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Indigenous Sovereignty: St. Catharine’s Milling and Lumber Company v. The Queen (1888)

"It was suggested, in the course of the argument for the Dominion [i.e. the government of Canada], 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. 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."

St. Catherines Milling and Lumber Company v. The Queen (Ontario), [1888] UKPC 70 (12 December 1888)

"[I]n the leading court decision from the nineteenth century of St. Catharine's Milling v. The Queen, the Judicial Committee of the Privy Council placed serious limitations on the nature of Aboriginal title and entrenched into law the view that Crown sovereignty held a superior and overriding position. This was a case about whether the federal government had the right to issue lumber permits in surrendered territory. The Province of Ontario argued that it controlled land surrendered to the Crown by Indians through Treaty. The court held, in the absence of any Aboriginal participation, that Aboriginal title to their lands was granted to the Indians by the Royal Proclamation of 1763, and existed only at the will of the Crown. Aboriginal title the courts held was merely a 'personal and usufructuary right' — meaning that it was only a right to use — and was not equivalent to legal title. Because the case was primarily about timber permits, the only parties appearing in the case were those for the federal and provincial governments and the milling company. Evidence from Aboriginal people was not present. This very narrow legal view remained the law for over eighty years" (200).

Truth and Reconciliation Commission of Canada. The Final Report of the Truth and Reconciliation Commission of Canada. Canada's Residential Schools: The Legacy, vol. 5, McGill-Queen's UP, 2015.

"[T]his particular decision involved the most important early Canadian court interpretation of the Royal Proclamation of 1763 and it became a crucial precedent" (21).

Kulchyski, Peter, editor. Unjust Relations: Aboriginal Rights in Canadian Courts. Oxford UP, 1994.