Murdoch to Rogers (Permanent Under-Secretary)
27th August 1870
I have to acknowledge your letter of 11th inst with a despatch from the Governor of British Columbia enclosing 3 Ordinances passed by the Legislature of that Colony entitled:
No. 4 An Ordinance to facilitate the issue of Crown Grants.
No. 17 An Ordinance to assimilate the Law relating to the transfer of real Estate, and to provide for the registration of titles to land throughout the Colony of British Columbia, and
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No. 18 An Ordinance to amend and consolidate the Laws affecting Crown Lands in B. Columbia.
2. These Ordinances are accompanied by reports from the Colonial Attorney General and other voluminous documents. They form as the Attorney General states in his report of 11th May, a complete code for "the clearing, acquisition and registration of title to real Estate in the Colony" and have become necessary in consequence of the variety, irregularity and confusedness of the modes in which claims to land have heretofore been created in Vancouver Island and on the mainland. In a great many cases it is said, not onlyManuscript image were the Titles in their origin irregular and insufficient, but they had subsequently been transferred in an equally irregular & insufficient manner through various hands, till it was almost impossible to ascertain who were the rightful owners, or what the nature of the Title under which land was held. It is to bring order out of this confusion and to prevent its recurrence hereafter that these ordinances have been passed.
3. The first Ordinance is intended to clear up all questions relating to past titles. With this view it authorizes the Commissioner of Lands, if he thinks fit, and directs him if required by anManuscript image applicant, to refer doubtful claims to the Registrar General of Titles, who is to examine the claims, and where he is satisfied that they are reasonable, and where the claimants have not purchased directly from the Crown, is to notify in the Government Gazette his intention to recommend the issue of Crown Grants. If no objection is made within the time (not less than three months) specified in the notices the grants are to issue—but if an objection be made, or the Registrar be not satisfied of the claimants title, he may refer the case to the Supreme Court, which may eitherManuscript image decide summarily both Law and facts, or, if required, may submit the facts to a Jury. Provision is made for the summoning of witnesses and compelling their attendance, for the reservation of any equities attaching to or affecting the Land—for the indemnification of Government Officers and for other purposes necessary to carry the Act into operation. The Act which refers to past transactions only, and is to a great extent permissive, appears unobjectionable, and I would recommend that it should be left to its operation.
4. The Ordinance No 17 for the registration of Titles is aManuscript image reenactment with some additions of the Vancouver Island Act of 1860 & 1865 for the same purpose—which Acts are said to have been founded on the Report of the Royal Commission of May 1857 on the registration of Title and the sale and transfer of land. The Attorney General in an elaborate report explains the provisions of the Ordinance—the general principle of which is, he says, a registration of title, as opposed to registration of assurances. He describes the satisfactory manner in which the Law has worked during the last 10 years in Vancouver Island and the objections to, & inconveniences of, the B. Columbia system, and theManuscript image other alternative systems which might be proposed, including the Imperial Act of 1862 and the South Australian Act of 1860. A petition against the Ordinance was presented to the Legislative Council but without effect, the second reading of the Bill and the report of the Committee being carried unanimously. A more detailed protest from the legal advisers of the Banks of British North America and British Columbia was subsequently presented to the Governor with a request that he would forward it to the Secretary of State. The Attorney General combats the statements in the petition and protest at great length and shows,Manuscript image as it appears to me that the objections urged against the ordinance are unfounded or unimportant—and that the measure itself is well calculated to effect the object in view. But in saying this it is I hope superfluous to add that I do not presume to offer an opinion on a question so purely technical, which has been the subject of so much discussion & such diversity of views among the highest legal authorities in this Country for many years, and has been so often under the consideration of Parliament, without as yet leading to any very satisfactory result. The Ordinance went into operationManuscript image immediately it received the assent of the Governor.
5. The above Ordinances having provided a means by which titles may be assured, Ordinance No 18 deals with the manner in which they may be created. It begins by a repeal of a number of Ordinances of B. Columbia extending from Febry 1859 to March 1869, and of a Proclamation of the Governor of Vancouver Island of 6 Septr 1862. The greater part of the Ordinance relates to preemption. It provides that any British Subject of the age of 18 or upwards and any Chartered Company with the special permission of the Governor, may acquire a right to preempt any unoccupied Crown Lands—notManuscript image being an Indian Settlement—to an extent not exceeding 320 Acres. Application to enter upon the land must be made to the Commissioner of Crown Lands accompanied by a plan, and after permission is obtained the Preemptor must enter on the land within 30 days, mark the boundaries, and apply to have his claim recorded—which record the Commissioner is to make and give a certificate of it on payment of a fee of $2. Preempted lots are to be of a rectangular shape, the shortest line two thirds of the longest, running as nearly as possible to the cardinal points of the compass, except where there are natural boundariesManuscript image or public highways which offer better lines. Lands already preempted may—if the Commissioner of Lands thinks necessary—be surveyed, and their boundaries rectified. On a preemptor proving that he has been in continuous personal occupation of his land since the date of his record, and that he has made permanent improvements to the extent of $2.50 an Acre, he is to be entitled to a Certificate of improvement—after which the preemption right becomes transferable, subject to the provisions of the Ordinance as to occupation, forfeiture and payment of purchase money, in the manner prescribed by the Ordinance. If a preemptorManuscript image permanently ceases to occupy his claim the Commissioner may cancel the claim summarily in which case all deposits paid and all improvements made are forfeited to the Crown, and the land reopened to preemption. Personal occupation, however, is not required beyond four years, and every preemptor is entitled to two months leave of absence each year, and may obtain from the Commissioner a special leave not exceeding two months additional. He may also, on cause shown, obtain permission to place a substitute on the land for any period not exceeding 6 months. NoManuscript image person can hold more than one claim by preemption, and any person preempting a second claim forfeits his first with all improvements &c. When the Government survey comes up to preempted land, the preemptor, on showing continuous occupation and producing a certificate of improvement, is entitled to purchase at a price not exceeding $1 an Acre, payable in four equal annual instalments subject to forfeiture if the instalments are not duly paid. Notices of an application for a Crown Grant must be posted in a conspicuous place on the preemption claim for 60 daysManuscript image before issue of the Grant, but upon payment of the whole of the purchase money & production of a certificate of the posting of the notices without any objection being brought forward, a Crown Grant is to issue, reserving however certain rights to the Crown. In case of the death of a preemptor his heirs, if resident in the Colony, are to be entitled to a Crown grant on payment of the purchase money—but if his heirs are absent from the Colony the Commissioner is to make such arrangements for them as he deems just. Preemptors to the North and East of the CascadeManuscript image Range may make up deficient claims to 320 Acres.
