Monuments are one thing, Stare Decisis and Racist Colonial Law is Another

Aboriginal Title | Indigenous Legal Orders

John A. Macdonald was a man of his times.  I gather that is the underlying social acceptance that Canada’s early days were days in which racism against Indigenous peoples fuelled both policies of Governments in Canada and also colonial laws in Canada.   As a lawyer that attended a law school building named “Macdonald Hall” at Queen’s University I was very aware, as one of a small handful of Indigenous law students, that law has its racist under and overtones and reconciliation is a very long journey ahead.

Many Indigenous lawyers and law students may attest to the painful experience of studying  property law in first year, it hits your spirit hard.  For me, it was especially hard because the first precedent of Aboriginal property law is based on an awful racist stereotype of my people, the Anishinaabe Nation in Treaty #3.   In the common law, facts set the stage, and it did so for the Judicial Committee of the Privy Council, which was a court of appeal above our Supreme Court in 1888.  The watershed St. Catherine’s Milling and Lumber case begins with a terribly racist trial judgment by Chancellor Boyd. 

Some reflections of the judgement are the phrases: “the native tribes were in an untaught and uncivilized condition”; “the rude red-men of the North-West” and, “Ojibbeways, most of them presenting a more than usually degraded Indian type.”   The courts above did not reject these racist foundations.  On appeal, the Chief Justice of Ontario wrote: “For a clear understanding of the case before us we are very much indebted to the learned Chancellor for the very clear, full, and well-arranged statement with which he prefaces his judgment.”  Attention to this judgment’s racist undertones did not reject its findings, the case appears as a precedent in many cases as the bulwark to advance a full title to the provinces in Canada despite the legal fictions of terra nullius and the doctrine of discovery.

We exported our legal fiction to Australia in the Mabo decision:  “Once the Crown acquires sovereignty and the common law becomes the law of the territory, the Crown’s sovereignty over all land in the territory carries the capacity to accept a surrender of native title. The native title may be surrendered on purchase or surrendered voluntarily, whereupon the Crown’s radical title is expanded to absolute ownership, a plenum dominium, for there is then no other owner” (citing St. Catherine’s Milling and Lumber Co. v. The Queen (1888)).

I contrast this decision with a New York Times reprinting of a Toronto Globe article in 1881.  “The Great Chief of the Ojibways” was a first-hand account of the meeting between my Chief Mawindobinesse and the Governor General of Canada.  The account pays little attention to “his Excellency” and paints a dramatic picture of my Chief, a grand chief of Treaty #3 or Ogichidaa in our language.  In the description, the article does not describe an “unusually degraded type” of Indian: He looks like a man of superior courage, intelligence, and character, and in looking at him it would be hard to divest one’s self of the idea that he was not devoid of culture.  Mr. McColl, of the Indian Department, who speaks Ojibway fluently, tells me that on one occasion at the north-west angle during some of the treaty negotiations Mawindobenesse made a speech of some two hours’ duration, which was fluently delivered, contained many really eloquent passages, and little, if any, useless repetitions of ideas.  It is almost needless to add to this description of this great chief, whose home is upon one of the richest spots in the wondrously fertile valley of Rainy river, that his authority over the other chiefs and Indians of his region is nearly or quite absolute.

Stare decisis is the legal principle of determining points in litigation according to precedent.  And the snowball of precedent for Indigenous ownership of territory all comes from racist elements in colonial North America, the Marshall trilogy of the 1820s and 30s, and the St. Catherine’s Milling and Lumber decisions of 1885-1888.  The Supreme Court of Canada said in the recent Tsilhqot’in Nation decision: “the doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation of 1763.”  However, the Marshall trilogy and the snowball of precedent continues this legal fiction to the present day, as long as the St. Catherine’s Milling and Lumber decision is a foundation of Canadian law and the basis of provincial land and title holding.

It is important to note that the Supreme Court of Canada reconsidered its decision of R v. Morris made in 2006 in the Tsilhqot’in Nation and Grassy Narrows First Nations cases regarding the doctrine of interjurisdictional immunity.  Stare decisis was not so important there.  But, the doctrine of stare decisis was key in the negotiations on the “advanced costs” agreement with Ontario as Grassy Narrows as an appellant went forward.  It was agreed that St. Catherine’s Milling would not be the subject of these appeals.  The common law seems to not work in our favour largely because the high courts in this country do not understand historic treaties, and we do not have the resources to put important evidence and Indigenous perspectives of historic treaty reconciliations forward.

The greatest injustice in Aboriginal law in Canada is that Chief Mawindobinesse was not given a voice in the 1885-1888 court challenge that would set the precedent for the inherent authority our Nation had over the 55,000 square miles territory in present-day Northwestern Ontario and Manitoba.  The treaty was made “openly and in the light of day” and he trusted his treaty partner in honouring the agreement made, which was both oral and written.   Reconciliation cannot happen while these racist doctrines are being allowed to continue to limit and circumscribe our Indigenous governance and title rights today.

by Sara Mainville