Monday, January 04, 2021

Book Notes: McNeil on St Catherine's Milling: UPDATED with comment

(When the American economist and New York Times columnist Paul Krugman returns to questions of specialised economics, he will label his posts "Wonkish."  Fair warning: for this blog, this post may be "wonkish")

Before the holiday break, I was reading Kent McNeil's Flawed Precedent, a booklength study of the 19th century court case called "St. Catherine's Milling."* For almost a century St Catherine's Milling was the key precedent in Canadian law for the holding that, treaty or no treaty, First Nations had never been masters of the lands they occupied within Canada: it was all crown land under the sovereign. McNeil makes a vigorous case that the Supreme Court of Canada's overthrow of St Catherine's in the 1970s, beginning with Calder and Sioui, was not so much a making of new law as a finding that St. Catherine's was no precedent because it had been wrongly decided in the first place: aboriginal title to land was and always had been a legal reality.

McNeil's argument is that judges and courts, even in 1885, should have been open to legal arguments that indigenous peoples held title to land, but that the trial court in Ontario failed to hear evidence on that vital question. The trial judge's conclusion, that the Saulteaux people did not hold title to their land, was based simply on his ill-informed prejudices, which were then unquestioningly accepted all the way up to and including the Judicial Committee of the Privy Council.

Somewhat to my surprise, McNeil shows that the Privy Council was quite capable of being respectful of local and indigenous land laws in many places throughout the British Empire. Privy counsellors were rather proud of their ability to suss out the outlines of local law on questions such as landholding. McNeil cites several cases from Ireland, India, and Africa where the JCPC upheld the validity of local law and local custom regarding the ownership of land, even when English law and precedent would have forced a different conclusion. In St.Catherine's Milling, he argues, they were misled by the confident assertion of the Ontario trial judge, who heard no evidence on this point, that the Saulteaux of Treaty 3 territory in northwestern Ontario were simply too primitive to have any law or governance whatsoever, regarding land or anything else. The JCPC therefore applied a strictly English legal understanding of title. 

McNeil finds, in other words, that St. Catherine's Milling was bad law in the 1880s as well as in the 1970s.

McNeil's argument that the JCPC's decision here was an aberration from an otherwise respectable jurisprudential tradition surprised me. I'm familiar with the long tradition in Canadian historical writing which holds that JCPC decisions, particularly on questions of federalism, were generally driven by ignorance and hypocrisy. Here, suddenly, was a Canadian scholar broadly admiring of the JCPC's legal acumen. 

And in fact, St. Catherine's was a federalism case as much as an aboriginal rights case. Indeed, while McNeil is interested almost exclusively in the aboriginal rights implications of St. Catherine's, I came to his book mostly to sort out the federalism aspects of it. The St. Catherine's case was not started by the Saulteaux or their advocates. At the time it was mostly a fight between Ontario and Canada. Ontario argued that the signing of Treaty 3 confirmed that the Saulteaux territory it covered was Ontario crown land. Canada wanted to own and manage that territory as Canadian crown land. In effect, it was two pillagers quarreling over the spoils, you might say.

In the 1880s, this aspect of the St Catherine's case -- did provinces or Canada control lands acquired by treaty from First Nations? -- was much more pressing to Canadians than the rights of the Saulteaux or any other First Nation. Ontario was on the verge of becoming prosperous and powerful on the basis of immense revenues from the forests, mines, and waters of Ontario crown lands. If Canada had been able to claim territory acquired by treaty as federal crown land, those revenues would have flowed to Ottawa instead. Prime Minister Macdonald's aspiration to redefine Confederation as a unitary state -- with the provinces having only subsidiary, quasi-municipal powers -- would have taken a giant step toward realization. By concluding that ownership and title (as opposed to sovereignty) over the Treaty 3 lands was Ontario's because it had never been the Saulteaux's, the JCPC made a decision that was as crucial to Canadian federalism as it was to aboriginal rights.

So McNeil's argument that the JCPC judges were generally pretty good lawyers on questions of indigenous title in the Empire (though misled in this case) intrigued me. But McNeil does not extend that view of their juriprudence to federalism questions. In a brief consideration of how St. Catherine's was a victory for Ontario over Canada on the federalism issue (p. 105ff), he follows the Canadian tradition of assuming the JCPC, far from being a skilled and competent tribunal, was biased in favour of the provinces because they always wished to weaken Canada and strengthen Imperial (and their own) authority.  

Now I certainly hold that the long continuation of the JCPC over Canadian law (not ended until 1950) was unfortunate. As a self-governing society, Canada should have determined its own laws in its own courts. But it has always seemed to me that, for all the flaws of the JCPC, there was sound basis for the federalism decisions that often sustained provincial authority against federal claims. Simply put, they were reading the British North America Act correctly.

