The St. Catherine’s Milling and Lumber Case and Aboriginal Title
December 6, 2024
A 19th-century settler gave the village of Hazelton in northern B.C.'s Skeena region its name because of the abundance of hazelnuts in the area. We now know that the beaked hazelnut had been transplanted and cultivated for at least 7,000 years by Gitxsan, Tsimshian, and Nisga'a peoples, which researchers say challenges the notion that pre-colonial Indigenous people in northwestern B.C. were only hunter-gatherers.[1] This is an important shift in the narrative that suggested that indigenous populations did not use the land they occupied in a nomatic way that would support the western notion of their land ownership (read on to understand this more…).
We now know that indigenous populations in the prairies were not only buffalo hunters but produced and sold food, medicine, construction material, and ceremonial supplies gathered from nearly 180 plant species.[2] The profound knowledge and connection to the land resulted in nutritional opportunism, trade and robust communities. This is true across many other indigenous groups who each had their own way of making use of the land and its diversity.
Cultivation and other agricultural activities are considered as types of activities necessary to demonstrates ownership under generally accepted legal definitions including those established under British common law. Proof of agricultural undertakings was considered proof of the requisite sophistication needed to support Aboriginal Title. At the heart of the matter is the fact that in Canada, our colonial governments made little effort to understand the culture and society of the indigenous people and instead clung to racist stereotypes used to justify the appropriation of land for use by settlers and for the development of the railways. It was generally held that the indigenous people found in Canada were primitive hunter-gatherers who on held claim to a usufructuary right to the land they occupied. This usufructuary right is the right to continue to use said land for traditional purposes but falls short of actual ownership of the land for any and all purposes.
In the very early days of the fledgling nation of Canada the courts were sometimes asked to resolve disputes between the provinces and the federal government with respect to who had jurisdiction over certain things including with respect to land. In one such instance arising in 1885 a dispute arose with respect to the issuance of permits to harvest lumber on what was land covered under Treaty 3 that was the traditional land of the Salteaux. This is the case of St. Catherine’s Milling and Lumber Company v. The Queen (1885).[3],[4]
The court was asked to decide on the status of the ownership of the land covered by the timber permit prior to the negotiation of Treaty 3. This would help determine if that land was governed by the Canadian government or inured to the Province of Ontario under the terms of the British North American Act 1867. Underlying this dispute regarding whose jurisdiction it was to issue permits, was the nature of Aboriginal Title.
Importantly, the courts considered British common law precedents to determine the nature of the Aboriginal Title and how it came to be extinguished. Generally speaking, British law recognized the continuation of law and legal customs with respect to the concept of land ownership. The British courts recognized the right to ownership where there was evidence of occupancy, possession and use over a long period of time. Notwithstanding this view it was tempered by the then contemporary racist views and a general unawareness of the history and customs of indigenous people in what became Canada.
In one case, Re Southern Rhodesia (1919), the British Privy Council noted:
The estimation of rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society.
The Council believed that while the inhabitants of some conquered lands had developed to a point where it was incumbent on the British authorities to recognize local laws, customs and concepts, including the rights of property ownership, in other cases the primitive nature of the societies was deemed to mean that they essentially had no inherent rights.
Thus, in the Canadian St. Catherine’s case the trial judge determined that at best the Saulteaux merely had a usufructuary claim to the land (i.e. use of but not ownership of the land). The court however was not presented any evidence whatsoever about Ojibwe law, customs or societal norms. Instead, the court made assumptions about the Saulteaux and concluded they were a primitive people incapable of having the level of sophistication needed for Title to be recognized and respected by the courts. The St. Catherine’s case established the notion that in Canada Aboriginal Title originated out of the Royal Proclamation of 1763 and gave no credence to the existence of an Ojibwe system of law or evidence of patterns of usage and possession that would establish proprietary ownership of the land.
The St. Catherine’s case can be said to be a product of the times. Social Darwinism was an accepted theory at that time and it suggested there was a hierarchy of development that reflected the relative ranking of abilities and sophistication between various races of people. It also was a continuation of the notions established under the Doctrine of Discovery which suggested that where the people who were occupying the found land were not sufficiently developed in their societies, and in particular did not hold to Christian beliefs and values), then the discovering nation could treat the land as vacant territory.
What the St. Catherine’s case did do specifically was establish that the indigenous people occupying the land we now call Canada lacked the degree of sophistication and development to establish title beyond an entitlement to certain traditional uses. This notion allowed the Crown to assume proprietary interest in the land as described by the Royal Proclamation and therefore restricted the right of indigenous people to ownership of the land and reduced it to a beneficial interest in the use of the land.
However, the assumptions made in St. Catherine’s were false, were erroneous and prejudicial. Nevertheless, the legal precedent established held for more than sixty years, in part because indigenous people had no access to legal remedies to challenge the law. It also was not challenged because the underlying assumptions reflected what was generally known about indigenous people in North America – which was very little.
As our Canadian society has become more aware of indigenous people and their history, culture and customs we are rejecting previous racist views and gaining an understanding of how vital and sophisticated indigenous societies were.
The St. Catherine’s case provides a number of important lessons. Certainly, the pervasive racism reflected in the original St Catherine’s trial (and carried forward through the appeals process right up to the Privy Council), clearly demonstrates the fallibility of the legal system (as mentioned above this falliability was not “checked” or challenged because the Indigenous Peoples had no legal recourse rights). In general there is a tendency to rely on the courts as establishing some level of higher truth. In reality the people who sit in judgement can be just as susceptible to bad judgement as the rest of us. There remains a lot to learn about the Indigenous people in Canada and the more we are able to understand our indigenous people the less likely it is that we will maintain racist and prejudicial views affecting government decisions and legal judgements.
[1] https://www.cbc.ca/news/canada/british-columbia/bc-hazelnut-research-1.7392860
[2] https://www.producer.com/crops/canadas-first-nations-people-were-countrys-first-farmers/
[3] See McNeil, Kent, Flawed Precedent: The St. Catherine’s Case and Aboriginal Title, UBC Press, Vancouver, 2019.
[4] Supreme Court Decision CanLII – St. Catharines Milling and Lumber Co. v. R., 1887 CanLII 3 (SCC), 13 SCR 577