The Timber Case

The St. Catharines Milling Co. vs The Queen Case

In 1883, the Federal Government issued a timber lease to a company – St. Catharines Milling and Lumber Company – to remove lumber from land along Wabigoon Lake, in territory covered by Treaty No. 3. The Federal Government believed it had jurisdiction in this territory since the land was covered by Treaty. According to the Federal Government, prior to Treaty No. 3 the Saulteaux Ojibwa had something like full ownership to their traditional lands. The aboriginal title could only be removed by the Federal Crown (Government). Once the land was “surrendered” under Treaty No. 3, the aboriginal title (which was like full ownership of the soil) was transferred from the First Nation to the Federal Crown.

The Province of Ontario fought the Dominion’s (Federal Government) timber lease issued to the St. Catharines Milling Co., arguing that the Federal Government’s jurisdiction over Indians and lands reserved for Indians under the British North America Act of 1867, did not include land outside of Indian reserves. Ontario also argued that Indians never held title to land – the Indians did not have property rights, but only the right to enjoy and use the land. The underlying title to the land had always been with the Provincial Crown and the land in question, according to this argument, was provincial crown land at the time of Confederation. Therefore, the title to the land could not have passed to the Federal Government when Treaty No. 3 was made.

The argument was based on the erroneous belief that aboriginal people could not possess property, since they were nomadic wanderers, unattached to any particular territory.1

At stake was which level of Canadian government could own and control a vast tract of land that made up over half of Ontario at the time. In particular, the dispute would determine which level of government could obtain money from royalties from this huge area of land. Recall that at this time the governments of the day did not rely upon personal income taxes to raise revenues.

The Saulteaux Ojibway of Treaty No. 3 were not involved in the court case even though it was their traditional lands at stake. In fact, evidence surrounding Ojibway use and occupation of their lands and their system of laws was not presented to the court at all.2 Instead, all parties presumed that the Salteaux’s title was somehow given to them through British law. Historian Kent McNeil explains:

Both sides assumed that, prior to Treaty 3, the title of the Crown to lands in the treaty area could be presumed, unless it was shown that the Salteaux had a better title. However instead of leading evidence to prove the Saulteaux’s title as such, counsel for the St. Catharines Company simply established that the Salteaux had been in occupation of the lands at the time the treaty was entered into and then tried to argue they had title as a matter of law, relying on the Royal Proclamation, various statutes, and previously decided cases.3 

Incredibly, not one aboriginal witness was called to give evidence.

In 1885 the case was argued in the High Court of Ontario’s Chancery Division. The Ontario argument was presented by Edward Blake and Premier Oliver Mowat.

You can read a biography of Mr. Blake by following the link below.

Mowat and Blake asserted that the Crown only recognized aboriginal title for political purposes in order to keep peaceful relations with native people. In their opinion, aboriginal people did not possess legal title to the land at all. The Crown – not the Indians – held the title before the Treaty of 1873. Blake premised his argument on the notion that the French eliminated any aboriginal title by way of conquest. Subsequently, the British merely recognized and created a new form of title voluntarily. He argued:

We get to the root of the Indian Title very clearly. We find the old original title extinguished in the time of the French. The French Crown never recognised it, and by conquest extinguished it.4

Therefore, at Confederation in 1867, the lands in question became Ontario lands since the Constitution stated that the Provinces owned and controlled land and natural resources.

The case for the St. Catharines Milling Company (and in actuality for the Federal Government, which eventually paid the costs of the court actions) was argued by Dalton McCarthy.5 He proposed that unsurrendered lands were not public lands and therefore did not belong to Ontario at the time of Confederation. McCarthy’s argument is cited in the newspaper as follows:

I shall have to deal with that argument and a great deal will turn upon the condition of this land and possibly upon the Indians. The territory had never been ceded by the Indians to the Dominion Government until the time of the treaty. We shall allege that ever since the proclamation of 1763 and in all the statutes that have been passed and in all the documentary evidence that is permissible and material, land still in the possession of the Indians and not ceded has been treated as belonging to the Indians; that it has never been considered that lands still in the possession of Indians and not ceded to the Crown are Crown lands; on the contrary, both by practice, by custom and by statute, the title of the Indians has always been recognised, their rights have been bought and their possessory title to these lands as being distinct and quite separate and different from the land belonging to the Crown.6

He also argued that the Crown recognized that the Indian title could not be disturbed and that the Supreme Court had decided that the Royal Proclamation of 1763 “gave a right in the property to the Indians.” McCarthy failed, however, to produce evidence of Ojibway use and occupation of the land either in 1763 or at the time of Treaty No. 3.7 Because McCarthy did not document the prior use and occupation of the land by the Ojibway, the Court could only rely upon the Royal Proclamation as the source of aboriginal title.

