PUBLIC RECORD
OFFICE
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Reference :-
C.O. 885
19 PUBLIC RECORD OFFICE, LONDON
|ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
That the fact of an addition is admitted by the Government; but there is a question as to the exact position of the original boundary, and consequently as to the extent of the addition. * (See Tracing B. with Despatch 10 of 2nd February 1865.)
That in January 1858, the Home Government gave notice of their intention to re-purchase the island, under the powers reserved in the deed of grant; and in the course of the year the Governor, Mr. Douglas, ceased to be an agent of the Company, That he was succeeded in the latter capacity by Mr. Dallas.
That Mr. Dallas made fresh plans, more or less at variance with those of 1858, under which he proceeded to sell, for the exclusive benefit of the Company, what he considered as their private property.
That among other things he sold Lot Z, notwithstanding its reservation for public purposes in 1858, by Mr. Douglas and Mr. Pemberton, of which he declares himself to have been ignorant.
That this was an evident injury to the Government buildings, as it deprived them of one of their street frontages, and more than a fourth of the ground attached to them. That it is also alleged to be an injury to those who had bought building lots on the opposite side of the street, believing, on the faith of the plans of 1858, that they would have opposite them a Government reserve.
That, meantime, the notice of re-purchase, given in 1859, had raised a further and larger question which in 1860 it was determined to refer to the Judicial Committee of Privy Council, viz., the question whether the Company were really entitled to treat as private property the 3,084 acres above mentioned, which comprise the site of a great part of Victoria, and for the sale of which they had now realized enormous sums of money, chiefly in consequence of the gold discoveries.
That the negotiations for the re-purchase ended in an arrangement intended to settle all these questions, and to restore the lands of the Colony to the absolute control of the Government.
1. That under that arrangement the Home Government was to pay the Company a sum of about 55,000l., being the re-imbursement of money spent by them in government and colonisation.
2. That the Emigration Commissioners on the one side, and the Company on the other, executed an indenture dated 3rd February 1862, containing the following provisions (Colonial Pamphlet, pages 41, 42):-
(1.) "That all sales made by the said Company, previous to the first day of January 1862, of any portions of the land so occupied by them as aforesaid (viz., the 3,084 acres) before the 13th January 1849, including water frontages, and the spaces between high and low-water mark, abutting on such portion of land, shall be valid and effectual. as against Her Majesty, her heirs, and successors.
(2.) "That the Company shall retain for their own use and benefit, the proceeds and purchase moneys of all lands so sold by them as aforesaid."
(5.) "That the whole of the remaining unsold lands in the said Victoria district, lying to the south and west of James Bay, including the site of the new Government buildings, as far as the old fence in the rear thereof, dividing it from a farm known as Bexley, Beckney, or Dutnell's Farm, shall be forthwith conveyed and surrendered by the Company unto and to the use of Her Majesty, her heirs, and successors."
That under these circumstances the Colonial Government desires to retain or regain possession of Lot Z, while the Company desire that the title of their purchaser should be completed or allowed.
That it is urged on the part of the Government and public of Vancouver Island, that the sale of Lot Z was no sale, and should not be considered as covered by the Indenture of 1862; 1st, because the Company were not authorised, by the grant of 1849, to sell land required for public purposes, and Lot Z was so required, having been reserved for Government buildings by Mr. Douglas, in his double capacity of Governor and company's agent; 2ndly, because the official plan of 1858, which represented Lot Z as Government reserve, constituted a pledge to the public that it should be so maintained, on the faith of which pledge certain lots of land have been bought, and particularly those on the opposite side of the street.
That the Colonial Government therefore desire that proceedings should be taken against the present occupants under the grant from the Hudson's Bay Company.
That, on the other hand, the Company will probably contend that reserves of this 'kind, especially reserves of what they consider to have been their private property, unaffected by the trusts of the deed of grant, ought to be held to have been provisional, at any rate till confirmed, or till granted to the Government in trust for the Colony by them (the Company). In the present case no such confirmation was given or grant
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issued; that, as between the Government and the Company, the sales of Government reserves could no doubt have been effected by common consent, and, therefore, whatever may be the rights of private persons, the Crown at least is precluded from calling the sale in question, by the first clause of the Indenture of 1862.*
That the Company is, of course, concerned to avoid any step which would throw a general doubt upon their right to deal as they have done with lands in and near Victoria under their second plan of 1859.
That it is extremely undesirable that the question should remain unsettled, because till it is decided the reconveyance of Vancouver Island to the Crown is delayed, and it is of course possible that much public inconvenience and insecurity may be caused in the Colony by this delay.
Mr. Elliot was therefore desired by you, sir, to request that we would take these circumstances into our consideration, and favour you with our opinion-
1. Whether the reserve and dedication of Lot Z to public purposes was effectually made by or on behalf of the Company.
2. If so, whether the Company, with or without the concurrence of the Crown, could afterwards cancel that reservation, so as to enable them to sell part of the reserve for their private advantage.
3. Whether the agreement of February 1862 would operate retrospectively as a confirmation of the cancellation and sale, or preclude the Crown from impugning their validity.
we would recommend the Crown to pursue, having 4. Generally what course reference to its duty to give all just protection to the interests of the Colony, and, on the other hand, to its equitable or legal obligations to the Hudson's Bay Company.
In obedience to your commands, we have taken this matter into consideration, and have the honour to
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Report
1. That after all that has occurred, we no not think the Crown can now dispute the right of the Hudson's Bay Company to regard the land, of which they were in possession before 1849, as absolutely their own. With respect to what is called the " dedication of 10 sores of this land, we think that the agreement of 1862 has rendered it unnecessary to consider any question, except as to parcel marked Z, which is admitted not to have been originally part of the 10 acres, and, as to this parcel, it is not made out to our satisfaction that, as between the Crown and the Hudson's Bay Company, it was ever dedicated, in any binding manner, to any public purpose.
2. If Lot Z had been so dedicated and given up to the Crown, the Company could not sell it without, but we think they might sell it with, the consent of the Crown.
3. If the facts stated in the memorandum enclosed in the letter of Sir Edmund Head, of May 2nd 1865, be correot, viz., that Lot Z had been occupied and tilled by the Company, and sold to Mr. Lowenburg before February 1862, and that all this was then known to the Government, we think that the Indenture of the 3rd of February 1862 operated to validate that sale, so that the Government cannot now dispute it.
4. On the whole, we think the most advisable course would be to purchase the land of Mr. Lowenburg; if, indeed, he should refuse to sell on reasonable terms, probably there would be no difficulty in obtaining powers of compulsory purchase from the Colonial Legislature, on the payment of fair compensation.
We have, &c., (Signed) ROUNDELL PALMER.
R. P. COLLIER.
The Right Hon. Edward Cardwell, M.P., &c.
&c.
&c.
P.S. The following copies of papers were annexed to Mr. Elliot's letter, and are now returned:→→
(1.) Parliamentary Paper. House of Lords, 18, 12th February 1849.
(2.) Parliamentary Paper, House of Commons, 103, 7th March 1849.
(3.) Parliamentary Paper, House of Commons, No. 83, 1852.
(4.) Despatch from Governor of Vancouver Island, No. 10 of 2 February 1885, and cnclosures, including Colonial Blue Book.
(5.) Letter of Governor of Hudson's Bay Company, with memorandum by solicitor
of Company.
(6.) Copy of official plan of Victoria (1858), printed 1861.
(7.) Present plan submitted by Company.
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