No. 11
20 April 1863
My Lord Duke,
Adverting to previous correspondence upon the subject of the Hudson's Bay Company's claim to land at Victoria, and to the Indenture dated 3rd February 1862 containing the arrangement entered into between Her Majesty's Government and the Company for a settlement of the question,
I
I have the honor now to forward to your Grace copy of a Map which I have received from the Agent at this place of the Hudson's Bay Company, accompanied by a Letter explaining and exhibiting the portions of land to the South of James' Bay that will revert to the Crown under that Indenture.  
2. I also forward a report from the Attorney General upon the Map in question, and a tracing from the Official Map of 1858, upon which the greater portion
of
of the Lots in the Town of Victoria were sold.  
3. From the first named Documents it will be seen that a portion of land equal in all to about 60 Acres, to the south of James Bay, will revert to the Crown. This is indeed the whole that the Crown takes by the arrangement; for if the terms of the Indenture be strictly fulfilled it would deprive the Crown, as I shall presently explain, of land of which it is now actually in possession, and has been in
possession
possession for years. The extent of ground thus to be surrendered is certainly more than I anticipated, but I fear it will not equal the expectations entertained by Your Grace at the time the Agreement was executed, and when you addressed to me your Despatch No 95 of the 30th April, expressing your Grace's confident expectation that in the "large extent" of lands thereby recovered to the Crown, I shall be able to select a fitting site for a Barracks. So far as this point is concerned
a
a reference to the Map will shew that with the exception of a few not by any means valuable Town Lots—being for the most part situated in a swamp still uncleared and undrained, and far remote from the business and valuable portion of the City, which lies on the North side of James Bay—the land to be surrendered consists of Ten Sections, varying in size from 9 to 2 1/4 Acres, situated close to the seashore in a position altogether unsuitable for a Barracks; inasmuch as a Vessel
could
could in a dark night run across the Straits of Fuca, from the opposite Port of "Angelos" on the American side, distant only 15 Miles, and with a few Shells sweep the whole position.  
4. A comparison of the present Map with the official Map of 1858, will shew that various alterations have been made in the plan then laid down. I am not aware however that it is incumbent upon Her Majesty's Government to take any steps in respect to this matter. If the Hudson's Bay Co
have
have violated their Contract with purchasers of Land in 1858, those purchasers can institute proceedings to obtain redress. The two most serious alterations to which I am bound however to call Your Grace's attention are  
1st The laying out and sale of Lots along the water frontage between the Government Buildings Reserve, and Laurel point, such water frontage being laid out as a road upon the Map of 1858.  
2nd The laying out and sale of a portion of the Government Buildings reserve.  
By the first action the Colony is
deprived
deprived of a water frontage that would have been eventually at the disposal of the Legislature, and that, if not sold, would probably have brought in an annual Revenue of over Five thousand pounds Sterling (£5000); or if sold would I believe at the present moment realize some Ten thousand pounds (£10,000); and so soon as the Dredging Machine is at work and a few improvements are effected these Lots I am satisfied would bring a sum little short of Thirty thousand pounds (£30,000); for several instances have recently occurred where water Lots in less available, although more improved positions,
in
in Victoria Harbour have been sold at prices ranging from Three to Four Thousand pounds Sterling (£3000 to £4000) each Lot. The Lots before referred to were disposed of by the Hudsons Bay Company privately at, I am told, the nominal price of Twenty pounds a Lot, and I believe almost entirely to their own Servants; indeed I am given to understand upon good authority that the greater portion of them are in the hands of one individual a servant of the Hudson's Bay Company. I fear however that nothing short of an entire setting aside of the
Indenture
Indenture of Agreement would give Her Majesty's Government power to interfere in this matter, inasmuch as the 1st Article confirms all sales of water frontages and fore-shore rights, so far as Her Majesty, Her Heirs, and Successors may be concerned.  
