Dominion have by purchase acquired the said Indian title, and by reason thereof, as well as by inherent right, the Dominion and not the Province is alone entitled to deal with the said timber limits.

[…]

The colonial policy of Great Britain as it regards the claims and treatment of the aboriginal populations in America, has been from the first uniform and well-defined. Indian peoples were found scattered wide-cast over the continent, having, as a characteristic, no fixed abodes, but moving as the exigencies of living demanded. As heathens and barbarians it was not thought that they had any proprietary title to the soil, nor any such claim thereto as to interfere with the plantations, and the general prosecution of colonization. They were treated “justly and graciously,” as Lord Bacon advised, but no legal ownership of the land was ever attributed to them. The Attorney-General in his argument called my attention to a joint opinion given by a “multitude of counsellors,” about 1675, touching land in New York, while yet a province under English rule. I think it accurately states the constitutional law in these words:

Though it hath been and still is the usual practice of all proprietors to give their Indians some recompense for their land, and so seem to purchase it of them, yet that is not done for want of sufficient title from the King or Prince who hath the right of Discovery, but out of prudence and Christian charity least otherwise the Indians might have destroyed the first planters (who are usually too few to defend themselves) or refuse all Commerce and Conversation with the planters, and thereby all hopes of converting them to the Christian faith would he lost. In this the Common law of England and the Civil law doth agree. … Though some planters have purchased from the Indians yet having done so without the Consent of the Proprietors for the time being, the title is good against the Indians but not against the Proprietors without a confirmation from them upon the usual terms of other Plantations."—Vol. xiii. “Documents relating to Colonial History of the State of New York,” p. 486.

Of the six counsel who sign this opinion, one (Richard Wallop) became Cursitor Baron of the Exchequer; another (Henry Pollexfen) became Chief Justice of the Common Pleas, and a third (Holt) was afterwards Chief Justice of England.

In a classical judgment, Marshall, C. J., has concisely stated the same law of the mother-country which the United States inherited and applied with such modifications as were necessitated by the change of government to their dealings with the Indians. I quote passages from Johnson v. Mcintosh, 8 Wheat., p. 595, &c.:

According to the theory of the British constitution, all vacant lands are vested in the Crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative. … This principle was as fully recognized in America as in the island of Great Britain. … So far as respected the authority of the Crown no distinction was taken between vacant lands and lands occupied by the Indians. … The title, subject to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title.

At p. 588:

All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish that right.

This right of occupancy attached to the Indians in their tribal character. They were incapacitated from transferring it to any stranger, though it was susceptible of being extinguished. The exclusive power to procure its extinguishment was vested in the Crown, a power which as a rule was exercised only on just and equitable terms. If this title was sought to be acquired by others than the Crown, the attempted transfer passed nothing, and could operate only as an extinguishment of the Indian right for the benefit of the title paramount. See judgment of Burns, J., in Doe d. Sheldon v. Ramsay, 9 U.C.R. at p. 133.

[…]

At the time of the conquest, the Indian population of Lower Canada was, as a body, Christianized, and in possession of villages and settlements, known as the “Indian Country.” By the terms of capitulation they were guaranteed the enjoyment of these territorial rights in such lands which, in course of time, became distinctively and technically called “Reserves.” By a Quebec ordinance of Guy Carleton of 1777, (17 George III. ch. 7, sec. 3,) it was declared unlawful for any person to settle in the Indian country within that Province without a written license from the Governor, and no person was allowed to trade without license in any part of the Province upon lands not granted by His Majesty.

But in Upper Canada the native tribes were in an untaught and uncivilized condition, and it became necessary to work out a scheme of settlement which would promote immigration and protect both red and white subjects so that their contact in the interior might not become collision. A modus vivendi had to be adjusted. […] The inevitable problem in view of the necessary territorial constriction of the Indian occupants of those vast expanses over which they and their forefathers have fished and hunted and trapped from time immemorial was and is this: how best to subserve the welfare of the whole community and the state, how best to protect and encourage the individual settler, and how best to train and restrain the Indian so that being delivered by degrees from dependency and pupillage, he may be deemed worthy to possess all the rights and immunities and responsibilities of complete citizenship. These three considerations, mainly, have shaped the policy of the Government in the past as in the present.

[…]

But it is argued for the defendants that the key to unlock the meaning of the Act of 1867 must be sought in the Royal Proclamation of 1763.

