From Possession to Title?

Week 4

Find these slides online: https://webslides.baxterlab.ca/slides/property2025-26/04/
Category: Property 2025-26

Agenda

Recap: Weeks 2-3
Weekly Problem: Wolasteqey and Mi’gmaq Territory
19th Century Context
St. Catherine’s Milling v R

Recap: Weeks 2-3

Where do legal land relations come from? Where does property?
Treaty making amid 17th-18th century imperialism
Locke and complications
Mi’kmaq law and legal pluralism

Wolastoqey and Mi’gmaq Title Claims

Treaty context (contra St. Catherine’s Milling)
Feudal tenure context
What do the claimants hope to achieve?
Sovereignty, title and property

Which of these concepts are at play in this week’s problem? In St. Catherine’s Milling?

Sovereignty: the assertion of legal jurisdiction (incl. law-making power) vis-a-vis other nations.

Allodial title: direct ownership of land vested in the Crown (also called “radical” title).

(Beneficial) title: ownership of a legal estate in land held “of” the Crown (e.g. fee simple).

Property as a “bundle of sticks”

The Problem

How did British and Canadian law prior to the 20th century establish the legal foundation for state-sponsored dispossession of Indigenous peoples as part of what has been described as a “cultural logic of elimination”? In what ways do the remedies being pursued by the parties in the Wolastoqey and MTI claims address this history of settler colonialism? In what ways do they not?

19th Century Context: Settler Colonialism

Treaty of Paris (1763)
Royal Proclamation (1763)
Robinson Treaties (1850); numbered treaties (1871 - 1921)
Confederation (1867)

KEY MESSAGE: easy enough to trace settler colonialism (“cultural logic of elimination”) back to earliest European colonies (e.g. Newfoundland fishers block Beothuk access to coastal resources; French settlers excluded Innu from eel fisheries in Sillery, near Quebec). But the deployment of this logic along with large-scale European immigration only really emerged in latter part of 18th century, starting with Algonquin, Wolastoqiyik, Mi’kmaq, Anishinaabe, and Abenaki territories.

Changes in relative population numbers and military context shifted from regarding Indigenous peoples as important military allies to a “problem” to be addressed through violence, “protection” through isolation on reserves, and assimilation.

Treaty of Paris ended 7 years war (Britain + Prussia vs France + Austria); proxy wars in NA between British, French and their Indigenous allies; French forces at Montreal fell to the British in 1760; French ceded any imperial claims in North America to the British.

RP1763 issued at end of war to articulate legal doctrine regarding Indigenous land rights. Dual existence: (1) foundational relationship between British Crown and Indigenous peoples / affirmation of land rights and (2) instrument of Indigenous dispossession as the basis of settler colonial land policy (pre-emption)

SEA CHANGE between 1763 and 1850: British legal thinking moved from clear understanding that Indigenous peoples “owned” their land not ceded to entrenched belief that they had at most a right of occupancy.

E.g. leading thinkers and jurists began to “reinterpret” John Locke to justify this settler colonial perspective. Whereas in the early centuries after contact, it had been taken as self-evident that Indigenous peoples held property in their lands based on first possession, lawyers and others began to deploy Locke’s “labour theory” to argue that Indigenous peoples did not evidence the requisite level of intention or physical control to satisfy the test for possession (e.g. based on both legal standard that activities like farming were necessary and the myth that Indigenous peoples didn’t have agriculture)

19th century view crystalize in period of large-scale treaty-making. Pressures for natural resource extraction (esp. mining) in Anishinaabe territory motivating a first series of negotiated treaties that would be come the model for the numbered treaties.

With Confederation in 1867, the “founding” of Canada as a modern state was tied directly to the logic of settler colonialism and Indigenous elimination, as the founders sought to tie the country together through Western expansion and national industry. Institutionalized through “Department of Indian Affairs” and treaty-making.

Robinson-Numbered treaties were fundamentally “land cession treaties” that also contained key provisions related to cultural displacement and assimilation (esp the creation of reserves, provision of farming implements, education/residential schools).

Royal Proclamation, 1763

“should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds”

“strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose”

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1763-1850

From “title” to “mere possession”.

St. Catherine’s Milling

Below is a graphic representation of the legal positions of Ontario and Canada.

Forestry licences –> dispute between Ont and Canada as to benefit from public lands

St Catherine’s (defendant) in a kind of regulatory prosecution; loses at every level of court

NB Anishinaabe not party to the case and are not heard from by the court

Section 109 of Constitution Act 1867 said all lands belonging the Province of Canada passed to Province of Ontario at Confederation.

In 1871, Canada signed Treaty 3 with the Anishinaabe, which Canadian law interpreted as ceding all Indigenous rights in land to Canada.

Main legal question in the case was therefore about what kind of land rights the Province of Canada held prior to confederation. Was it the entire beneficial estate, that estate subject to some “sticks in the bundle” held by the Anishinaabe (e.g. rights to use, hunt), or no beneficial rights at all (because these beneficial rights were held by the Anishinaabe)?

If the latter interpretation, then Treaty 3 post-Confederation would have transferred beneficial title to Canada.

Canada relied heavily on the argument that RP1763 recognized the beneficial title in Indigenous nations.

Two Key Questions

How do the courts in St. Catherine’s Milling answer these questions:

What is the source of Indigenous rights in land (Aboriginal Title)?
What is the content of these rights?

Source

Boyd: “Before the appropriation of reserves the Indians have no claim except upon the bounty and benevolence of the Crown”
Strong: RP1763 + unwritten common law rule based on consistent practices of the Crown
Watson (JCPC): RP1763 - “Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown”

Nature:

Boyd: right of occupancy? mere licence?
Strong: “we find, that at the date of confederation the Indians, by the constant usage and practice of the crown, were considered to possess a certain proprietary interest in the unsurrendered lands which they occupied as hunting grounds;”
Watson: “personal and usufructory right dependent on the goodwill of the sovereign”

How did the Privy Council in St. Catherine’s Milling reach such a “thin” view of Aboriginal Title? What biases, assumptions, and legal principles allowed them to conclude that Aboriginal Title is a “personal and usufructory right”?

Terra Nullius

“Territory without a master”: the 19th century justification for the Crown’s claims to sovereignty and title.

conquered/ceded colonies: existing laws remain in place
discovered colonies: settlers import relevant British law
application in RP1763 / Johnston v McIntosh: Crown’s pre-emptive right to acquire Aboriginal Title
application in St. Catherine’s: no pre-existing Aboriginal Title (“mere possession”)

British imperial common law distinguished between “conquered/ceded colonies” (where Crown chose not to legislative via its prerogative power, existing laws and institutions remained in place) and “discovered/occupied colonies” (settlers carried with them relevant British municipal law that formed basis of colonial municipal law; Crown established necessary institutions)

Legal fiction of what would become known as the doctrine of “terra nullius” enabled courts to interpret BNA as “discovered”.

Gave British a basis for claims to sovereignty and radical title (but imperfectly applied in RP1763: Crown asserted only a right of preemption to acquire Indigenous sovereignty and title (e.g. through treaty)).
by time of St. Catherine’s Milling, the application of the ideas behind terra nullius and the doctrine of discovery had changed to DENY that pre-existing Indigenous legal orders and land rights had existed at all before assertion of British sovereignty

Revisiting Locke

How does Locke’s theory of possession become a justification for terra nullius in the era of settler colonialism?

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