With respect to the second alteration viz. the sale of a portion of the Reserve upon which the Government Buildings stand, I have already very fully explained the whole matter in my Despatch to Your Grace No 66 of the 24h October 1861, and I would beg a reperusal of that
Despatch
Despatch, which probably arrived too late to be placed in the hands of Her Majesty's Commissioners when settling the Agreement, or if in their hands was not probably, from ignorance of the locality, connected by them with the portion of land which they agreed to surrender by, in the the 5h Article, admitting the words "as far as the old fence" dividing the "Government Buildings from a Farm" of the Hudsons Bay Company. The concession as it appears in the Agreement is reasonable enough, and Her Majesty's Commissioners, ignorant of the true facts of the case, could not
insist
insist upon depriving the Company of a portion of a farm actually fenced in, as the specious words in the Agreement would imply. But what are those two facts. They are given at length in my beforementioned Despatch. A Government Reserve consisting of 10 Acres was laid out in 1858. Some of the posts are in the ground to this day. The near portion it is true did infringe upon a small part of what once had been considered the boundary line of the farm alluded to, but the reason of its doing so was to give the Hudson's Bay Company a more
extended
extended water frontage which was of more value to them; for if the Reserve had not been carried so far back as to infringe upon the supposed boundary mentioned, the frontage must have been increased and the Company by that means would become the losers of far more valuable land. Mr Berens the Governor of the Hudsons's Bay Co admitted the Government to be in possession of this Reserve in 1859. The Agents of the Hudson's Bay Company at this place also admitted it in 1859, as in that year the Lots forming Block 60 were laid off and sold, and
upon
upon the Map upon which they were sold, the rear boundary of the Government Reserve was exhibited as part of the line of the street. In 1861 Mr Dallas disposes of a piece of this Government Reserve—the portion marked L in the Company's present plan—by private sale to a Land Agent, for I am told a sum very considerably under its value; and in 1862 by the use of the peculiar language before referred to in the Agreement he obtains Her Majesty's confirmation of such illegal sale. The Government have been in possession
of
of the whole of this Reserve since it was first laid out. They are still in possession of it. To give up the rear portion marked L in the Company's Map, would be to render the ground almost valueless for Government purposes, for the remaining space would be too circumscribed, the exit by the rear would be cut off, objectionable Buildings could be erected close to the Government Buildings, and a constant fear of fire would exist. In short so great a nuisance would the possession of the disputed piece become that the Government would be compelled, if it had been
legally
legally sold, to buy it back. I cannot but think that this result must have been foreseen when the arrangements were made for its improper alienation. I shall await Your Graces instructions in respect to this Reserve before I give up any portion of it. The reclamation and sale of a portion of it in 1861, was a decided breach of faith on the part of the Hudson's Bay Company towards the Government; a breach of faith which I am sure would not have been confirmed by the Crown had the circumstances been understood.  
5. As a part of the whole
question
question involved in the Indenture of Agreement, I beg to report upon the plans forwarded to me in Your Grace's Despatch No 123 of the 19h December last. In reply to your Graces inquiry, I must state that I do not consider these plans accurately represent the land surrendered by the Agreement. I will proceed to examine them seriatim  
No 1 Harbour Masters Office  
The Lot is herein represented as at the Foot of Broughton Street. The Agreement provides for 50 feet at the foot of Fort Street; a
far
far more valuable property.  
No 2 Prison Lot, Police Barracks  
This is correct, with the exception of a portion of the wide Street in front of the Police Court being cut off. This is a matter however in which no interference is required. The street in question has been used for years, has been macadamized by the public, and therefore cannot be reclaimed by the Company, even presuming the rights of private property holders were not affected.  
No 3 Post Office Lot  
This would deprive the Government of the two adjacent Lots No 1605, and 1607, a portion of property in
undisputed
undisputed possession of the Government for the last 13 years, and upon which a Government Building is actually now standing. Article 4 of the Agreement treating of the Post Office Lot, apparently makes a generous surrender of property by the Hudsons Bay Company, if that property to be required by the Government as a convenience to avoid the removal of a Government Building. I will shew however that so far from this being the case a practical appliance of the Agreement is the virtual surrender to the Company of property that they never before possessed, and never had any claim to. The words of the
Agreement
Agreement are Provided always that if the Post Office or any part thereof shall be found to stand on a portion of two Lots as marked in the said official plan, the whole of both Lots shall be conveyed and surrendered to Her said Majesty, Her Heirs and Successors. Lots 1603, 1605, and 1607, are occupied by two Government Buildings. Mr Dallas was as well aware of this as he was that Lot 1603 was above the site of the Building which was generally used as a Post Office; and I cannot understand why that Building alone should have been mentioned, and the other wholly overlooked; except indeed to obtain
what
what the words of the Agreement would suggest, a surrender to the Company of property possessed by the Government, and required by the Government for public purposes. The Map forwarded by the company is almost conclusive evidence of this, for thereupon the Post Office Building is very carefully exhibited as not in any way infringing upon Lot 1605 or 1607 but no Government Building is shewn as standing upon them, which is in reality the case. Moreover this tracing must have been taken from a Map in the possession of the Company, and I suspect of Mr Dallas also, prior to the conclusion of the Agreement,
or
or at all events prior to the arrival here of the copy of the Agreement, for this tracing exhibits the Post Office building as projecting on the Street. The building was moved back early in April 1862 and therefore the Map must have been made at the very least anterior to that date. Lot 1603 by itself is useless for the site of a Post Office, being only 30 feet frontage by 67 feet back, and the three Lots are absolutely required for the public convenience.  