The JCPC judges may not have understood much about Canada from their perches in London, but they did understand parliamentary democracy. In a parliamentary system, which the BNA Act plainly established for Canada and for its provinces, parliaments are sacred things.They are the place in which the people are represented, the places in which the Crown's government is held accountable. It follows that parliaments cannot function if they are dependent and subservient, within the sphere of their authority, to arbitrary control from outside powers.That has always seemed to me the bright line the JCPC followed in Canadian federalism cases. It defended provinces from the invasion of their parliamentary powers by Canada because that's how parliamentary government works, not because it hated Ottawa. (It also from time to time defended the Canadian government from interference by the British government, I would suggest for the same reasons.)

(I was reading another book on indigenous governance over the holidays.  Maybe I'll get to that one tomorrow.)

*Superwonkish: I thought the case name should be spelled "St. Catharine's" with two a's, and that the legalists were in error in failing to note the milling company had taken its name from the two-a town of St. Catharine's in southern Ontario. Indeed the Ontario case report was styled "St. Catharine's," but in fact the company spelled its name with an e and an a: "St. Catherine's," and most case reports followed that usage. McNeil sorts all this out in an elegant footnote on page 194.

Update, January 5, 2021:  Thomas Bergbusch comments:

(I post pieces like this one hoping that it is just possible that there really may some overlap between the circle of people who would take an interest in these matters and the circle of people who see this blog.  So I was immensely heartened this morning to find the following comment from Tom Bergbusch, a reader of this blog with whom I have occasionally corresponded. His comment is posted here in its entirety. - CM) 

I have just read your most recent post – “Book Notes: McNeil on St Catherine's Milling” – with great interest. (I read all of your posts with great enthusiasm and interest.) You relate McNeil’s argument as follows: “Somewhat to my surprise, McNeil shows that the Privy Council was quite capable of being respectful of local and indigenous land laws in many places throughout the British Empire. Privy counsellors were rather proud of their ability to suss out the outlines of local law on questions such as landholding.”

This struck me as very interesting because it relates directly to the chapter I am re-reading in Bonny Ibhawoh’s brilliant 2013 book, Imperial Justice: Africans in Empire’s Court.   As this is precisely your area of expertise, I reckon you probably have some acquaintance with Ibhawoh’s work (he is a prof at McMaster). Anyway, what struck me is that this distinction – that some peoples were too primitive to have their landholding laws considered valid – appears to have been a common distinction drawn (often for imperial convenience) by the JCPC.  Here is what Ibhawoh writes about (and quotes from) the JCPC in this matter:

 "In its judgment, the JCPC famously noted that determining the status of native land rights in Africa was ‘inherently difficult’ because of the peculiar and varied character of indigenous customary land tenure systems. Lord Sumner stated in 1919:

"'Some tribes are so low in the scale of social organization that their usages and conceptions are not to be reconciled with the institutions or the legal ideas of civilized society.  Such a gulf cannot be bridged. It would be idle to impute to 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 people 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 foreseeable than rights arising under English law.'

 "… This hierarchy of native difference required the judge to evaluate in each instance whether a native community met the required standards of civilization and legal reconcilability to sustain a claim in court. Judges effectively needed to differentiate between indigenous cultures where these rights were recognized and those where they were not.”

I hope this is not just a lot of detail you already know (apologies if that is the case).  Ibhawoh provides all sorts of interesting instances where the JCPC decided one way or another.  However, reading this attitude back into the context of 1885, it seems to me that the Ontario trial judge (vile racist though he was) was doing precisely what the JCPC expected of him: articulating hierarchies of native difference.   He was a racist, but his judgement was probably not an “anomaly.”

Finally, Ibhawoh quotes Lord Sumner as saying (in 1919): “the old state of things, whatever its exact nature has passed away and… better has been established in lieu of it.  Whoever now owns the unalienated lands, the natives do not.”  (That is on page 128 of my edition of Ibhawoh’s book.)

 All the best and keep on posting!

The only mistakes you make here, Tom, are, I think, to call this topic my "area of expertise" and to guess I would be familiar with Bonny Ibhawoh's work. Let me make clear that until I received your email, I had never heard of Professor Ibhawoh or his work. I wrote this piece not out of expertise but to try to sort out a lot of things I had not previously thought about at all seriously. 

I think you are correct, and that Kent McNeil might agree, that the JCPC was working within a racial/cultural hierarchy in which some of the subject peoples of the British Empire were judged sophisticated enough to have their concepts of land ownership respected, while others were not. The law they accepted as existing in some Indian and African societies, they did not ascribe to, say, the indigenous peoples of Australia or, as here, the Anishinaabe of northwestern Ontario.  I want to take that error up more directly in tomorrow/today's post on Heidi Bohaker's new bookDoodem and Council Fire.

Thanks for enriching this discussion.   


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