Walcott to Elliot (Assistant Under-Secretary)
Emigration Office
18 October 1861
I have to acknowledge your letter of 5th instant with the Copy of a despatch from the Governor of Van Couvers Island enclosing a correspondence and an official copy of proceedings in the Supreme Court of Civil Justice in the Colony relative to an ex-officio information filed by the Attorney General for an injunction to restrain the Hudsons Bay Co from selling any portion of a certainManuscript image Reserve in Victoria of 3084 Acres claimed by them under their alleged possessory Title prior to their Charter of grant of 13 Jan[ua]ry 1849.
2. This claim of the Company has not been recognized by the Government, and the question of Title has, I understand, been referred for the decision of the Judicial Committee of the Privy Council. Nevertheless pending this reference the Company, it appears, have been dealing with the lands in question in such a manner and to such an extent as to amount, as the Governor observes, to a breach of faith both towardsManuscript image former purchasers and the public as well as towards the Government. In this state of things Mr Douglas felt it right to consult the Attorney General, who thinking that there was a sufficient case for the purpose, filed an ex-officio information for a special injunction against the Company as a preliminary step. But although the application was properly supported by the necessary Affidavits, which the Company did not seek to controvert by any evidence on their part, the Judge declined to grant the injunction at that stage of the cause. The CompanyManuscript image denied by their Counsel the validity of the Reserves as against them, and justified their Acts under colour of the legal Estate with which they are still clothed by the Charter of Grant of the whole Island.
3. The decision of the Court, however, appears to have proceeded not in any respect on the merits of the case but simply on the ground that the subject matter of the suit was in litigation in a Superior Court (the Judicial Committee of the Privy Council) and that to grant the motion at that time might be construed into an attempt toManuscript image forestall the action of the Court above.
4. This result was evidently quite unexpected by the Attorney General, who states that from the peculiar views held by the Chief Justice he does not believe that any fresh application, whatever be the merits, would be successful.
5. Under these circumstances, it becomes necessary to consider what steps should be adopted in this matter to arrest any further sales of the lands in dispute. The first step which occur[s] to me is to endeavour to obtain a speedy decision of the Judicial Committee but as sometime may elapse before this can be procuredManuscript image I would suggest that a communication be at once made to the Company with a view to ascertain whether they would not immediately send out instructions to their Officers to desist from any further dealings with the lands in dispute until the question of title is decided.
6. But not entirely to tie up sales, which possibly it may be expedient in a public point of view to effect, it might be proposed that with the previous assent in writing of the Governor any particular portions of the land might be sold that the Company's local officers might thinkManuscript image it advantageous to dispose of—the purchase money being held as a stake to abide the decision on the question of Title. Should the Company, which I can hardly anticipate, decline or delay giving a reply to this reasonable proposal, it would probably be deemed expedient by the Duke of Newcastle that the matter should be submitted, as requested by the Colonial Attorney General, to the Law Officers of the Crown to advise whether any & what steps can be taken either in the Courts here or in the Courts of the Colony to arrest the proceedings of the Company. If nothing can be done in either ofManuscript image these directions the only other course that seems open would be to instruct the Governor to issue a public notice that the Title to the Lands in question is in dispute—that suits are pending both in the Imperial and Colonial Courts of Law—and that all purchases from the Company would be made at the risk of the purchasers, as if the decision should be in favor of the Crown, the sales would not be recognized but the Lands would be resumed and dealt with as Crown property.
7. The Lis pendens which the Colonial Attorney General has veryManuscript image properly registered against the unsold portion of the 3084 Acres in dispute, is legally, it is true, notice to purchasers that if they purchase they must take the Lands subject to all the legal and equitable consequences attaching to them—and this will doubtless deter all those who may be aware of it from buying of the Compy. But the proposed Government Notice, as more generally known, would operate probably more widely & effectually in securing the object in view.
I have etc.
S. Walcott
Minutes by CO staff
Manuscript image
ABd 21 Oct
Sir F. Rogers
So far as I can attempt to form an opinion on such a matter, the letter to the Company which is suggested by Mr Walcott would be probably judicious and might be at once adopted.
If the Company should prove intractable the application to the Law Officers to know what legal hindrance could be opposed either in the Colony or at home totheirManuscript image their proceedings, would I should fear prove unfruitful, because in the Colony the sweeping principle already pronounced by the Judge in favor of the Company would seem to preclude any hope of his controlling their proceedings, whilst to call in the intervention of an English Court in a Colonial cause, except by way of appeal, would appear to be, I should apprehend, a novel and questionable course.
There would remain however the proposed notice to purchasers, which could probably be an effectual remedy.
TFE 21 Oct
And it mt perhaps be well to point out to the H.B.C. how much the difficulty of coming to any amicable arrangement in these matters is increased if their agents in the Colony are directed or encouraged or allowed, pending the reference of the matter to the Judicial Committee, or indeed under any circumstances, to resort to such proceedings as those of sellingManuscript image privately to individuals lands reserved for the Public Park or other public purposes and the springs
Vide especially enclosure No 6 to 8771, wh is Mr Pemberton's letter of 9th May 1861.
from wh the Colonists are supplied with water or cutting down and selling for firewood ornamental trees in the Town of Victoria.
FR 22/10
Write to H.B.C. as proposed, and prepare notice to Purchasers.
N 25
Other documents included in the file
Manuscript image
Elliot to H.H. Berens, Hudson's Bay Company, 5 November 1861, commenting at length on the actions of the company in Vancouver Island, and requesting that their agents be instructed to refrain from "any further dealings with the land in dispute until the question of title is settled."
Minutes by CO staff
Manuscript image
? I am not sure if it is intended that the Proceedings in the Court
(which are very bulky) should be sent to the Company. They do not affect the question as the Co did not offer any evidence & the judgment did not depend on the merits of the case. I have also omitted the correspondence with the Attorney General?
Quite right.
TFE 30/10
Walcott, Stephen to Elliot, Thomas Frederick 18 October 1861, CO 305:18, no. 9296, 215. 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/V615LN14.html.

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