The scope and object of that instrument, therefore, require to be considered. The primary intent of the proclamation was to provide, temporarily, for the orderly conduct of affairs in the settled parts of all the territory newly acquired in America, which was for that purpose subdivided into the four Governments of Quebec, East Florida, West Florida, and Grenada, and to encourage further settlement by the promise of the immediate enjoyment of English law. Power was conferred upon the governors and councils of the three colonies on the continent to grant such lands as were then or thereafter should be in the power of the Crown to dispose of, on such terms and conditions as might be necessary and expedient for the advantage of the grantees, and the improvement and settlement of the colonies. So far as lands lay without the limits of these colonies, the governors were forbidden to grant patents, or to deal with them, and this chiefly on account of the several nations or tribes of Indians who were living under British protection. That prohibition was to last only “for the present, and till the King’s further pleasure” should be known, and it is preceded by a recital that it is just, and reasonable, and essential to our interest, and the security of our colonies, that such Indians with whom we are connected, and who live under our protection should not be molested or disturbed in the possession of such parts of our dominions and territories, as not having been ceded to or purchased “by us, are reserved for them or any of them, as their hunting grounds.”

The proclamation next proceeds to deal with that part of the country which would then embrace the land now in question as follows: “And we do further declare it to be our Royal will and pleasure, for the present, as aforesaid, to reserve under our sovereignty, protection, and dominion for the use of the said Indians all the lands and territories not included within the limits of the territory granted to the Hudson’s Bay Company; as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the West and North-West as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatsoever, or taking possession of any of the lands above reserved without our especial leave and license for that purpose first obtained; and we do further strictly enjoin and require all persons whatsoever, who have either wilfully or inadvertently seated themselves upon any lands within the countries above described, or upon any other lands which not having been ceded to, or purchased by us are still reserved to the said Indians, as aforesaid, forthwith, to remove themselves from such settlements.”

The proclamation then forbids private persons from presuming to make any purchases from the Indians of any lands reserved to the said Indians “within those parts of our colonies where we have thought proper to allow settlement,” and directs that if at any time the Indians shall be inclined to dispose of the said lands, the same shall be purchased for us at some public meeting of the Indians to be held for that purpose by the Governor of the colony within which they shall lie.

This proclamation has frequently been referred to, and by the Indians themselves, as the charter of their rights, and the last clause I have condensed relating to the manner of dealing with them in respect to lands they occupy at large, or as a reserve, has always been scrupulously observed in such transactions.

[…]

There is an essential difference in meaning between the “reservations” spoken of in the Royal Proclamation, and the like term in the B.N.A. Act. The proclamation views the Indians in their wild state, and leaves them there in undisturbed and unlimited possession of all their hunting ranges, whereas the Act, though giving jurisdiction to the Dominion over all Indians, wild or settled, does not transfer to that government all public or waste lands of the Provinces on which they may be found at large.

The territorial jurisdiction of the Dominion extends only to lands reserved for them. Now it is evident from the history of “the reserves,” that the Indians there are regarded no longer as in a wild and primitive state, but as in a condition of transition from barbarism to civilization. The object of the system is to segregate the red from the white population, in order that the former may be trained up to a level with the latter. The key-note of the whole movement was struck unmistakably in 1838, by Lord Glenelg, in his instructions to Sir Francis Bond Head: (Appendix to Journals of Assembly, 1837-8, p. 180.) He wrote thus: “The first step to the real improvement of the Indians is to gain them over from a wandering to a settled life, and for this purpose it is essential that they should have a sense of permanency in the locations assigned to them; that they should be attached to the soil by being taught to regard it as reserved for them and their children by the strongest securities.” The distinctive feature of the system in Canada was the grouping of the separate tribes for the purposes of exclusive and permanent residence within circumscribed limits. Those limits were almost invariably allocated at their usual centres of settlement, and within the ambit of their respective hunting ranges as recognized among themselves. Contrasted with this is the plan chiefly followed in the United States, where the main object has been to mass all the Indian nations and tribes in one vast district called “The Indian Territory,” which comprises an area of about 70,000 square miles. But in Canada, the bounds of the separate reserves being ascertained by survey or otherwise, the various communities betake themselves thereto as their “local habitation.” Here they are furnished with appliances and opportunities to make themselves independent of the precarious subsistence procured from the chase; they are encouraged to advance from a nomadic to an agricultural or pastoral life, and thus to acquire ideas of separate property, and of the value of individual rights to which, in their erratic tribal condition, they are utter strangers, so that, ultimately, they may be led to settle down into the industrious and peaceful habits of a civilized people.

