No. 36
4 June 1861
I have lately had occasion to devote my closest attention to a highly important subject; the method adopted by the Chief Commissioner of Lands and Works for the conveyance of public land in this Colony, which was obviously leading to error and confusion.
2. The sale and conveyance of public land in British Columbia is regulated by the Proclamation of the 14th February 1859. The provisions of the Act, so far as they respect thealienationManuscript image alienation of land, are clear and simple: all public land having after survey to be put up for sale by public auction, and whatever remains at such auction unsold, is afterwards disposable by private contract at the upset price. The rule applies to all surveyed land, which cannot otherwise be legally conveyed.
3. The circumstances of the Colony rendering it expedient, as I have fully explained in my despatches to Your Grace, to open the whole country to immediate settlement, the Proclamation of the 4th Jany 1860 known as the Pre-emption Act was issued, for the purpose of throwing open the unsurveyedDistrictsManuscript image Districts of the Colony for settlement, and of enabling bonĂ¢ fide settlers and improvers to acquire land and to make homesteads for themselves without waiting for the Official survey to be completed, which it will take years to accomplish.
4. The only two methods therefore of acquiring public land in British Columbia, as by law established, are as follows:
1. The absolute purchase for cash of land included in the official survey, under the Proclamation of the 14th Feby 1859 without conditions of settlement.
2. The acquisition, without purchase, of land not included in the official survey, on condition of continuous residence and improvement and payment attheManuscript image the upset price, after the official survey, under the Proclamation of 4th Jany 1860.
5. Title deeds are in all cases issued to the purchaser, for lands sold under the first of those Proclamations there being no difficulty in describing and identifying the land by the Official plans.
6. On the other hand, lands held under the Pre-emption Act, which deals exclusively with unsurveyed land, cannot be identified otherwise than by actual occupation, and the residence of the persons desirous of acquiring them, therefore continuous residence and occupancy are made conditions of the tenure, and being complied with, constitute, with the CertificateofManuscript image of Record and Deposit from the local Magistrate, the foundation of a perfect Title till the Official survey is made.
7. This necessary distinction in the conditions of surveyed and unsurveyed land, has been overlooked by the Chief Commissioner of Lands and Works; who moreover appears to have entirely misunderstood the object of the 7th section of the Pre-emption Act, which is intended to enable settlers on the same condition of residence and by payment of a deposit of 5/s per acre, to acquire larger tracts of unsurveyed land than 160 acres, the deposit in such cases being regarded as a proper security against speculation and a proof that the land is wanted for actual settlement.
8. I find that in consequenceofManuscript image of that misunderstanding, the Commissioner of Lands and Works has sold several tracts of unsurveyed land at the upset price without stipulations as to residence and improvement, and has issued to the purchaser a document termed a "Certificate of Title", which is really however nothing better than so much waste paper, and has thereby placed the Government in the false position of having made sales of land which cannot be identified, nor without residence can the purchaser be protected in his proper rights.
9. I lost no time in taking measures to put an end to a system so fraught with evil,whichManuscript image which would have plunged the affairs of the Land Department into a state of irretrievable confusion, and led to endless conflicts about the ownership of land.
10. A copy of my instructions on this subject to the Commissioner of Lands and Works and also to the District Magistrates is herewith transmitted for Your Grace's information, and I shall see that those instructions are fully understood and strictly carried into effect in the course of my progress through the Colony.
I have the honor to be
My Lord Duke,
Your Grace's most obedient
humble Servant
James Douglas
Minutes by CO staff
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Mr Elliot
Land Bd I presume?
ABd 30 July
Refer to Land Board.
TFE 30 July
Documents enclosed with the main document (not transcribed)
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Charles Good, Acting Private Secretary, to Chief Commissioner of Lands and Works, 27 May 1861, clarifying the rules with regard to pre-emption and the general conveyance of crown lands.
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Circular, Good to District Magistrates, 27 May 1861, providing information on land regulations as noted above, including examples of forms to be used in recording land sales.
Other documents included in the file
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Draft, Elliot to Emigration Commissioners, 12 August 1861, forwarding copy of the despatch and enclosures for observations and suggestions.