For the next two weeks, ReconciliAction YEG will be summarizing important Aboriginal law cases. Today’s post will cover what was the leading case on Indigenous land rights for 85 years: St. Catharine’s Milling and Lumber Company v The Queen. 
St. Catharine’s Milling was a jurisdictional dispute between Ontario and Canada that was appealed all the way up to the Judicial Committee of the Privy Council (the final judicial authority in Canada at the time). While one of the primary issues in the case concerned the nature of Indigenous land rights, there was no Indigenous representation in the arguments made before the Privy Council. All arguments about the nature of Indigenous land rights were made by colonial government officials, and so Indigenous peoples were not given a voice in deciding how their land rights would be described for nearly a century.
The dispute arose because Ontario served a writ on St. Catharine’s Milling and Lumber Company (the spelling of which is a little inconsistent) after the company acted on a permit by the federal government to harvest trees from a tract of land near Wabigoon Lake (pictured above) in Treaty 3 territory. The Salteaux tribe of the Ojibway people ceded the land to the federal government in Treaty 3, and the federal government in turn granted a logging permit to St. Catharines. Ontario successfully argued that, pursuant to the British North America Act,  the federal government could not grant this logging permit because it was an infringement on provincial jurisdiction.
Edward Blake, counsel for Ontario, argued that there were three possible characterizations of Indigenous interests in land: first, that Indigenous peoples had an absolute interest in their land; second, a “middle view” that Indigenous people had a right of “occupancy and enjoyment, of a special kind, perhaps limited to the purposes of hunting and fishing, tribal in its character, capable, not of transfer, but only of extinguishment or of surrender to the owner of the fee or of the allodial title…” (the “allodial title” in this case meaning the Crown); and third, a “lowest view of Indian title,” which denies Indigenous peoples an absolute legal right to land, but permits them to use and enjoy the land based on “grace and policy.” 
The third, lowest view was the view that was adopted in St. Catharine’s Milling, and consequently the view that governed Canadian law for almost a century. Lord Watson, delivering the judgment for the Privy Council, considered the Royal Proclamation of 1763,  and went so far as to say the following about lands that were not ceded or sold to the Crown in a treaty:
It was suggested, in the course of the argument for the Dominion, that inasmuch as the [Royal Proclamation of 1763] 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 [Royal Proclamation of 1763], which show that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the sovereign. 
As such, for most of the 20th Century, Indigenous title meant something less than a “right.” It meant that the Crown merely permitted Indigenous people usufructuary enjoyment and occupation of their lands. Because of St. Catharine’s Milling, there would be no common law recognition of the modern concept of “Aboriginal title” until the Supreme Court of Canada would decide Calder v British Columbia (Attorney-General)  in 1973. The Truth & Reconciliation Commission has said that until Calder and subsequent Aboriginal title cases were decided, St. Catharine’s Milling contributed to a “chilling effect on the willingness of Aboriginal people to turn to the civil system to address their disputes with government or to assert the rights they felt they continued to have.” 
In conclusion, St. Catharine’s Milling was a significant obstacle to Indigenous peoples’ land rights, and their participation in our legal system for the better part of a century.
Until next time,
Team ReconciliAction YEG
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  UKPC 70,  14 AC 46 (12 December 1888) [St. Catharine’s Milling].
 The British North America Act, 1867, SS 1867, c 3.
 Blake, Edward. The St. Catharine's Milling and Lumber Company V. the Queen: Argument of Mr. Blake, of Counsel for Ontario. Toronto: Press of the Budget, 1888. Arguments of Counsel for the Respondent.
 Royal Proclamation, 1763, RSC, 1985, App. II, No. 1.
 Supra note 1 at 5.
  SCR 313, 34 DLR (3d) 145 [Calder].
 Truth and Reconciliation Commission of Canada. Final report of the Truth and Reconciliation Commission of Canada: Volume 5. Montreal: McGill-Queen’s University Press, 2015.
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