Again: the relations between the Government and the Indians change upon the establishment of reserves. While in the nomadic state they may or may not choose to treat with the Crown for the extinction of their primitive right of occupancy. If they refuse the government is not hampered, but has perfect liberty to proceed with the settlement and development of the country, and so, sooner or later, to displace them. If, however, they elect to treat they then become, in a special sense, wards of the State, are surrounded by its protection while under pupillage, and have their rights assured in perpetuity to the usual land reserve. In regard to this reserve the tribe enjoy practically all the advantages and safeguards of private resident proprietors: Bastien v. Hoffman, 17 L. C. R. 238. Before the appropriation of reserves the Indians have no claim except upon the bounty and benevolence of the Crown. After the appropriation, they become invested with a legally recognized tenure of defined lands; in which they have a present right as to the exclusive and absolute usufruct, and a potential right of becoming individual owners in fee after enfranchisement. It is “lands reserved” in this sense for the Indians which form the subject of legislation in the B.N.A. Act, i. e., lands upon which or by means of the proceeds of which, after being surrendered for sale, the tribes are to be trained for civilization under the auspices of the Dominion. It follows that lands ungranted upon which Indians are living at large in their primitive state within any Province form part of the public lands, and are held as before Confederation by that Province under various sections of the B.N.A. Act. [See sees. 92 (item 5), also sees. 6, 109 and 117.] Such a class of public lands are appropriately alluded to in section 109 as lands belonging to the Province in which the Indians have an interest, i. e., their possessory interest. When this interest is dealt with by being extinguished, and by way of compensation in part, reserves are allocated, then the jurisdiction of the Dominion attaches to those reserves. But the rest of the land in which “the Indian title” so called has not been extinguished remains with its character unchanged as the public property of the Province.

[…]

Supreme Court of Canada (Strong J., dissenting) #

Strong J. — #

[…]

In the Commentaries of Chancellor Kent and in some decisions of the Supreme Court of the United States we have very full and clear accounts of the policy in question. It may be summarily stated as consisting in the recognition by the crown of a usufructuary title in the Indians to all unsurrendered lands. This title, though not perhaps susceptible of any accurate legal definition in exact legal terms, was one which nevertheless sufficed to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the crown itself, in whom the ultimate title was, in accordance with the English law of real property, considered as vested.

This short statement will, I think, on comparison with the authorities to which I will presently refer, be found to be an accurate description of the principles upon which the crown invariably acted with reference to Indian lands, at least from the year 1756, when Sir William Johnston was appointed by the Imperial Government superintendent of Indian affairs in North America, being as such responsible directly to the crown through one of the Secretaries of State, or the Lords of Trade and Plantation, and thus superseding the Provincial Governments, down to the year 1867, when the confederation act constituting the Dominion of Canada was passed. So faithfully was this system carried out, that I venture to say that there is no settled part of the territory of the Province of Ontario, except perhaps some isolated spots upon which the French Government had, previous to the conquest, erected forts, such as Fort Frontenac and Fort Toronto, which is not included in and covered by a surrender contained in some Indian treaty still to be found in the Dominion Archives.

These rules of policy being shown to have been well established and acted upon, and the title of the Indians to their unsurrendered lands to have been recognized by the crown to the extent already mentioned, it may seem of little importance to enquire into the reasons on which it was based. But as these reasons are not without some bearing on the present question, as I shall hereafter shew, I will shortly refer to what appears to have led to the adoption of the system of dealing with the territorial rights of the Indians. To ascribe it to moral grounds, to motives of humane consideration for the aborigines, would be to attribute it to feelings which perhaps had little weight in the age in which it took its rise. Its true origin was, I take it, experience of the great impolicy of the opposite mode of dealing with the Indians which had been practised by some of the Provincial Governments of the older colonies and which had led to frequent frontier wars, involving great sacrifices of life and property and requiring an expenditure of money which had proved most burdensome to the colonies. That the more liberal treatment accorded to the Indians by this system of protecting them in the enjoyment of their hunting grounds and prohibiting settlement on lands which they had not surrendered, which it is now contended the British North America Act has put an end to, was successful in its results, is attested by the historical fact that from the memorable year 1763, when Detroit was besieged and all the Indian tribes were in revolt, down to the date of confederation, Indian wars and massacres entirely ceased in the British possessions in North America, although powerful Indian nations still continued for some time after the former date to inhabit those territories.

