Every July 1, Canadians gather to celebrate the birth of a nation. But the constitutional foundations of Canada are more complicated than the story told in classrooms.
Section 109 of the Constitution Act, 1867 states that provincial ownership is subject to any Trusts and any Interest other than that of the Province. St. Catherine’s Milling (1888) established that provincial title can be burdened by an outstanding Indian interest until lawfully surrendered. Seybold (1903) confirms that a lawful surrender is the trigger that lifts the encumbrance.
That trigger has never been pulled along the Grand River. The Haldimand Proclamation of 1784 granted lands to the Mohawks. No surrender appears in the historical record. This is an argument about title, not sovereignty, and Canadian courts have never ordered the dispossession of innocent third-party landholders for a Crown defect.
