“Grace and Policy”: St. Catharine’s Milling & Lumber Co v. the Queen

St. Catharines Milling & Lumber Co. v. R, 

Year: 1887

Court: Supreme Court of Canada

Citation: 13 S.C.R. 577

Location: ON

TAGS: Aboriginal Title

This decision affirmed that Aboriginal title existed as a right at common law in Canada, but that it could be extinguished at the Crown’s pleasure. This case was the leading decision on Aboriginal title until 1973. 


This dispute arose because of a jurisdictional issue between the Ontario and federal governments. The federal government had granted St. Catherine’s Milling and Lumber Company a permit to harvest trees in Treaty 3 territory. In Treaty 3, the Salteaux tribe of the Ojibway people ceded the land to the federal government. Accordingly, the federal government granted the permit to St. Catharine’s. Ontario successfully argued that the federal government could not grant the permit because it infringed on provincial jurisdiction. This decision was appealed all the way up to the Judicial Committee of the Privy Council (the highest court in Canada at the time).

Why this Case Matters:

This was the leading case on Indigenous land rights until Calder v British Columbia (Attorney General) in 1973. Counsel for Ontario submitted three possible characterizations of Indigenous interest in land:

  • Indigenous peoples had an absolute interest in their land
  • Indigenous people had a right of “occupancy and enjoyment of a special kind’ which was tribal in nature, non-transferable, and limited to the hunting and fishing
  • No absolute legal right to land, where the Crown permits Indigenous peoples to use and enjoy the land as a matter of “grace and policy”

The third characterization was adopted in this case.

Supreme Court Judgment: 

CanLII – St. Catharines Milling and Lumber Co. v. R., 1887 CanLII 3 (SCC), 13 SCR 577

Go Deeper: 

University of Alberta Faculty of Law, Tansi Nîtôtemtik – Case Briefs: St. Catharine’s Milling

Canadian History – St. Catherines Milling v. The Queen

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