That this peaceful conduct of the Indians is in a great degree to be attributed to the recognition of their rights to lands unsurrendered by them, and to the guarantee of their protection in the possession and enjoyment of such lands given by the crown in the proclamation of October, 1763, hereafter to be more fully noticed, is a well known fact of Canadian history which cannot be controverted. The Indian nations from that time became and have since continued to be the firm and faithful allies of the crown and rendered it important military services in two wars — the war of the Revolution and that of 1812.

The American authorities, to which reference has already been made, consist (amongst others) of passages in the commentaries of Chancellor Kent, in which the whole doctrine of Indian titles is fully and elaborately considered, and of several decisions of the Supreme Court of the United States, from which three, Johnston v. McIntosh, Worcester v. State of Georgia, and Mitchell v. United States, may be selected as leading cases. The value and importance of these authorities is not merely that they show that the same doctrine as that already propounded regarding the title of the Indians to unsurrendered lands prevails in the United States, but, what is of vastly greater importance, they without exception refer its origin to a date anterior to the revolution and recognise it as a continuance of the principles of law or policy as to Indian titles then established by the British government, and therefore identical with those which have also continued to be recognized and applied in British North America. Chancellor Kent, referring to the decision of the Supreme Court of the United States, in Cherokee Nation v. State of Georgia, says: —

The court there held that the Indians were domestic, dependent nations, and their relation to us resembled that of a ward to his guardian; and they had an unquestionable right to the lands they occupied until that right should be extinguished by a voluntary cession to our government.

On the same page the learned commentator proceeds thus: —

The Supreme Court in the case of Worcester reviewed the whole ground of controversy relative to the character and validity of Indian rights within the territorial dominions of the United States, and especially with reference to the Cherokee nation within the limits of Georgia. They declared that the right given by European discovery was the exclusive right to purchase, but this right was not founded on a denial of the Indian possessor to sell. Though the right of the soil was claimed to be in the European governments as a necessary consequence of the right of discovery and assumption of territorial jurisdiction, yet that right was only deemed such in reference to the whites; and in respect to the Indians it was always understood to amount only to the exclusive right of purchasing such lands as the natives were willing to sell. The royal grants and charters asserted a title to the country against Europeans only, and they were considered as blank paper so far as the rights of the natives were concerned. The English, the French and the Spaniards were equal competitors for the friendship and aid of the Indian nations. The Crown of England never attempted to interfere with the national affairs of the Indians further than to keep out the agents of foreign powers who might seduce them into foreign alliances. The English Government purchased the alliance and dependence of the Indian Nations by subsidies, and purchased their lands when they were willing to sell at a price they were willing to take, but they never coerced a surrender of them. The English Government considered them as nations competent to maintain the relations of peace and war and of governing themselves under her protection. The United States, who succeeded to the rights of the British Crown in respect of the Indians, did the same and no more; and the protection stipulated to be afforded to the Indians and claimed by them was understood by all parties as only binding the Indians to the United States as dependent allies.

Again the same learned writer says;

The original Indian Nations were regarded and dealt with as proprietors of the soil which they claimed and occupied, but without the power of alienation, except to the Governments which protected them and had thrown over them and beyond them their assumed patented domains. These Governments asserted and enforced the exclusive right to extinguish Indian titles to lands, enclosed within the exterior lines of their jurisdictions, by fair purchase, under the sanction of treaties; and they held all individual purchases from the Indians, whether made with them individually or collectively as tribes, to be absolutely null and void. The only power that could lawfully acquire the Indian title was the State, and a government grant was the only lawful source of title admitted in the Courts of Justice. The Colonial and State Governments and the government of the United States uniformly dealt upon these principles with the Indian Nations dwelling within their territorial limits.