No 4 Public Park, School Reserve  
The tracing of the public park I believe correctly represents its present boundaries, although not accordingly with the official Map of 1858, but as the Crown waives
its
its rights so far as sales of portions thereof are concerned, it is not necessary for the Government to move further in the matter. The School Reserve is correctly exhibited.  
No 5 Church Reserve, Parsonage and Public Cemetery  
These are correctly exhibited with the exception of a portion of the public Cemetery being cut off viz the Lot marked 2005. The Crown however has in this case relinquished all claim to such portion, and therefore I presume it is not intended that any steps should be taken for its recovery.  
No 6 Government Offices  
This tracing exhibits the portion
which
which has been cut off from the original Reserve and sold, marked L. I have already gone into this question and therefore need not describe the incorrectness of the tracing at greater length.  
6. To review the whole case. Assuming that Her Majesty's Government do not desire to move in the matter of the recovery of the water frontages, portions of the public park, and Cemetery, I yet think I have herein given sufficient reason for the Government to require that the Company should relinquish their attempt to obtain a portion of the Government Reserve
at
at James Bay, and the two Government Lots, now occupied by a Government Building in Government Street. Mr Berens adverts to the conditions of the Agreement requiring the surrender to the Government of a Lot at the foot of Fort Street, and, in his letter to Your Grace of the 3rd November 1862, observes that Mr Dallas, through whose medium the arrangement was come to, "never could have intended to have appropriated to the use of the Harbour Master ground already covered with Buildings, and in actual use." On the other
hand
hand I feel confident that had Her Majesty's Commissioners possessed as much local knowledge as Mr Dallas, they, on their part, never would have consented to yield up to the Hudson's Bay Company ground already covered with Government Buildings, and in actual use by the Government.  
To equalize this state of things I would suggest the following compromise, not that the public requirements will be satisfied thereby, but simply, since matters have proceeded so far, to bring the whole question to a speedy
termination
termination.  
1. The Crown to yield up the valuable Lot at the foot of Fort Street, and to accept the less valuable, and less convenient one at the foot of Broughton Street.  
2. The Hudsons Bay Company to relinquish all claim to Lots Nos 1603, 1605, and 1607, in Government Street, and to the rear portion of the Government Reserve at James' Bay, marked L in their Map now transmitted, and to convey the same to the Crown.  
I should think the Company will hardly object to accept of this amicable arrangement
of
of the matter. Under the Agreement they already take immense advantages. A vast property is secured to them. They are left in undisturbed possession of large sums of money which the sale of portions of that property has brought them; not one farthing being deducted for the benefit of the Colony, or even to pay for the expense of surveying and selling, which has been mainly borne by the Colony, and by the Imperial Government. All their actual outlay in connection with their tenure of Vancouver Island has been generously repaid in money
by
by Her Majesty's Government. And what does Her Majesty's Government take by the Agreement? A few Acres of comparatively valueless land on the sea Coast, and a few Town Lots that would have been sold long ago had anybody considered them worth buying. I would further mention with respect to the acceptance of 50 feet frontage at the foot of Broughton Street, that the ground originally claimed by this Government for a Wharf and Harbour Masters Office, as a public requirement and convenience
had
had a frontage of 200 feet. The circumstances in connection with this were brought to Your Grace's notice in my Despatch of the 7h February 1861 No 9. The steps taken by Your Grace in consequence thereof, as communicated to me in your Despatch No 61, of the 15h June 1861, led me to assume that the Hudson's Bay Company would place the 200 feet at the disposal of the Government: the Company, to use Mr Berens' words in his Letter of the 24 May 1861, having no wish to do anything that
"would"
"would militate against the public interests." Her Majesty's Commissioners have however been led to agree to the reduction of this claim to 50 feet, which although sufficient for a public Landing place, and for a Harbour Masters Office, is wholly insufficient for the purposes of a Wharf, according to the original intention.  
