Voices in the Wilderness: Treaty 3 & the Dissent of the Supreme Court in St. Catherine's
135 Pages Posted: 17 Jun 2019
Date Written: May 4, 2019
The numbered treaties entered into at and around Confederation set out the terms by which Indigenous peoples and the Crown agreed to live together in much of what is now known as Canada. However, Indigenous peoples and the Crown hold starkly different interpretations of the treaties. For decades, the Crown and courts have relied on the decision in St. Catherine’s Milling and Lumber Company v The Queen in support of the position that the Indigenous treaty parties surrendered the entirety of their interest in lands at the time of the treaties in exchange for limited rights to use their ancestral lands. Courts’ reliance on St. Catherine’s obscures the fact that in the years closely following Treaty 3, both the Government of Canada and two Supreme Court of Canada justices advanced a different view of the treaty which aligns more closely with the perspective of the Anishinaabe treaty parties.
This thesis uses Treaty 3 and the St. Catherine’s litigation as a focal point to examine the obligations assumed by the Crown in relation to the Indigenous signatories on entering into treaties. Chapter One introduces the topic and objectives of the thesis. Chapter Two sets out the context and circumstances leading up to the conclusion of Treaty 3. Chapter Three provides an overview of the St. Catherine’s litigation. Chapter Four considers the effect of the Privy Council’s decision on treaty interpretation and implementation. Chapter Five provides a detailed exploration of the arguments of the federal government and dissenting judgments in St. Catherine’s. Chapter Six sets out, on a preliminary basis, possibilities for understanding the treaty relationship when viewed in light of the alternative perspectives from St. Catherine’s. The thesis concludes that the position of the Dominion and dissenting judges can be used to support an approach to treaty interpretation which could provide a renewed basis for affirming the Indigenous perspective on the treaty relationship and enforcing the obligations assumed by the Crown at the time of treaty.
Keywords: Indigenous; treaties; Crown; colonization; Canada
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