Further, Chancellor Kent, in summarising the decision of the Supreme Court in Mitchell v. United States, states the whole doctrine in a form still more applicable to the present case. He says:

The Supreme Court once more declared the same general doctrine, that lands in possession of friendly Indians were always, under the colonial governments, considered as being owned by the tribe or nation as their common property by a perpetual right of possession; but that the ultimate fee was in the crown or its grantees, subject to this right of possession, and could be granted by the crown upon that condition; that individuals could not purchase Indian lands without license, or under rules prescribed by law; that possession was considered with reference to Indian habits and modes of life, and the hunting grounds of the tribes were as much in their actual occupation as the cleared fields of the whites, and this was the tenure of Indian lands by the laws of all the colonies.

It thus appears, that in the United States a traditional policy, derived from colonial times, relative to the Indians and their lands has ripened into well established rules of law, and that the result is that the lands in the possession of the Indians are, until surrendered, treated as their rightful though inalienable property, so far as the possession and enjoyment are concerned; in other words, that the dominium utile is recognized as belonging to or reserved for the Indians, though the dominium directum is considered to be in the United States. Then, if this is so as regards Indian lands in the United States, which have been preserved to the Indians by the constant observance of a particular rule of policy acknowledged by the United States courts to have been originally enforced by the crown of Great Britain, how is it possible to suppose that the law can, or rather could have been, at the date of confederation, in a state any less favorable to the Indians whose lands were situated within the dominion of the British crown, the original author of this beneficent doctrine so carefully adhered to in the United States from the days of the colonial governments? Therefore, when we consider that with reference to Canada the uniform practice has always been to recognize the Indian title as one which could only be dealt with by surrender to the crown, I maintain that if there had been an entire absence of any written legislative act ordaining this rule as an express positive law, we ought, just as the United States courts have done, to hold that it nevertheless existed as a rule of the unwritten common law, which the courts were bound to enforce as such, and consequently, that the 24th sub-section of section 91, as well as the 109th section and the 5th sub-section of section 92 of the British North America Act, must all be read and construed upon the assumption that these territorial rights of the Indians were strictly legal rights which had to be taken into account and dealt with in that distribution of property and proprietary rights made upon confederation between the federal and provincial governments.

[…]

To summarize these arguments, which appear to me to possess great force, we find, that at the date of confederation the Indians, by the constant usage and practice of the crown, were considered to possess a certain proprietary interest in the unsurrendered lands which they occupied as hunting grounds; that this usage had either ripened into a rule of the common law as applicable to the American Colonies, or that such a rule had been derived from the law of nations and had in this way been imported into the Colonial law as applied to Indian Nations; that such property of the Indians was usufructuary only and could not be alienated, except by surrender to the crown as the ultimate owner of the soil; and that these rights of property were not inaptly described by the words “lands reserved for the Indians,” whilst they could not, without doing violence to the meaning of language, be comprised in the description of public lands which the Provinces could sell and dispose of at their will.

[…]

Appeal dismissed with costs.

Judicial Committee of the Privy Council #

Lord Watson #

[…]

The territory in dispute has been in Indian occupation from the date of the proclamation until 1873. During that interval of time Indian affairs have been administered successively by the Crown, by the Provincial Governments, and (since the passing of the British North America Act, 1867), by the Government of the Dominion. The policy of these administrations has been all along the same in this respect, that the Indian inhabitants have been precluded from entering into any transaction with a subject for the sale or transfer of their interest in the land, and have only been permitted to surrender their rights to the Crown by a formal contract, duly ratified in a meeting of their chiefs or headmen convened for the purpose. Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown. It was suggested in the course of the argument for the Dominion, that inasmuch as the proclamation recites that the territories thereby reserved for Indians had never “been ceded to or purchased by” the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be “parts of the dominions and territories;” and it is declared to be the will and pleasure of the sovereign that, “for the present,” they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion. There was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their Lordships do not consider it necessary to express any opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[…]

