Berens to Newcastle
Hudsons Bay House
London
3 November 1862
I have the honor to acknowledge the receipt of Mr Under Secretary Elliot's letter of the 18th ultimo accompanied by a copy of a despatch received by your Grace from the Governor of Vancouvers Island under date the 30th July last having reference to the arrangement entered into between this Company and Her Majesty for settling the claims of the Company to certain lands in Vancouvers Island.
I beg to assure your GracethatManuscript image that this Company has been most desirous to carry out the terms of that arrangement and immediately after those terms had been settled instructions were forwarded to the Company's Representative at Victoria to take the necessary steps for the fulfilment of the Agreement, and they have every reason to believe that the Company's Officers at Victoria have used their best endeavours to give effect to these instructions but there appears to have been a want of assistance in making the necessary surveys and plans of the property.
From the correspondence which has passed between the Company's Agent and the Colonial Secretary at VictoriaIManuscript image I have every reason to hope that the matters unsettled between them are not of any material importance but positive instructions shall at once be forwarded to arrange the selection of the 50 Acres reserved to the Company.
It appears that under date the 15th July 1862 Mr W.A. Young forwarded to the Company's Agent sketched Maps of the property he proposed to have conveyed to the Crown which consisted of 1. Ground for the site of a Harbour Masters Office and entrance to a Public Wharf. 2. Barracks and Post Office Lot. 3.Manuscript image 3. School Reserve, Church Reserve and Cemetery, Parsonage, Public Park. 4. Government Reserve across James' Bay.
I have the honour to transmit herewith to your Grace, in case you should not already have been furnished with them, a copy of the Answer returned by the Company's Agent to this communication from the Colonial Secretary and of the reply of the latter.
From these communications your Grace will observe that the matter which was more immediately the subject of the Governor's complaint, has reference totheManuscript image the site for the Harbour Master's office, the Company's representatives having proposed to allot the required water frontage at the end of a Street called Broughton Street instead of, as provided by the Agreement, at the foot of Fort Street.
It appears from the communications raised from the Company's Agent that the frontage at the foot of Fort Street has been long since covered with buildings occupied by the Company for the purposes of their trade, and it seems clear therefore that when the arrangement was come to through the medium of Mr Dallas, then in this Country, he never could have intended to have appropriatedforManuscript image for the use of the Harbour Master ground already covered with Buildings and in actual use, and on reference to the Deed of Arrangement your Grace will observe that the reservation is save and except therefrom the unsold portion of the water frontage reserved for the use of the Harbour Master being Lot [blank] in the said last mentioned place and situate at the foot of Fort Street in the Town of Victoria and measuring about 50 feet in width.
It is clear therefore that this exception had reference to a frontage understood to be then reserved for the use of the Harbour Master but not distinguished upon the place by anynumberManuscript image number, but which Mr Dallas from recollection supposed to be at the foot of Fort Street.
I have the honor to send herewith a small plan shewing the position of Fort Street and of Broughton Street from which your Grace will perceive that such a mistake was not unlikely to occur, but upon this point I would take leave to refer you to a correspondence which passed in the last year on this very subject.
Under date the 23rd May 1861 your Grace forwarded to me copy of a communication from Governor Douglas in which he complained thattheManuscript image the Company were about to sell a portion of this water frontage which he considered would be required for the Office of the Harbour Master stating that the Company's representative had proposed to build for the Harbour Master an Office on part of the land then unsold, and to lease it to the Crown at a rent, but this being objected to, I at once, in accordance with the desire expressed by your Grace, sent out orders to the Company's Agents not to dispose of any of the land referred to.
It is clear therefore that it was a part of this land upon which the Governor then suggested that the Harbour Master's Office should be built,andManuscript image and that, as he distinctly referred to the land which the Company were about to sell, he could not have intended the land at the foot of Fort Street upon which the Company's own Buildings were then standing.
I respectfully submit therefore to your Grace that the arrangement with the Crown will be fairly carried out if 50 feet of the foreshore about the end of Broughton Street are reserved for that purpose.
At the same time I admit that the letter of the Agreement is that the land should be at the foot of Fort Street, and if a literal execution oftheManuscript image the Contract is insisted upon the ground must be given up to the Crown at whatever cost or inconvenience to the Company, but in that case the Crown would of course either pay for the buildings now erected upon it or the Company would be entitled to remove them, but, as upon the explanation I have now given, I think your Grace will see that the agreement will be substantially and fairly fulfilled by the cession of the frontage in the manner proposed by the Company's Agent. I trust that his plan will be accepted.
The other points of discussion between the Company's Agent and the Colonial Secretary are I believe ofveryManuscript image very minor importance and I will at once give instructions that they should be disposed of in an amicable and liberal spirit.
If your Grace has not been furnished with the plans forwarded by the Companys Agent to Mr Young we are in possession of copies of them which I shall be happy to furnish to your Grace.
These have not been sent here.
I will only add that as the Crown is now entitled to receive from this Company a reconveyance of the whole Island excepting such parts as have been disposed of or as are, under the arrangement with this Company, to be retained by them, the better course wouldnowManuscript image now be that this Company should execute to the Crown a Re-conveyance of all that belong [to] it. For the purposes of such Re-conveyance it will undoubtedly be desirable that we should be furnished with a correct plan of the whole Island with an indication upon it of the parts that are not to be conveyed to the Crown, and we have given very pressing instructions to our Agents to forward such a plan, and your Grace will probably think it right to give directions to the same effect. The Re-conveyance can then be prepared and executed in this Country and the whole matter will be thus disposed of.
I have the honor to be,
My Lord Duke,
Your Grace's very obedient
Servant,
H.H. Berens
Governor
Minutes by CO staff
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Sir F. Rogers
I presume that this letter should be referred to the L. & E. Commissrs?
VJ 5 Novr
At once.
FR 5/11
Documents enclosed with the main document (not transcribed)
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Dugald Mactavish, Company Agent, to W.A.G. Young, Colonial Secretary, 29 July 1862, enclosing sketch maps highlighting the various pieces of land to be conveyed to the Crown.
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Young to Mactavish, 1 August 1862, pointing out a discrepancy with regard to land set aside for the Harbour Masters Office, and asking that the alteration be explained.
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Sketch map showing the disputed area, with the pertinent lots at the base of Fort Street and Broughton Street highlighted.
Berens, Henry Hulse to Pelham-Clinton, Henry Pelham Fiennes 3 November 1862, CO 305:19, no. 10823, 506. 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/V625MI14.html.

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