Justice Boyd delivered the decision of the High Court in 1885. Boyd assumed that the aboriginal people of Treaty No. 3 did not have legal title to their lands; rather the title to the lands had passed to the British once they had defeated the French. Any claim the Indians may have had to their traditional lands was the result of the “bounty and benevolence” of the Crown. According to historian Kent McNeil, Boyd’s decision was based on his racist assumption, shared by the other lawyers involved in the case, that aboriginal people were too “primitive for their occupation to give rise to possession in law, and hence legal rights.”8

The St. Catharines case was eventually appealed all the way up to the Judicial Committee of the Privy Council in 1888. The JCPC, (located in England), was the highest court of appeal for Canada at the time.

In an article in The Globe from 1888, Dalton McCarthy, representing the St. Catharines Milling Company (and the Federal Government) argued that Indian title was something like full ownership:

Mr. McCarthy said that all the colonies had recognized that a sale by the Indians conveyed the title in the soil. Whenever the Crown desired the Indian land they purchased it. The Crown never interfered with any right of the Indians in any part of the land which they had not surrendered., but when the Indians were ready to sell, the Crown obtained the land from them at a fair price. Substantially the whole country had been obtained from time to time for valuable considerations by grants and Treaties.9

The newspaper article continued by summarizing McCarthy’s argument about the status of the land before and after Treaty No. 3:

He contended that before the British North America Act of 1867 the beneficial interest of the lands in question belonged to the Indians, that the Province of Ontario cannot have any property except by virtue of that Act, and that that Act did not give these lands to the Province. Under the Treaty of 1873 the Dominion had an absolute title to these lands on the theory that the Indians were the beneficial owners and had for valid considerations conveyed it to the Dominion.”10

See a copy of the full newspaper article from The Globe in 1888 about Mr. McCarthy’s argument.

See the transcribed version.

In another newspaper article from The Globe covering the case, Mr. McCarthy argued that the Indians had the power to cut the timber before the Treaty, and therefore that power transferred to the Federal Government when the Treaty was made. He said:

The Provinces have never been given any jurisdiction over the Indians at all, and prior to the treaty undoubtedly the Indians had the power of cutting this timber; and we submit that it was within the power of the Dominion Government to make a treaty; that the Dominion Government became the assignees, so that the right to cut timber was transferred to the Dominion Government… Up to 1855 the Indians and Indian land were entirely under the Dominion Government… We submit that at the passing of the British North America Act that the land in question was land occupied by the Indians, which had never been ceded to the Crown. It is for the province to show that they have got this right given to them in this Indian territory.11

See a copy of the entire article featuring Mr. McCarthy’s argument before the Privy Council.

See the transcribed version.

The case was so important to Ontario that Premier Oliver Mowat himself travelled to England to take part in the proceedings. An article in The Globe and Mail dated July 31, 1888, covered the arguments before the JCPC at length.

You can see a copy of the newspaper coverage by visiting the link below.

See the transcribed version.

Mr. Edward Blake, arguing on behalf of Ontario, again asserted that the Indian title “had its foundation in grace and policy in the political department of the Government.” Although he added that it would be almost impossible for the Government to withdraw their “grace” and reverse their policy.

Blake stressed that once a Treaty was made, the Province – not the Federal Government – obtained the right to raise revenues from the sale of timber and other resources. If such was not the case, he argued, the Provinces would not be able to carry out the functions they were responsible for under the Constitution. In his argument before the court he stated:

Again, the scheme of the Act is to provide Provincial revenues for local services which local services include, amongst the most important, the development of the lands of the Provinces and execution of public works incidental to that department – to provide these revenues is I say from two actual sources and one potential source – the actual source was the Dominion subsidy and the revenues from the lands. The potential source is the power of direct taxation – a power which was not expected to be much exercised, it was thought it would not be required and it was not expected to be exercised, and in fact it has hardly been exercised at all….12

Blake also put forth an interpretation of Confederation that called for equality among each of the Provinces. If the Court decided that the lands covered by Treaty No. 3 belonged to the Dominion, they would effectively deprive Ontario of “one half of its area in fact, and for a Kingdom even according to the amount at present in dispute 20 millions of acres…”13 This would essentially place Ontario on unequal footing with the other Provinces that retained their land and resources. The court, therefore, should conclude that the land belongs to Ontario, since this interpretation would not prejudice Ontario and would be in keeping with the spirit of the British North America Act.