The enactment of sec. 109 are, in the opinion of their Lordships, sufficient to give to each Province, subject to the administration and control of its own Legislature, the entire beneficial interest of the Crown in all lands within its boundaries, which at the time of the union were vested in the Crown, with the exception of such lands as the Dominion acquired right to under sec. 108, or might assume for the purposes specified in sec. 117. Its legal affect is to exclude from the “duties and revenues” appropriated to the Dominion, all the ordinary territorial revenues of the Crown arising within the Province. That construction of the statute was accepted by this Board in deciding Attorney-General of Ontario v. Mercer, 8 App. Cas. 767, where the controversy related to land granted in fee simple to a subject before 1867, which became eshceat to the Crown in the years 1871. The Lord Chancellor (Earl Selbourne) in delivering judgment in that case, said, 8 App. Cas. 776: “It was not disputed, in the argument for the Dominion at the bar, that all territorial revenues arising within each Province from ‘lands’ (in which term must be comprehended all estates in land), which at the time of the union belonged to the Crown, were reserved to the respective Provinces by sec. 109; and it was admitted that no distinction could, in that respect, be made between lands then ungranted, and lands which had previously reverted to the Crown by escheat. But it was insisted that a line was drawn at the date of the union, and that the words were not sufficiant to reserve any lands afterwards escheated which at the time of the union were in private hands, and did not then belong to the Crown. Their Lordships indicated an opinion to the effect that the escheat would not, in the special circumstances of that case, have passed to the Province as “lands;” but they held that it fell within the class of rights reserved to the Provinces as “royalities” by sec. 109.

Had its Indian inhabitants been the owners in fee simple of the territory which they surrendered by the treaty of 1873, Attorney-General of Ontario v. Mercer, 8 App. Cas. 767, might have been an authority for holding that the Province of Ontario could derive no benefit from the cession, in respect that the land was not vested in the Crown at the time of the union. But that was not the character of the Indian interest. The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the interest other than that of meaning of sec. 109; and must now belong to Ontario in terms of that clause, unless its rights have been taken away by some provision of the Act of 1867 other than those already noticed.

In the course of the argument the claim of the Dominion to the ceded territory was rested upon the provisions of sec. 91 (24), which in express terms confer upon the Parliament of Canada power to make laws for “Indians, and lands reserved for the Indians.” It was urged that the exclusive power of legislation and administration carried with it, by necessary implication, any patrimonial interest which the Crown might have had in the reserved lands. In reply to that reasoning, counsel for Ontario referred us to a series of provincial statutes prior in date to the Act of 1867, for the purpose of shewing that the expression “Indian reserves” was used in legislature language to designate certain lands in which the Indians had, after the royal proclamation of 1763, acquired a special interest, by treaty or otherwise, and did not apply to land occupied by them in virtue of the proclamation. The argument might have deserved consideration if the expression had been adopted by the British Parliament in 1867, but it does not occur in sec. 91 (24), and the words actually used are, according to their natural meaning, sufficient to include all lands reserved, upon any terms or conditions, for Indian occupation. It appears to be the plain policy of the Act that, in order to ensure uniformity of administration, all such lands, and Indian affairs generally, shall be under the legislative control of one central authority.

Their Lordships are, however, unable to assent to the argument for the Dominion founded on sec. 92 (24). There can be no a priori probability that the British Legislature, in a branch of the statute which professes to deal only with the distribution of legislative power, intended to deprive the Province of rights which are expressly given them in that branch of it which relates to the distribution of revenues and assets. The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been intrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors for ever. It was argued that a cession in these terms was in effect a conveyance to the Dominion Government of the whole rights of the Indians, with the consent of the Crown. That is not the natural import of the language of the treaty, which purports to be from beginning to end a transaction between the Indians and the Crown. Even if its language had been more favourable to the argument of the Dominion upon this point, it is abundantly clear that the commissioners who represented Her Majesty, whilst they had full authority to accept a surrender to the Crown, had neither authority nor power to take away from Ontario the interest which had been assigned to the province by the Imperial Statute of 1867.

These considerations appear to their Lordships to be sufficient for the disposal of this appeal. The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province. The fact, that it still possesses exclusive power to regulate the Indian’s privilege of hunting and fishing, cannot confer upon the Dominion power of dispose, by issuing permits or otherwise, of that beneficial interest in the timber which has now passed to Ontario. Seeing that the benefit of the surrender accrues to her, Ontario must, of course, relieve the Crown, and the Dominion, of all obligations involving the payment of money which were undertaken by Her Majesty, and which are said to have been in part fulfilled by the Dominion Government. There may be other questions behind, with respect to the right to determine to what extent, and at what periods, the disputed territory, over which the Indians still exercise their avocations of hunting and fishing, is to be taken up for settlement or other purposes, but none of these questions are raised for decision in the present suit.

Their Lordships will therefore humbly advise Her Majesty that the judgment of the Supreme Court of Canada ought to be affirmed, and the appeal dismissed. It appears to them that there ought to be no costs of the appeal.