No. 50
8 August 1861
I have the honor to forward to you herewith correspondence and Documents, as described in an accompanying Schedule, in connection with a recent application made on behalf of this Government to the Supreme Court of Civil Justice of Vancouver's Island, for an injunction to restrain the HudsonsBayManuscript image Bay Company from further dealing with the land claimed by them under a possessory title prior to the Charter of Grant.
2. The Documents very clearly exhibit the nature of the case but it may be desirable that I should glance at the different heads and explain the reasons which induced the application to the Local Court.
3. As your Grace is aware from previous correspondence the Hudsons Bay Company claim certain sections of land in Vancouver's Island, amounting in the whole to about 3084 Acres, as being their privatepropertyManuscript image property by occupation prior to the grant to them of the Island under the Charter of the 13th January 1849. Her Majesty's Government reject this claim, and do not recognize any title to land in Vancouver's Island other than that conveyed under the Charter. The case has been referred to the Judicial Committee of the Privy Council for decision.
4. On the 27th April last the Surveyor General addressed me a letter representing that notwithstanding [that] the claim of the Hudson's Bay Company to the land in question was admittedly in dispute, the Company were still dealing with the landManuscript image in all respects as if it were indisputably their private property; and not only so, but that they were carrying these dealings to such an extent as to involve a breach of faith both towards former purchasers for value, and the Public, as well as towards the Government, inasmuch as the map under which they had originally laid out and sold the Town Site and which had become the Official Map of the Town, having been accepted and registered in the Land Office, was disregarded by the Company, portions of land laid off on that Map as Streets and Public Reserves, and even aportionManuscript image portion of the Government Reserve upon which stand the Government Offices, having been recently sold by private Contract; and further that the Company were daily disposing by private contract of the different unsold portions of the beforementioned land.
5. I forwarded the Surveyor Generals Letter for the opinion of the Attorney General. That functionary reported that if the case were as represented, the necessary steps could at once be taken towards putting a stop to such proceedings.
6. Upon consultation with the Attorney General, and understandingtheManuscript image the caution conveyed to me in Your Graces Despatch No 1 of the 2nd Jan. 1860, respecting the non-recognition by Her Majesty's Government of the claim made by the Company as intended to point out my course of action, did circumstances require it; and considering that these circumstances did require from this Government some interference to protect the best interests of the Colony, and to maintain the credit of the Government, by preventing the further private alienation of land, some of which was actually required by the Colony, and all of which was of exceeding value to the Colony, and by protecting the PublicinManuscript image in what they understood was guaranteed to them upon the faith of the Government, the Town having been laid out and the Reserves made prior to the expiry of the Charter of Grant, and when the control of all land was exercised by the Company, and they were viewed by the general Public as identical with the Government, I caused a letter to be addressed to the Attorney General authorizing him to take such proceedings as the case I put before him might seem to call for and justify.
7. The Attorney General accordingly filed an informationprayingManuscript image praying for an injunction as before stated. The information was supported by full and complete affidavits. No evidence was filed on behalf of the Hudsons Bay Company. The Court however held that it could not grant the injunction sought upon the ground that the subject matter of the suit was in litigation in another and Superior Court, and that any action of the Court here might be construed into an attempt to forestal the action of the Court above.
8. I have therefore to report these circumstances to Your Grace, and to forward to youallManuscript image all the Documents in connection therewith, in order that, should Your Grace think fit, the same may be laid before the Judicial Committee of the Privy Council.
9. It will be perceived that by the action of this Government no interference was attempted with any portion of the land forming the actual sites of the Company's Establishments at Victoria. To this it was considered the Company could probably obtain a good title upon payment of the fixed price of £1 per Acre, Her Majesty's Government having declinedtoManuscript image to purchase such Establishments upon the expiry of the Grant. The injunction was intended only to apply to the other portions of the 3084 Acres, to which no such equitable and consistent claim could be advanced.
10. I trust that what has been done herein may be in accordance with the views of Your Grace under the circumstances detailed, and requesting instructions as to any further steps which it may be considered advisable to take.
I have the honor to be
My Lord Duke,
Your Grace's most obedient
and humble Servant
James Douglas
Minutes by CO staff
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Sir F. Rogers
Land Board.
ABd 1 Oct
FR 2/10
Documents enclosed with the main document (not transcribed)
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Schedule of enclosures transmitted with the despatch.
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Surveyor General J.D. Pemberton to Douglas, 27 April 1861, asking to be empowered to apply for an injunction to stop further sales of town land by the Hudson's Bay Company.
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Acting Attorney General George Hunter Cary to Acting Colonial Secretary W.A.G. Young, 27 April 1861, advising that the application could at once be complied with, provided the title to the lands in question was indeed "at issue in the Privy Council."
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Young to J. Despard Pemberton, 30 April 1861, inquiring whether he had taken steps in 1858 to reserve land containing the source of Victoria's water supply, the springs having recently been sold by the Hudson's Bay Company to a private individual.
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Pemberton to Young, 2 May 1861, stating that he had reserved the springs as instructed, and further complaining of the company's disregard for reserved lands.
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Series of sketch maps showing disputed lots in the vicinity of James Bay, no dates.
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Three copies of the official map of Victoria, 1861, by J.D. Pemberton, one of which bears the notation "Colored to correspond with District Map. See note written upon it."
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Statement signed by Chief Justice David Cameron, 31 July 1861, certifying that the annexed documents are true copies.
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Copies of information, affidavits and judgment relative to the injunction, pp. 322-387 on microfilm, as follows: Folio 1 Information; 17 Subpoena; 21 Affidavit of W.A.G. Young and exhibits therein referred to; 45 Affidavit of W.A.G. Young and exhibits therein referred to; 65 Affidavit of J.D. Pemberton and exhibits therein referred to; 93 Affidavit of B.W. Pearse and exhibits therein referred to; 97 Affidavit of H. Tiedemann and exhibits therein referred to; 101 Affidavit of J.J. Cochrane and exhibits therein referred to; 117 Judgment of Chief Justice David Cameron.
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Three drafts of indentures made between the Hudson's Bay Company and the Fur Trade Reserve, no dates, including three maps (five pages).
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Young to Cary, 9 May 1861, enclosing documents to verify that title to the land was in dispute and requesting that he proceed with the injunction (six pages).
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Pemberton to Cary, 9 May 1861, giving examples of the company's activities in respect to lands of disputed title.
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Cary to Young, 25 June 1861, advising that the Chief Justice had decided "that he would not grant any injunction," and requesting that Douglas forward copies of the proceedings and related documents for the information of the Secretary of State.
Other documents included in the file
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Rogers to Emigration Commissioners, 5 October 1861, forwarding copy of the despatch and the enclosures in original for their observations.
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S. Walcott, Emigration Board, to Blackwood, 18 January 1862, as follows.
Documents enclosed with the main document (transcribed)
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Government Emigration Board
Park St, Westminister
18 Jany 1862
Dear Sir
Would you be kind enough to lend me the Papers relating to the Injunction Suit instituted in Vancouver's Island against the Hudson's Bay Company. They were sent home in the Governor's Despatch of the 8th August last, and reported on by me on the 18th of October last.
I remain, Dear Sir,
Yours faithfully
S. Walcott