6. Leases of unoccupied land may be granted to preemptors or purchasers of neighbouring land on condition that it be adequately stocked within six months, but subject to resumption for sale, preemption or reserve for public purposes. Subject to the same liability, leases of haylands not exceeding 500 Acres may be granted to any preemptor or purchaser, and leases of any extent may be granted for cutting timber, subject to such rent &c as may be fixed by the Governor in Council.
Preemptors may divertManuscript image and utilize any water adjacent to or passing through their land on obtaining the authority of the Commissioner and paying $2 for a record of the arrangement—but if the parties affected thereby refuse to consent, previous notice must be given of the intention to use such water, & compensation, to be fixed in case of dispute either by the Commissioner or by a Jury of 5, is to be paid to any person, whose land is thereby wasted or damaged. Water may also be taken for mining purposes on payment of reasonable compensation. Transfers of preemption rights are to carry with them theManuscript image accruing water privileges, but every owner of a water privilege is bound to be reasonably careful of it, and in case of unreasonable waste is liable to have the privilege forfeited by the Commissioner.
7. Preemptors may bring actions of ejectment in the same manner as if seized of the Fee, and such actions may be decided summarily by the Stipendiary Magistrate or, if required, by a jury of 5 to be summoned by the Magistrate. Appeals from the decision of a Magistrate or of the Commissioner may be brought to the Supreme Court on points of Law, the appellant giving dueManuscript image security for the prosecution of the appeal.
8. Surveyed land, other than town, suburban and mineral land, is to be sold by public auction at an upset price of $1 an Acre—but land put up and not sold may be disposed of by private contract. Such sales are subject to public rights of way and to private rights of way and water there existing, and also to the right of the Crown to take Stone, gravel &c for the public roads—but unless otherwise specially announced, the conveyance is to include all timber & mineralsManuscript image except the precious metals.
9. The right of free miners to search for minerals—and of the Governor in Council to make free grants for the encouragment of immigration or for public purposes is reserved.
10. It will be seen from the above recapitulation that the Ordinance is in fact little more than a Law for regulating the system of Preemption. That system was established in Vancouver Island in 1860, on the model of the similar system existing in the neighbouring States of the Union—and was shortly afterwardsManuscript image extended to B. Columbia. Its advantages and disadvantages have been repeatedly under discussion, but successive Governors of B Columbia have been unanimous in considering that it was indispensable to the progress of the Colony, and that to insist on the system universal in other British Colonies, of requiring survey to precede sale, would drive away existing Settlers and prevent the influx of others. Upon this point I would beg to refer to the despatch of the Governor of B. Columbia of 22nd August 1868, No 106, and the report on it from this BoardManuscript image of 31st of Octr following.
11. Assuming that the preemptive system is not to be interfered with, the present ordinance is, I think, open to no objection. It is in fact an improvement on the existing Law, inasmuch as it settles the doubt, previously existing on the mainland, as to the necessity of personal occupation of preempted Land. The Ordinance is passed with a suspending Clause, and it will therefore be necessary,Manuscript image if Lord Kimberley approves it, that it should receive Her Majestys special confirmation in the usual form.
I have the honor to be
Your obedient
Humble Servant
T.W.C. Murdoch
Minutes by CO staff
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CC 29/8
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I think these three Ordinances may be Sanctioned. The report of Sir C Murdoch shews very clearly & briefly the general effect of them. The Attorney General disposes satisfactorily of the objections raised by the Banks to sec. 33 of No. 17. That section is nearly identical with a clause in the Imperial Act; and the exclusion of Equitable Deposits is in accordance with the recommendation of the Royal Crs & has been found to work well in Torrens Land Act, as well as in Vancouvers Island.
I observe that no provision is made for compensation to parties wrongfully deprived of land from Erroneous registration or otherwise. The Attorney General in page 10 of his second Report upon the Ordinance speaks of Govt compensation as "palpably impossible in this Colony." It has not been found to be so in Trinidad, where by the recent ordinance (No 14 of 1870)
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provision is made for an "Assurance Fund" by charging a percentage in the pound for assurance of Title (sec. 26). This FundManuscript image is then (see sects 116-123) made liable in certain cases.
There may however be local reasons in B Columbia which would make this plan unworkable.
In sanctioning the Ordinances state that Ld K will watch the working of them with interest & will be glad to receive a report from the Govr when sufficient time has elapsed to Enable him to judge of their operation.
HTH 30/8
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Sanction but draw attention to the Trinidad precedent, & say that unless there are reasons of which I am not aware peculiar to B. Columbia, I am of opinion that the Act should be amended by the introduction of the same or similar, provisions for compensation.
K Aug 31/70
Other documents included in the file
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Draft reply, Kimberley to Musgrave, No. 18, 5 September 1870.