No. 10
2nd February 1865
1. I have deferred replying to your Predecessor's Despatch No 5, 16th March 1864 in the hope that the local Legislature would accept the administration of Crown Lands and thus enable me to adjust this and other complicated questions connected therewith, without troubling you with their details.
2. My Despatch No 102 dated 5thDecemberManuscript image December 1864 will show that this hope has been for the present disappointed.
3. I may state at once that I have not complied with the instruction conveyed in the concluding paragraph of the Despatch under reply, namely, "to give Mr Lowenberg a valid title to the land in question," for the simple reason that I have no such power till the reconveyance of the public lands by the Hudson's Bay Company to the Crown has been completed, and this hasnotManuscript image not been yet done, and may I fear in the present temper of the Legislative Assembly be indefinitely delayed. In the mean time Mr Lowenberg suffers no serious inconvenience, inasmuch as he has fenced in the disputed lot known as letter Z, and exercises the rights of ownership over it, which I have not in any way disputed.
4. The receipt of the Despatch under reply necessarily caused me to make myself acquainted with the details of this disputeandManuscript image and I am of opinion that had the circumstances as they present themselves to my mind been fully known to the Hudsons Bay Company they would not have sanctioned the action of their agent in the sale of this Lot.
5. You will gather from the accompanying papers
Memorandum of Governor Kennedy, 6th July 1864.
Queries of Governor Kennedy and replies of the Surveyor General, 17th June 1864.
Attorney General, 13th July 1864.
Acting Surveyor General, 1st February 1865.
and others to which reference is made that a piece of land containing ten acres (Lot 24, Section 18) was surveyed in 1854 and set aside as a Government Reserve by thethenManuscript image then Governor who had full powers from the Hudson's Bay Company to do so. This lot was, in consequence of the sale by mistake of a part of the ten acres, resurveyed by the same Surveyor General in 1858, and the same quantity, ten acres, included though differing in shape.
6. It is on record that both these surveys were reported to the Hudson's Bay Company, and the quantity contained in the Reserve stated as 10 acres. The Surveyor General states (and I think quitecorrectlyManuscript image correctly) that the right of the Hudson's Bay Company over this Reserve ceased when it was finally surveyed and dedicated as a Reserve in 1858.
7. It is admitted by Mr Mactavish in a letter dated 21st January 1863 that the lot "Government Buildings" contained 10 acres. (See Blue Book page 59).
8. On the faith of this survey admitted by the Hudson's Bay Company, and approved by their then Agent (Mr Douglas), theGovernmentManuscript image Government Buildings comprising five separate edifices, namely main offices, Treasury, Land Office, House of Assembly, and Court House, were erected at a cost of about £8000 bounded by the water to the front and by a public street in the rear.
9. In the spring of 1861 the Agent of the Hudson's Bay Company (between whom and the Governor I am informed a very unfriendly feeling existed) laid off and sold the portion of the 10 acre Reserve, marked Z on the accom-panyingManuscript image panying sketch, thus cutting off all ingress or egress to the rear of the public buildings and rendering them comparatively valueless. The Government Reserve of 10 acres being unfenced the Surveyor General had no knowledge of this transaction till January 1862.
10. The accompanying papers named in the margin will further elucidate the matter.
11. I would state in conclusion that the abstraction of the piece of land marked letter Z from the Reserve renders the publicbuildingsManuscript image buildings and the ground on which they stand comparatively valueless and ought to be acquired by the Crown by purchase or other means if the sale to Mr Lowenberg is held valid.
12. It is alleged by the Attorney General (in his letter 13th July 1864) that Mr Lowenberg knew his title was questionable, and that an unusual covenant for good title was therefore contained in the deed of sale.
13. The sale of this piece of land (lot Z) is regarded by the publicgenerallyManuscript image generally with great indignation and by the Legislative Assembly as unwarrantable (Vide Resolutions 27th June 1864 herewith, No 15).
14. It is an unworthy and will continue to be a bitter cause of quarrel between a great Company and the local Government and could I think be readily adjusted and a great deal of bitterness allayed by its transfer to the local Government on paying the original amount of purchase money if the Company desire it; but on whatever terms itoughtManuscript image ought in my humble opinion as a matter of honor and equity to be relinquished by the Hudson's Bay Company.
15. I could enlarge upon this subject considerably but I think I have stated enough to enable you to form an opinion on the merits of the case.
16. This question I may state stands by itself and may be adjusted without reference to other causes of difference.
17. I may add that in a conversation with the resident Chief FactorofManuscript image of the Hudson's Bay Company I many months ago suggested this mode of adjusting a question which was a cause of bitter contention both in and out of the Legislative Assembly.
I have the honor to be
Your most obedient Servant
A.E. Kennedy
Minutes by CO staff
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Mr Elliot
Land Board.
ABd 18-3
TFE 18 March
N.B. This dph enclosed inter alia a Colonial pamphlet inclg Despatches & Correspondence transmitted to the H. of Assembly in Gov Ds message of 3:Sept:1863:
Other documents included in the file
Documents enclosed with the main document (not transcribed)
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Memo, signed by Kennedy, 6 July 1864, asking that Despatch No. 5 of 16 March 1864 and other relevant material be sent to the Attorney General for observations and suggestions. The memo and enclosures (list attached) were forwarded to the Attorney General by Henry Wakeford, Acting Colonial Secretary, on 6 July 1864.
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List of queries forwarded from Kennedy to J.D. Pemberton, Surveyor General, and his replies thereto, all concerning the dispute relating to the government reserve, signed by both men, 17 June 1864.
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Memo, signed by Kennedy, no date, stating that he had documentary evidence proving that Douglas held power of Attorney from the Hudson's Bay Company until the spring of 1859 at which time it was transferred to George Dallas.
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Pemberton to A. Barclay, Hudson's Bay Company, 1 September 1854, advising that "in the transfer to the Fur trade of Lot No 24, Section XVIII a Reserve of 10 acres for the Indians should have been left as marked on the enclosed tracing" (not on microfilm).
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George Hunter Cary, Attorney General, to Acting Colonial Secretary, 13 July 1864, providing a full history of the government reserve and the dispute relating to Lot Z (eight pages).
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Explanation of two tracings (not on microfilm) describing the disposition of land currently in dispute, signed by B.W. Pearse, Acting Surveyor General, 1 February 1865.
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"Despatches and Correspondence Transmitted to the House of Assembly in Governor Douglas' Message of 3rd September 1863" (34 pages).
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House of Assembly to Kennedy, 29 June 1864, forwarding a copy of resolutions passed after consideration of the "Report of the Committee upon the Crown Lands of the Colony," signed by J.S. Helmcken, Speaker.
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Exact copies of the first six entries as noted above.
Minutes by CO staff
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Origl enclosures not returned to Dept with other papers circulated
with draft to Govr No 39.
These subsequently returned & attached but unaccompanied by tracings A & B.
EBP 22 Augt 65
Other documents included in the file
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Elliot to Emigration Commissioners, 24 March 1865, forwarding copy of the despatch for their observations and suggestions.