You can read a copy of the full article below from The Globe, dated January 26, 1889, featuring Edward Blake’s argument.

See the transcribed version.

Mr. McCarthy, arguing for the Federal Government, disagreed and said that the lands were Indian lands that had been acquired by the Dominion as a result of war. The Globe article summarizes his position as follows:

Mr. McCarthy contended that these lands were Indian lands, lands kept for the Indians, sold for the Indians, and the proceeds of which went into the Indian fund, which was kept for the Indians. The Dominion acquired them in consequence of the “wars” (as they had been described in the American) which the Indians had waged against the British, and having acquired their rights in that way, those rights must be in the Dominion and not in the Province.14

The Judicial Committee of the Privy Council Decision

The JCPC (Judicial Committee of the Privy Council) generally agreed with Ontario’s arguments and ruled that Indians had the right to use and enjoy their lands, but did not have any real property rights or legal ownership of their lands.

Because the Indians did not own their lands, the land could not have been transferred to Canada by way of the Treaty. The Indian “title” was nothing more than a personal and usufructuary right (the right to enjoy the land), and “a burden on the underlying Provincial title at the time of Confederation.” Once Treaty No. 3 was made, the land and resources belonged to Ontario, not the Federal Government.

The JCPC also concluded that whatever Indian title was, it came from the Royal Proclamation of 1763. In other words, aboriginal title was a gift from the Crown.

You can view a copy of the Judgement of the JCPC below.

The newspaper accounts announcing the decision largely characterized the case in political terms as a victory for Premier Oliver Mowat over Sir John A. Macdonald, rather than one about aboriginal title or Treaties. The Brandon Sun, for example, announced “Victory for Mowat. The Little Premier Wins Another Great Case with the Dominion Government.” The article went on to read:

“Sir John Macdonald and colleagues were greatly disappointed today on the receipt of the following cablegram referring to the celebrated case of the St. Catharines Milling & Lumber Co. vs. the Queen, in which the Judicial Committee of the Imperial Privy Council gave judgement today.

Hon. Mr. Blake, who with Hon. Mr. Mowat, argued the case was in the city today and was well pleased with the decision which will have a far reaching influence. Their Lordships have decided that the Dominion Government cannot obtain possession of Provincial property by means of federal legislation. The decision will have an important bearing upon all questions now at issue between the Province and the Dominion.

You can see the whole article below.

Author: Janet Armstrong, PhD


1 Legal historian Kent MckNeil explains that the prejudices and value judgements of trial judge Justice Boyd very much shaped his conclusions about aboriginal title.

2 See Kent McNeil,  Flawed Precedent: The St. Catherine’s Milling Case and Aboriginal Title, pp. 114-115.

3 Kent McNeil,  Flawed Precedent: The St. Catherine’s Milling Case and Aboriginal Title, p. 64.

4 Blake’s argument before the JCPC, quoted in the Globe, January 26th, 1889.  Kent McKneil points out that the territory was never actually occupied by the French.

5 Remarkably, the Government of Canada was not a party to the case.  Rather, the federal government’s position was advanced by the St. Catharines Milling Co. lawyers

6 The Globe, July 23, 1888.  “MacDonald v Ontario.”

7 Kent McNeil, Flawed Precedent:  The St. Catherine’s Case and Aboriginal Title, pp. 41-43

8 Kent McNeil, Flawed Precedent: The St. Catherine’s Case and Aboriginal Title, pp. 48-49.

9 Mr. McCarthy’s Argument:  The Timber case before the Privy Council, The Globe and Mail, July 25th 1888, ProQuest Historical Newspapers, p. 3

10 Mr. McCarthy’s Argument:  The Timber case before the Privy Council, The Globe and Mail, July 25th 1888, ProQuest Historical Newspapers, p. 3

11 Macdonald V. Ontario , The Timber case before the Privy Council, The Globe and Mail, July 23rd 1888, ProQuest Historical Newspapers, p. 5

12 Blake, Argument before the JCPC, 1888.

13 Blake, Argument before the JCPC, 1888.

14 The Globe and Mail, Proquest Historical Newspapers, July 31, 1888