St. Catharines Milling and Lumber Co. v R, (1887) Case 13 SCR 577

The 1887 St. Catharines Milling and Lumber Co. was the leading case on Aboriginal title in Canada for over 80 years until overturned in large part by Calder v British Columbia (AG)[1973] SCR 313. At issue was who owned title over land that the lumber company wished to purchase for the purpose of cutting timber. The federal government, based on s. 91 (24) of the Constitution Act, 1867, stated it was responsible for "Indians, and Lands reserved for the Indians." The government of Canada argued that it had purchased the land from Aboriginal communities who had hereditary title, and therefore it could grant the lumber company a permit to cut timber. That permit was challenged by the Province of Ontario, which argued that the land in question was within the province's jurisdiction. Oliver Mowat, premier of Ontario from 1872 to 1896, argued "there is no Indian title in law or in equity. The claim of the Indians is simply moral and no more." Property could only be defined within the common law legal system, and as Aboriginals had no such legal system they could not own land or property, as was understood, and therefore had no legal authority to sell it to the federal government. Aboriginal chiefs at the time disagreed, claiming, "We think where we are is our property."

The trial judge found for the province and the federal government appealed. The case made its way past the Supreme Court of Canada to the Judicial Committee of the Privy Council (the British court of final appeal at the time), which declared that the British Crown had title and sovereignty over the land. Aboriginal title, according to the ruling based on a reading of the Royal Proclamation of 1763, was limited to the mere right to occupy and use the land (i.e.usufructuary); it did not include the right to title or ownership. Lord Watson wrote:

...the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be 'parts of Our dominions and territories;' and it is declared to be the will and pleasure of the sovereign that, 'for the present,' they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion. [emphasis added]

While the Judicial Committee of the Privy Council declined to define precisely aboriginal interest in the land, the decision meant that aboriginal people, given that they had "no fixed abode," had no claim beyond the "bounty and benevolence of the Crown."

RESOURCES AND REFERENCES LIST St. Catharines Milling and Lumber Co. (scc-csc.lexum.com/)

Questions:

1. What type of different cultural understandings do you think would have had influenced their Lordships' decision in this case.
2. What type of effect do you think this decision would have had on aboriginal peoples seeking redress in the courts in the years that followed?
3. Research the recent Land Back Movement and explain how Land Back activists conceptualize aboriginal or indigenous sovereignty. What might this look like if accommodated under the Canadian constitution? Is that even possible, in your opinion?

Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54

The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia they call Qat'muk. The Ktunaxa believe Qat'muk is home to the Grizzly Bear Spirit, and it is of spiritual significance to them. In 2001, Glacier Resorts sought approval from the B.C. government to build a year-round ski resort in Qat'muk. The project was to be built on the site of an abandoned sawmill, in an area revered by backcountry skiers and snowboarders for its deep snow, wilderness, beauty, and grizzly bears.

The B.C. government approved of the resort, and the Ktunaxa Nation challenged the approval in court, saying the province failed to properly consider the sacred significance of the area. The Ktunaxa believe the project would drive the Grizzly Bear Spirit from Qat'muk and permanently destroy their religious beliefs and spiritual practices. The British Columbia Supreme Court and the B.C. Court of Appeal dismissed the Ktunaxa claim. After further efforts to continue consultation failed, the B.C. government declared that reasonable consultation had occurred and approved the project. The Ktunaxa appealed to the Supreme Court on the grounds that the project would violate their constitutional rights to freedom of religion, and that the government's decision breached the Crown's duty of consultation and accommodation.

The Supreme Court dismissed the Ktunaxa's appeal. The majority of the Court determined that religious protections guaranteed under the Charter of Rights and Freedoms include freedom to hold such beliefs and manifest those beliefs, but do not extend to the protection of sacred sites. Although the nine justices were unanimous in the decision to reject the Ktunaxa appeal on the grounds of public interest, two justices, Michael Moldaver and Suzanne Ct, took a broader view of the Charter's religious protections. In their dissent, the two agreed that the religious beliefs of the Ktunaxa were violated, as the building of the resort might substantially interfere with their ability to act in accordance with their religious practices. However, the two justices determined that the government had properly weighed the religious protections with the public interest in developing the property, and said that the government's decision to approve the project was "reasonable, and amounted to a proportional balancing."

With regard to the breach of the Crown's duty of consultation under s. 35 of the Constitution Act, 1982, the Court determined that there was no breach. It determined that s. 35 guarantees a process, but not a particular result.

Questions:

1. Two justices in this case dissented with the majority. What does this mean?
2. Although the dissenting justices disagreed on whether rights were violated, they agreed with the verdict. Explain the key differences between the dissenting justices and the majority.
3. This case reaffirmed the Supreme Court's position that the Crown under s. 35 of the Constitution Act, 1982 has an obligation to consult with Indigenous peoples, but they do not have veto power over development projects. What previous case included here came to the same conclusion?
4. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the Canadian government in 2021. Explain how this decision may not comply with the rights indicated in the UNDRIP.