St. Catherine’s Milling Co. v. The Queen

Judicial Committee of the Privy Council – [1888] 14 A.C. 46


Ontario Aboriginal titleJurisdiction over Indians
Summary

This decision from Canada’s highest court had monumental impacts on the relation between Canada and Aboriginal peoples. It governed Canada’s policy over Indian title for almost a century, until Calder, in 1973.

The Council recognized that the Royal Proclamation of 1763 gave the Indians only a right of occupancy, which encroached on the Province’s title. Once this right is ceded to the Dominion, full proprietary interest reverts to the province.

Issue

When a parcel of land ceased to be part of an Indian reserve, which jurisdiction owns the title: the provincial or the federal government?

Decision

The province owns the title (unanimous decision).

Parties

Between: St. Catherine’s Milling and Lumber Company

And: Ontario

Intervener: Canada

Facts

In 1870, the Dominion acquired from the Hudson Bay Company Rupert’s Land and the North-West Territory, both situated to the north and to the west of Lake Superior. The Métis living on these territories did not want their territories to become part of Ontario and rebelled against the Dominion (Hall, 1991: 270-271). In 1871, a new province, Manitoba was created out of the biggest part of Rupert’s lands in order to appease the Métis rebellion. The rest were annexed to the Ontario’s territory (Hall, 1991: 271).

In 1873, the Salteaux tribe of Ojibway Nation concluded a treaty to surrender to the Crown, represented by the Dominion of Canada, 50 000 square miles of their traditional lands. In exchange, the federal had to set aside part of these lands for the benefit of the Salteaux. These lands overlapped both present-day Ontario and Manitoba. This agreement is known as Treaty No. 3 (AINC, 2009). At that time, the official boundaries of these two provinces were not fixed, and conflict arose as to which order held the title to these treaty lands (Hall, 1991: 271).

In 1883, the Dominion’s Crown Timber Agent issued a permit to the St. Catherine’s Milling and Lumber Company giving it the right to cut and carry timber from Salteaux’ lands previously ceded to the Crown. St. Catherine’s Milling Co. conducted its operation without asking permission to the Province of Ontario, which had jurisdiction over beneficial interest of the Crown lands inside its boundaries according to the Constitution Act, 1867. Ontario sued St. Catherine’s Milling Co. for damages for cutting timber on the premise.

Arguments

St. Catherine’s Milling Co. and Canada: Jurisdiction over the disputed lands belongs to the Dominion. Section 91 (24) of the Constitution Act, 1867 gave legislative authority over “Indians and lands reserved for the Indians” to the federal order. Provinces can only claim lands that were public property in 1867, the year in which the Constitution Act, 1867 came into effect. Since the Salteaux tribe had complete proprietary interest over their traditional lands in 1867, and ceded it only in 1873 to the Dominion, their lands do not fall under the competence of the province. Ontario had no claim.

Ontario: The lands always belonged to the Crown, even before the conclusion of the Treaty No 3. The Salteaux tribe did not have a proprietary right over the disputed lands, but merely a right of occupancy given by the Royal Proclamation of 1763. The interest possessed by the Indians is similar to a licence that can be terminated at the goodwill of the Crown. Treaty No.3 gave power to the Dominion to legislate over the ceded lands now reserved for the Indians; it did not transferred ownership from the Crown to the Dominion.

Decision of the lower courts

Chancery Division of the High Court of Ontario (1885) : St. Catherine’s Milling Co. had no right to cut the timber on the land inside Ontario’s boundaries. An injunction restraining the company from cutting and removing anymore timber is issued.

 Court of Appeal for Ontario (1886) : The appeal is unanimously dismissed.

Supreme Court of Canada (1887): The appeal is dismissed.

Reasons for Judgement

Jury

Lord Watson, Earl of Selborne, Lord Hobhouse, Sir Barnes Peacock, Sir Montague E. Smith, Sir Richard Couch

Reason

The Royal Proclamation of 1763 gave the Indians only a right of occupancy over their traditional lands, dependent on the goodwill of the Crown, and not a full proprietary interest like St. Catherine’s Milling Co. and the Dominion of Canada claimed.

An Indian title is, however, an exception to the principle of provinces’ ownership over Crown lands inside their boundaries, because it is the Dominion instead of the provinces that has jurisdiction over “Indians and lands reserved for the Indians”.

Since the Salteaux tribe decided to surrender its Indian title over the disputed lands in 1873, the Dominion had no longer jurisdiction over the 32 000 square miles of lands inside Ontario’s boundaries.