7. Adverting particularly to Your Graces Despatch of the 15h November last No 121, I would observe that I have had one or two interviews with the Companys Agents at
this
this place upon the subject of the early final settlement of the whole business; but I do not find them disposed to take any responsibility on their own hands. The matter must therefore be settled in London: and if the compromise herein proposed be accepted, and Your Grace decides that the terms of the Agreement be not further disturbed, I believe no obstacle will then remain to the immediate re-conveyance to the Crown of the whole Island, less the portions required or legally alienated by the Company: and so soon as I
hear
hear from Your Grace to this effect I can have one Map prepared for the purpose recommended by Your Grace.  
8. The Attorney General in his report accompanying this Despatch states his belief that some of the sales represented to be made prior to the 1st January 1862, are not bonâ fide. So soon as any fresh light is thrown upon this matter I will not fail to advise Your Grace. At present I can only say that if the case be otherwise, and the Company feel
hurt
hurt at such a suspicion being cast upon them, it has been brought about by their own proceedings. Had the sales of land been in all cases genuine and beyond question, I cannot understand why so much delay should have occurred in declaring what was sold, or why so much secrecy should have been observed, so that the Surveyor General could never at any time obtain the slightest information upon the subject. I mentioned these matters to Your Grace in my Despatches Nos 57 and 58, of the 3rd and 5h December 1862: and
as
as there is no want of qualified Surveyors and Draughtsmen at Victoria, and as the Agreement had reference to acts that were done prior to its date, and not to acts that were to be done subsequently to its arrival in the Colony—so far as the sales of land were concerned, I feel bound to say that the reason assigned by Mr Berens for the delay, "a want of assistance in making the necessary surveys and plans of the Property" only serves to give countenance to the suspicion instead of to remove it, for how could legal transfers
and
and bonâ fide sales of property be effected, if no Survey had been made at the time of the sale.  
I have the honor to be
My Lord Duke,
Your Graces most obedient
and humble Servant
James Douglas
Minutes by CO staff
ABd 15/6

To the Land Board.  
TFE
17/6

Documents enclosed with the main document (not transcribed)
  • Dugald Mactavish, Chief Factor, Hudson's Bay Company, to W.A.G. Young, Colonial Secretary, 7 January 1863, describing the portions of land to revert to the crown under terms of the recent agreement, such description to be used in conjunction with the accompanying map.  
  • G.H. Cary, Attorney General, to Young, 24 March 1863, explaining in detail how the Company had "violated the principle of the official Map of 1858," as per despatch.  
  • Copy, Elliot to "The Emigration Commissioners," 22 June 1863, "transmitting" this despatch for "any suggestions and observations."  
  • Map forwarded by the Hudson's Bay Company in conjunction with their letter as noted above, showing the portions of land south of James Bay to revert to the crown.  
  • Note (not on original but placed here for convenience). The portions
    colored Red exhibit the Lands sold by the Company prior to 1st January 1862. The portions marked H.B.C. are the sections selected to form the 50 Acres to be retained by the Company, over and above the lands already sold by them. The portions not colored (excepting Sec. 6 which was sold years ago and the before mentioned Sections marked H.B.C. will revert to the Crown. Vide Mr Mactavish's letter of 7 January 1863.  
  • Tracing from the official map of 1858, as per despatch.  
  • Enclosure No 4 in Governor Douglas' Despatch No 11 of 20 April
    1863
    . Forwarded to exhibit changes and alterations appearing on Hudson's Bay Company's Map of 7 January 1863, more especially with regard to rear line of Reserve forming the site of the Government Buildings—and the water frontage between the Government Reserve and Laurel point.  
    Minutes by CO staff
    Mr Elliot
    The H.B.Cy have been too sharp for us. And litigation, with a view  
     
    Despatch to London:
    Douglas to Newcastle, 20 April 1863, National Archives of the UK, 5737, CO 305/20. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871. Ed. James Hendrickson and the Colonial Despatches project. Victoria: University of Victoria. http://bcgenesis.uvic.ca/getDoc.htm?id=V63011.scx. Accessed 21 November 2017. 

    Last modified: 16:08:54, 5/11/2015