''St Catharines Milling and Lumber Co v R'' was the leading case on

Aboriginal title in Canada In Canada, aboriginal title is considered a ''sui generis'' interest in land. Aboriginal title has been described this way in order to distinguish it from other proprietary interests, but also due to the fact its characteristics cannot be explaine ...

for more than 80 years. The

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...

, affirming a ruling by the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

, held that Aboriginal title over land was allowed only at the Crown's pleasure, and could be taken away at any time. This case, involving Ojibway Treaty No. 3 which had never been previously litigated before any court, is a leading decision in

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...

on the differences between the division of legislative powers and property rights under the

Constitution of Canada The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents a ...

Background

At issue were treaty lands thought to be within

Rupert's Land Rupert's Land (french: Terre de Rupert), or Prince Rupert's Land (french: Terre du Prince Rupert, link=no), was a territory in British North America which comprised the Hudson Bay drainage basin; this was further extended from Rupert's Land t ...

when Canada entered into

Treaty 3 ''Treaty 3'' was an agreement entered into on October 3, 1873, by Chief Mikiseesis (Little Eagle) on behalf of the Ojibwe First Nations and Queen Victoria. The treaty involved a vast tract of Ojibwe territory, including large parts of what is ...

in 1873. Following the ''Ontario-Manitoba Boundary Case'', the ''Canada (Ontario Boundary) Act 1889'' placed about two-thirds of the treaty area in Ontario. Canada believed that it was entitled under the Treaty, and its legislative authority under section 91 (24) of the '' Constitution Act, 1867'' for "Indians and Lands reserved for the Indians", to administer Treaty lands. The lumber company was granted a federal permit to a timber berth on Lake Wabigoon, and that permit was challenged by the Province.

The courts below

In 1885, Chancellor Boyd of the Chancery Division held that the phrase "Lands reserved for the Indians" referred only to “Indian Reserves”, and "such words do not cover lands which have never been the subject of treaty or surrender, and as to which the Legislature or executive Government have never specifically appropriated or 'reserved' for the Indian population." On appeal, the Court of Appeal affirmed this, as well as stating that the lands transferred by the 1889 Act, other than that covered by Indian reserves, vested in the Crown in right of Ontario. This was affirmed on appeal to the Supreme Court of Canada.

At the Privy Council

The SCC ruling was affirmed by the Board. Lord Watson identified the source of Aboriginal title as the

Royal Proclamation of 1763 The Royal Proclamation of 1763 was issued by King George III on 7 October 1763. It followed the Treaty of Paris (1763), which formally ended the Seven Years' War and transferred French territory in North America to Great Britain. The Procla ...

, and he noted:

Impact

Other issues arose from this decision. The Privy Council said, for example, that Ontario must relieve Canada of its obligations under the treaty since Ontario had the benefit of it, but subsequent litigation by Canada failed on that point too. In ''Ontario Mining Co. v. Seybold'', the Privy Council extended the rule to deny the Indians any beneficial interest in the reserves that had been set apart for them under the Treaty. It took a series of federal/provincial agreements, culminating in the ''Canada/Ontario Indian Reserve Lands Agreement'', to provide an interim solution to the problems created these decisions. A further resolution was reached in 1986, with the passage of the ''Indian Lands Agreement (1986) Act''., with corresponding provincial approval in the (repealed in error by the ''Legislation Act, 2006'', s. 98(3), as enacted by the , and subsequently reenacted by the ) Even though some of Lord Watson's observations were later varied by the Supreme Court of Canada in ''

Guerin v. The Queen ''Guerin v The Queen'' 9842 S.C.R. 335 was a landmark Supreme Court of Canada decision on Aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established Aboriginal title ...

'', this case is the starting point for an understanding of Aboriginal law in Canada.

References

External links