No. 107
12th September 1865
Sir,
I have the honor to forward a letter addressed to you by Mr W.H. Newton, complaining of the injustice which he considers he has received from the GovernmentofManuscript image of this Colony and expressing a hope that you will be pleased to order an investigation of his case, with a view to compensation being awarded for the losses he alleges he has sustained.
2. As the transactions to which Mr Newton refers took place previous to my arrival in the Colony, I do not consider it necessary to trouble you with any lengthened statementofManuscript image of my own on the merits of this case. I will only refer you to the enclosed letter written by Sir J. Douglas on a former petition presented to Governor Seymour on his arrival in this Colony. I can however bear testimony from personal observation that the valuation placed upon the improvements by Sir James Douglas is far more correct than the one given in Mr Newton's letter.
3. The statement as totheManuscript image the Survey of the Indian Village in the summer of 1862, is I believe, perfectly true, but the then Commissioner of Lands and Works acted without Authority, and no one could have known better than Mr Newton the dissatisfaction expressed by the Indians at the paucity of the Reserve laid out, and upon their representing the facts to Sir James Douglas, Authority was immediately issued to theSurveyManuscript image Survey Department to increase the Reserve to the full extent claimed by the Indians. Delay may have occurred in carrying out these instructions but the decision arrived at by Sir James Douglas was well known at the time, consequently Mr Newton must have been aware that his tenure of the land was uncertain, and any improvements he might make would be subject to forfeiture.
4. UnderManuscript image
4. Under these circumstances Mr Newton, has, in my opinion, no claim to compensation other than was offered in my letter of the 19th May 1865.
5. It is somewhat ingenious of the writer of this Letter to appeal to your sympathy as a "struggling Colonist." Mr Newton is in the Hudson Bay Company's Service and until within the last few months was Chief Trader at Fort Langley, one of the Company's Posts.He isManuscript image He is now employed in the Head Establishment at Victoria and I cannot suppose he would leave so certain and permanent an employment for the vicissitudes of a Settler's life, and have always considered the land held by him in this Colony was merely for speculative purposes.
I have the honor to be,
Sir,
Your most obedient
humble Servant
Arthur N. Birch
Minutes by CO staff
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Mr Elliot
The letter from Sir Jas: Douglas to Govr Seymour (last enclosure) explains this case. Mr Newton appears to have obtained possession of the land thro' a mistake on the part of the Commissr of Lands & Works.
VJ 4 Nov
Answer accordingly by rejecting Newton's claim?
TFE 4/11
EC 5
Documents enclosed with the main document (not transcribed)
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W.H. Newton to Cardwell, 30 August 1865, claiming compensation for land both pre-empted and bought by him and subsequently incorporated in an Indian reserve.
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Sketch map showing the various boundaries referred to in the letter as noted above.
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R.C. Moody to Newton, 22 June 1863, advising that a survey party would depart for Katzie "in case you may wish to be present and shew the land claimed by you."
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Newton to W.A.G. Young, Colonial Secretary, 22 October 1863, advising that changes to the Indian reserve had taken virtually all his improved land, and claiming compensation.
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Young to Newton, 26 October 1863, denying compensation on the grounds "he took up land within the limits of the Kaitsay Indian Village which land was expressly reserved by the Pre-Emption Act from the occupation of Settlers."
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Newton to Young, 11 November 1863, explaining that his pre-emption and purchase was carried out after the boundaries of the reserve had been marked in 1863 and disputing that he should be made to suffer by subsequent alterations.
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Arthur Birch, Colonial Secretary, to Newton, 19 May 1864, advising that although Douglas was of opinion that he had no claim to the land, Seymour was prepared to pay compensation.
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Certificate written by C. Brew, 4 July 1862, confirming that Newton had paid £41.13.4 as a deposit on land pre-empted near Katzie.
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Newton to Brew, 23 September 1862, expressing a desire to pre-empt 160 acres of land and make a deposit on a further 400 acres east of Katzie Indian Reserve.
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Douglas to Seymour, 9 May 1864, explaining in detail why Newton was not entitled to the land, or to compensation for loss of it. Transcribed below.
Other documents included in the file
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Draft reply, Cardwell to Officer Administering the Government, No. 88, 11 November 1865.
Documents enclosed with the main document (transcribed)
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I have received your letter and now return the enclosures. Newton’s claim is familiar to me, and I have already decided on its merits; as you will see by referring to the correspondence on that subject.
As against the Indians he has no claim whatever, there can be no pretense for narrowing the very limitedManuscript imagelimited area (about 100 acres) assigned to them as a Reserve; the real question is between Newton and Her Majesty’s Government. This will be better understood by the following brief history of the case — The Katsy Village has been on Indian Settlement from time immemorial, and the Natives though occasionally absent, have never relinquished, or by any act of the contumacy forfeited their right to the land — All Indian settlements are expressly exempted from occupation by the Pre-emption Acts, and no Settler can legally enter upon land occupied or cultivated by Indians orManuscript imageor establish any legal claim thereto. The first Settler at Kaitsy was a Mr Manson, who it appears transferred his right to Newton. the former made no claim to the Village site, but Newton did consult me about occupying it, stating that it had been abandoned by the Indian Inhabitants; but knowing this to be a fallacy, I advised him not to occupy it, and told him most distinctly that the land was secured to the Indians and could not be alienated by the Government.
Newton cannot therefore plead ignorance as to the legal status of the land. Now comes the gist ofManuscript imageof the matter the Commissioner of Lands & Works was directed to mark out that and other Indian Reserves. It appears that through some mistake only 10 acres were included in the land laid out as Kaitsy Reserve; though it was notorious that the Indians occupied and claimed a larger area.
Newton taking advantage of that error notwithstanding the protests of the Indians, and without waiting to ascertain from the Commissioner of Lands & Works as to the fact of the remaining portion of the Reserve being open to Pre-emption immediately added it to his own claim Manuscript imageclaim — but on the complaint of the Indians the true line was, by my orders restored, and if Newton was a sufferer I think, under the circumstances he has nobody but himself to blame as he could not be ignorant of the risks he wilfully incurred by that unjustifiable proceeding.. It is clear that the Indians could not be legally deprived of their inheritance by the unauthorised act of the Commissioner of Lands & Works — the only question that remains is, if by the act of that office, liability was incurred on the part of the Government; and I should simply leave Newton to testManuscript imagetest that point, and to seek his remedy by appeal to the Law Court of the Colony — a course that will deter other attempts at imposition.
Let Trutch visit the Kaitsy Village and value Newtons improvements I am sure they will not amount to fifty dollars in all.
With best Wishes
&c Signed)
James Douglas
Birch, Arthur Nonus to Cardwell, Edward 12 September 1865, CO 60:22, no. 10729, 328. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/B65107.html.

Last modified: 2020-12-02 13:40:34 -0800 (Wed, 02 Dec 2020) (SVN revision: 5008)