Judicial Committee of the Privy Council –  A.C. 73
This decision confirms the earlier St. Catherine’s Milling ruling. Once the title is surrendered the province becomes the sole owner of the land. The Dominion had no right to grant licenses.
After the surrender of Indian lands to the Crown, can the province, in which they are situated, dispose of them without the consent of the federal government?
As the sole owner of the lands, only the province can deliver the mining permits (unanimous decision).
Between: Ontario Mining Company Ltd. and Canada
And: Seybold et al. and Ontario
In 1873, the Treaty No. 3 between the Salteaux Tribe of the Ojibway Indians and the Dominion of Canada is concluded at the North-West Angle of the Lake of the Woods (north western Ontario). It authenticated the surrender of 30,000 square miles of traditional lands by the Salteaux Tribe of the Ojibway Indians to the Crown according to the terms of the Royal Proclamation of 1763. In exchange, the federal government had the obligation to set aside part of their lands for the Salteaux’ benefit (INAC, 2009).
In 1879, the Dominion of Canada created a reserve for the Rat Portage band, now the Wauzhushk Onigum Nation, of the Salteaux tribe by adding Sultana Island to already established Reserve 38 B. However, the decision was not confirmed by Order in Council. Since the lands in question fell west of the Province of Ontario, the Dominion stated that they were under its control.
In 1887, a significant amount of gold was found in the subsurface of the Sultana Island. In order to benefit from these mineral resources, the Rat Portage band surrendered these to the Crown and the proceeds from the mining operations were to be kept in trust by the Dominion. In 1889 and 1890, letters patent were issued for three tracts of land situated on Sultana Island by the Dominion to A. C. McMicken, George Heenan, and H. G. McMicken of Ontario Mining Company Ltd.
In 1894, Seybold and al., a rival mining company, addressed a claim to the Province of Ontario to receive letters patent for mining operations on the same Sultana Island. It was their understanding that the province was endowed with the title to these lands, following the St. Catherine’s Milling decision. They submitted a petition to the Commissioner of Crown Lands, to the Minister of Justice at Ottawa, and the Minister of the Interior requesting ratification of the title on their behalf.
In 1898, the Commissioner’s made its decision. He gave a two-thirds interest to Seybold and al. over the Sultana Island and awarded a one-third interest to the Ontario Mining Company under the condition that it waived its full interest in the concerned lands. It did not consent to the condition and took action in order to repeal the Commissioner’s ruling to set aside the letters patent. In 1899, Seybold and al. received the letter patents for their share of the Sultana Island lands.
Ontario Mining Company Ltd. and Canada: All Indian lands were placed under the authority of the Dominion by the British Parliament, according to section 91(24) of the Constitution Act, 1867, to make sure that Indians’ administration was uniform throughout the Dominion. By allowing provinces to interfere with Indian affairs, it would impede on the Dominion’s exclusive legislative power. Furthermore, the St. Catherine’s Milling Co. decision did not apply to this case, because the concerned lands were of a different nature.
Seybold et al. and Ontario: The St. Catherine’s Milling decision applies in this case. A distinction should be made between legislative authority and proprietary interest, since the Dominion holds the legislative authority, but Ontario holds the proprietary interest.
Ontario Chancery (1899): The Ontario Mining Company Ltd. letters patent were declared invalid.
Ontario Divisional Court (1900): The appeal was dismissed.
Supreme Court of Canada (1901): The decision of the Chancellor is affirmed on the basis of the decision of the Privy Council in St. Catherine Milling. Gwynne dissented on the basis that the sale of reserve lands by the Crown must be for the benefit of the Indians and this fall under the Dominion’s legislative power.
Earl of Halsbury, Lord Macnaghton, Lord Davey, Lord Robertson, Lord Lindley
The Lordships of the Privy Council followed St. Catherine’s Milling Co.
The selection of a future reserve must be jointly by the two orders of governments. In this case, both governments came to an agreement in 1894, when a statutory agreement was sign to determine the limits of the Province of Ontario, and included part of the lands surrendered in the treaty in Ontario’s territory.
The federal government still went ahead and decided to set aside certain lands for the benefit of Indians without the approval of Ontario; this action was approved after the fact by the province. Since Ontario was the owner of the newly Crown lands, it was the only one who could legally delivered letters patent to a company wishing to conduct mining operations their soil. The letters patent delivered by the Dominion to the Ontario Mining Co. were therefore void.
Since the surrendered lands were declared to be the exclusive property of the Province of Ontario, the Dominion had no authority to decide the reserve’s location and could not keep its promise to the Salteaux tribe (Coyle, 2005: 90). The decision also impacted the royalty payments of the Wauzhushk Onigum Nation. It never received any of the profit from the gold mine since it was deemed that it did not held sufficient interest in the reserve land to support a claim of mineral rights (Id.: 93).
In 1984, the Wauzhushk Onigum Nation expressed its interest to participate in the specific land claim to receive compensation for not receiving royalties from the Sultana Island gold mine and for breach of fiduciary duty by the Crown in the matter. In 1994, the federal government accepted to negotiate with the First Nation. Feeling that the negotiation process was not moving fast enough, the Wauzhushk Onigum Nation began litigation.
In 2009, after the First Nation spent more than twenty years in the specific claim process, the case was settled out of court (AINC, 2010). The Wauzhushk Onigum Nation received $6 million from the province of Ontario and $7.35 million as well as the annexation of the Sultana Island to the reserve. In exchange, mineral and hunting rights would be surrendered and the decontamination of the site would be the First Nation responsibility. The community decided to accept the settlement offer after a referendum was held, to which only 40% of members participated (Torrie, 2009).
Wewaykum Indian Band v. Canada, 2002 SCC 79
Cardinal v. Attorney General of Alberta,  S.C.R. 695
Guerin v. The Queen,  2 S.C.R. 335
Coyle Michael. 2005. Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options for the Future”, Queen’s Law Journal 31: 75-.
Indian and Northern Affairs Canada. 2009. Historic Treaties – Timelines and Maps. Online. http://www.ainc-inac.gc.ca/al/hts/mp-eng.asp. Retrieved on July 29th 2010.
Torrie Jeremy. 2009. Band divided over $7-M land-claim settlement, Winnipeg Free Press July 25th.