Flawed Precedent

In 1888, the Judicial Committee of the Privy Council ruled in St. Catherine’s Milling and Lumber Company v. The Queen, a case involving the Saulteaux people’s land rights in Ontario. This precedent-setting case would define the legal contours of Aboriginal title in Canada for almost a hundred years, despite the racist assumptions about Indigenous peoples at the heart of the case.

In Flawed Precedent, preeminent legal scholar Kent McNeil provides a compelling account of this contentious case. He begins by delving into the historical and ideological context of the 1880s. He then examines the trial in detail, demonstrating how prejudicial attitudes towards Indigenous peoples influenced the decision. He further discusses the effects that St. Catherine’s had on law and policy until the 1970s when its authority was finally questioned in Calder, then in Delgamuukw, Marshall/Bernard, Tsilhqot’in, and other key rulings. He also provides an informative analysis of the current judicial understanding of Aboriginal title in Canada, now driven by evidence of Indigenous law and land use rather than by the discarded prejudicial assumptions of a bygone era.

Kent McNeil is an Emeritus Distinguished Research Professor at Osgoode Hall Law School, York University. He is a member of the Royal Society of Canada and was a recipient of a prestigious Killam Fellowship in 2007. He has published numerous works on the rights of Indigenous peoples, including two books: Common Law Aboriginal Title (1989) and Emerging Justice? Essays on Indigenous Rights in Canada and Australia (2001). He has also co-edited a collection, Indigenous Peoples and the Law: Comparative and Critical Perspectives (2009). His work has been relied on by the Supreme Court of Canada and the High Court of Australia in landmark decisions on Indigenous land rights. He has also provided advice to Indigenous peoples in Australia, Belize, Canada, and New Zealand.

Peter Russell, professor emeritus of political science, University of Toronto:
Flawed Precedent is a brilliant, critical analysis of St. Catherine’s Milling, the 1888 decision that, for a century, had the enormous and pernicious effect of denying Aboriginal peoples the right to own their homelands … This book also charts the way forward to a jurisprudence that overcomes the racist attitudes that underlay St. Catherine’s.

Heidi Bohaker, associate professor of history, University of Toronto:
Kent McNeil provides a masterful examination of one of the most significant cases in Canadian law and the precedents it set for Aboriginal title and provincial rights within the federal system. He lays bare the racism and prejudice inherent in the ruling, and explains subsequent appeal court decisions in the case. His findings have the potential to affect contemporary land claims cases today.

John Borrows, Canada Research Chair in Indigenous Law, University of Victoria:
Contemporary Canadian law is profoundly shaped by the racism embedded in its foundation. Kent McNeil has written the definitive work about Canada’s “leading” Indigenous land rights case. He successfully packs a lifetime of scholarly research into this work.