The province reclaimed full propriety of the Crown lands at that moment; therefore Dominion’s Crown Timber Agent’s permit issued to St. Catherine’s Milling Co. is void.

Impact

This decision from Canada’s highest court at the time, appeals to the Judicial Committee of the Privy Council having only been abolished in 1949, had monumental impacts on the relation between Canada and Aboriginal peoples.

It forced the federal government to recognize Ontario’s official boundaries in 1889 when the United Kingdom passed the Canada (Ontario Boundary) Act in which it delimited the province’s boundaries still in place today (Canada (Ontario Boundary) Act, 1889). The Act enacted an Imperial Order-in-Council made in 1884 after the Judicial Committee of the Privy Council ruled in favour of a petition made by the Premier of Ontario, Oliver Mowat to have its province’s western boundary followed the meridian of the north-western angle of the Lake of Woods instead of the confluence of the Ohio and Mississippi Rivers, as claim by Manitoba and the Dominion (Ontario-Manitoba Boundary Case, 1884).

In 1894, Ontario and the federal government entered into a formal agreement over the issue of Treaty No. 3 reserves. The sixth clause of that agreement said that any future Indian treaties must be approved and negotiated with the province of Ontario. It applied mostly to the territory of northern Ontario, newly added and not encompassed in any treaty (Morrisson, 1986). The province viewed the 1894 agreement as giving it authority in deciding the location of future Indian reserves within its boundaries. According to the Dominion, with this new power, came new responsibilities, such as paying increase annuities to Treaty Indians living on its soil. Another judicial battle ensued and was settled by the Judicial Committee of the Privy Council in Ontario’s favour (IbidAttorney-General for the Dominion of Canada. v. Attorney-General for Ontario, 1897).

St. Catherine’s Milling marked the first study of the Royal Proclamation of 1763, an historic and the Constitution Act, 1867 by the country’s highest court to examine the nature of the Aboriginal title (Cottam, 1991: 248). In addition, its significance for Aboriginals, in particular, is considerable considering that it restricted the essence of their title to their customary lands (Kulchyski, 1994: 22). Since the Judicial Committee of the Privy Council ruled that they only have a right of occupancy over their traditional lands instead of a full property title, it limited their options to have their fishing, hunting and trapping rights recognized (Slattery, 2000).

The Salteaux Indians did not take part in the legal proceedings: they were still viewed as inferior to their European counterparts, and therefore were not allowed to voice their opinion in the matter (Hall, 1991: 281). It is only since Calder, in 1973, that the Canadian courts and government started to move beyond the notion of Aboriginal title set in St. Catherine’s Milling and expend it to include rights to the land and resources for the occupants (Cottam, 1991: 250).

Related Cases

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Guerin v. The Queen, [1984] 2 S.C.R. 335

St. Ann’s Island Shooting And Fishing Club v. The King, [1950] S.C.R. 211

Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 S.C.R. 79


Sources

Canada (Ontario Boundary) Act, 52 & 53 Victoria, c. 28 (U.K.)

 Attorney-General for the Dominion of Canada. v. Attorney-General for Ontario, [1897] A.C. 199

Ontario-Manitoba Boundary Case, Order-in-Council 1884-910 (U.K.)

Cottam S. Barry. 1991. Indian Title as “Celestial Institution”: David Mills and the St. Catherine’s Milling Case, in Abel Kerry and Jean Friesen (eds), Aboriginal Resource Use in Canada: 249-265. Winnipeg: University of Manitoba Press.

Hall Anthony J. 1991. The St. Catherine’s Milling and Lumber Compagny versus the Queen: Indian Land Rights as a Factor in Federal-Provincial Relations in Nineteenth-Century-Canada, in Abel Kerry and Jean Friesen (eds), Aboriginal Resource Use in Canada: 267-283. Winnipeg: University of Manitoba Press.

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.

Kulchyski Peter. 1994. Unjust Relations: Aboriginal Rights in Canadian Courts. Toronto : Oxford University Press.

Morrison James. 1986. Treaty Research Report: Treaty No. 9. Online. http://www.ainc-inac.gc.ca/al/hts/tgu/pubs/T9/tre9-eng.pdf. Retrieved on August 10th 2010.

Slattery Brian. 2000. “Making Sense of Aboriginal and Treaty Rights”, in Canadian Bar Review 79: 196-224.

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