Lumber Co. with taking lumber without a valid permit. The federal government argued that the Ojibway had held full title to their lands until they surrendered their Aboriginal title to the Crown under the terms and conditions of Treaty 3, that included some monetary payments. To support their position, the federal government of Canada arguedthat Treaty 3 reflected the Royal Proclamation of 1763’s recognition of full Aboriginal ownership and jurisdiction; which, having been surrendered to the Crown, now gave the federal government the right to issue permits to private companies like St. Catherine’s Milling and Lumber. The Province of Ontario countered with the argument that, prior to the signing of Treaty 3, the underlying title to all the land at issue was not held by Aboriginal title, but was already owned by the hovering sovereign who acquired it by virtue of the doctrine of discovery/occupation/settlement set out in the Memorandum of the Privy Council in 1722. Treaty 3, according to the provincial argument, simply consolidated the extinguishment of whatever vague interests in the land the Ojibway might have had prior to contact with Britain, that might have remained a “burden on the Crown’s title” after the Royal Proclamation of 1763 was issued, rendering the lands in question unencumbered Crown land. The British North America Act that consolidated Canadian Confederation in 1867, the Province of Ontario’s argument continued, had transferred Crown land to provincial jurisdiction.
The Supreme Court of Canada agreed with the Province of Ontario, stating that “the tenure of the Indians was a personal and usufructuary10 right dependent upon the goodwill of the sovereign.” In other words, even if some form of Aboriginal title had pre-existed Britain’s “discovery” of North America or survived the Royal Proclamation of 1763, it was a type of property ownership that was inferior to title in fee simple,11 recognized as paramount by British law. Regardless, Aboriginal rights of any sort, the Supreme Court of Canada ruled, were only those created—not recognized—by the Crown. The federal government appealed the court’s decision to the Judicial Committee of the Privy Council; which, in turn, upheld the Supreme Court of Canada’s ruling. Lord Watson cited the precedent set by Chief Justice Marshall’s 1823 decision in Johnson v. McIntosh upholding the doctrine of discovery/occupation/ settlement based in the concept of terra nullius, as authority for the Lords’ decision.
Much of the legal argument in the case of St. Catherine’s Milling and Lumber Co. v. R. revolved around competing interpretations of what form of Aboriginal title or interest the Royal Proclamation of 1763 recognized or created. Lord Watson concluded that while “there was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right…their Lordships do not consider it necessary to express any opinion upon the point.”12 In effect, however, the Privy Council’s decision affirmed that Aboriginal title was a mere “burden” on the hovering sovereign’s underlying title to all the land.
Lord Watson’s ruling that the only Aboriginal rights that could be recognized in law were those granted, or taken away, by the Crown, marked the rise to prominence of the theory of “legal positivism” in British and Canadian jurisprudence. Legal positivism is a term used to describe the “tendency to treat jurisprudence as an exact science, a rational process that consists of identifiable data and rules,”13 modelled on the natural or physical sciences. Positivism in social theory is based on the assumption that human social life can be studied using the same methods as those employed by the natural and physical sciences. Its adherents claim that “objective” knowledge about social reality that is free of any and all bias can be obtained by trained researchers. According to positivist theory, social scientists should first use the five senses recognized by western culture—sight, sound, taste, touch and smell—to capture data on human behaviour. The next step is to organize the data according to prescribed categories. Finally, research findings should be explained by reference to theoretical frameworks developed by previous generations of social scientists. The sense of sight and the practice of systematic observation is the most privileged source of knowledge in positivist social research: “seeing is believing.” Studies in behavioural psychology that place subjects in experimental environments and monitor how they respond to particular stimuli—say, for example, fear—represent the type of positivist social research that has been popularized, and that most people are familiar with. Conclusions are based on how a majority of research subjects respond to the particular stimuli. So, for example, positivist researchers conclude that “humans respond to fear by either fight or flight.” Of course, this does not tell us anything about what frightens who, where, when, or why. Nor does it tell us who can fight and who cannot, or where anyone flees to. We will never know how people who were not research subjects responded, or whether there are third or fourth alternatives that have escaped the research design.
Legal positivism dispenses with the requirement that researchers must study phenomena that exist independently of the observer, and substitutes law itself for “objective” reality, and judicial decision-making for scientific methodology. Simply put, the law creates reality that is real because it has been created by the law. Hence, regardless of what might actually exist, “on the ground,” under the doctrine of legal positivism, the Crown creates and extinguishes Aboriginal title and rights “at its pleasure.”14 Critics of legal positivism argue that jurisprudence is better understood as resulting from the accumulation of judges’ interpretations of evidence and arguments over time in specific social contexts, and that the arts, literature and humanities provide more useful models for understanding law than the hard sciences.15
The Ojibway, whose lands and histories were the subject of the dispute in the St. Catherine’s Milling and Lumber v. R. case were neither consulted nor represented in court. As if they didn’t exist.
Honour Among Thieves: in Africa
The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them….
On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest, but the position of the natives of Southern Rhodesia within it is very uncertain; clearly they approximate rather to the lower than to the higher limit. 16
—Lord Sumner, Judicial Committee of the Privy Council of the British House of Lords, 1919.
When deciding Aboriginal title and rights cases, Canadian judges have available to them a wide range of historic precedents, diverse interpretations of these precedents, and variously reasoned arguments to select from in constructing their own rulings. They may draw on arguments waged, and decisions made, throughout the history and geography of the British Empire-cum-Commonwealth. The ruling quoted above in an African case—Re: Southern Rhodesia—along with Chief Justice Marshall’s American cases, and the Canadian St. Catherine’s Milling and Lumber judgment, have come to constitute an unholy trinity of precedents repeatedly summoned by contemporary jurists.
The Re: Southern Rhodesia judgment sets out the principle that, in order to determine the legitimacy of Indigenous peoples’ land rights claims, imperial courts should first assess the claimants’ position on the ladder of evolutionary progress hypothesized by nineteenth-century evolutionary social theory. Lord Sumner’s first option for those found to be “low on the scale,” is a repetition of the Privy Council’s Memorandum of 1722’s doctrine of discovery/occupation/ settlement justified by the assumption of terra nullius, itself a repetition of Lord Coke’s judgement in Calvin’s Case in 1608. In 1722, whether or not British imperial law would classify Indigenous peoples as fully human
