This talk on judicial precedent and Aboriginal title combines legal history and current law. The legal history is important because it informs the current law. It also reveals the racism in Canadian law that retarded the development of the concept of Aboriginal title until the 1970s.
My discussion of the early case law focuses on St. Catherine’s Milling and Lumber Co. v. The Queen, decided by the Privy Council in 1888. It was the leading judicial precedent on the source and content of Aboriginal title right up to the Supreme Court of Canada’s 1973 decision in Calder v. Attorney General of British Columbia. The question in St. Catherine’s was this: Did the Crown in right of Ontario or the Crown in right of Canada benefit from the surrender by the Saulteaux people of the Anishinaabe Nation of their Aboriginal title by Treaty 3 in 1873?
Treaty 3 covers lands around the Lake of the Woods in north-western Ontario. The treaty extends over 55,000 square miles, an area slightly larger than New Brunswick and Nova Scotia combined. The Privy Council decided that the surrender of Aboriginal title benefitted Ontario because the province had the underlying title to the Saulteaux’s lands due to section 109 of the Constitution Act, 1867, which provides that the original four provinces that joined together in Confederation retained most of their public lands.
That ruling has never been questioned by the courts, and I am not questioning it now. But in reaching this conclusion, the Privy Council also offered an opinion on Aboriginal title, describing it as “a personal and usufructuary right, dependent upon the good will of the sovereign.” As for the Crown’s underlying, pre-treaty title, which their Lordships thought the Crown got as a result of the cession of French Canada to Britain by the 1763 Treaty of Paris, it was regarded as a substantial and paramount interest upon which the Aboriginal title was a mere burden.
Soon after Britain acquired New France, George III issued the Royal Proclamation of 1763 to protect Indigenous land rights in North America from unscrupulous settlers. Lord Watson, speaking for the Privy Council, said that the Saulteaux’s possession of their lands, “such as it was,” could only be attributed to the Proclamation. His description of Aboriginal title as a “personal and usufructuary right” was based entirely on his interpretation of the Proclamation. It was not based on the common law or Indigenous law.
This description governed the legal understanding of Aboriginal title from 1888 until 1973, when it was finally questioned by the Supreme Court in Calder. It was subsequently rejected by the Court in Delgamuukw v. British Columbia in 1997. Recently, in Tsilhqot’in Nation v. British Columbia, the Court affirmed the holding in Delgamuukw that Aboriginal title amounts to the entire beneficial interest in the land, so the Crown’s underlying title has no beneficial content whatsoever. My understanding is that the Crown’s underlying title to unceded Aboriginal title land is equivalent to the Crown’s right to escheat underlying a fee simple estate.