The Despatches at court

by Gord Lyall

One of the main user groups of this database is lawyers and legal teams. This is because many colonial administrative decisions regarding the “land question” and “aboriginal title” can be found in this correspondence. While a few selected documents from this large collection were used in the Snuneymuxw hunting case of 1964, Regina v. White and Bob, a later case, Claxton v. Saanichton Marina, 1987, is the first Canadian trial that relied on a comprehensive collection of these documents, our Despatches.
The Claxton v. Saanichton Marina case is a significant case in Indigenous/settler relations in British Columbia. Tsawout elder, Earl Claxton Jr., who famously jumped on a clam-shell bucket dredger in the middle of a snow storm to stop construction, calls the decision a “bedrock” case in the question of “aboriginal rights.”1 Legal scholar, Hamar Foster sees it as the first time an Indigenous group in Canada used a treaty (the so-called “Douglas Treaty of 1852” with the W̱SÁNEĆ people) as a sword instead of a shield.2
In Claxton v. Saanichton Marina, the Province, who acted as intervenors in the case on the side of the defendant (Saanichton Marina), used the Despatches for historical evidence. The Tsawout, however, won a permanent injunction and subsequent Indigenous claims cases have built upon this success. While the Colonial Despatches in this instance served the Province’s case for settler development on Indigenous land, this collection is also a valuable resource to those seeking land justice for the Indigenous Peoples of BC in the future.
Below are transcripts of the discussion between one of the Province’s lawyers and Justice Meredith as they discuss the provenance of the Colonial Despatches collection and Jim Hendrickson’s novel use of “word processors” which allowed the court to search for strings such as “Indian” and “aboriginal title.” This moment marks the first legal use of this collection thanks to a nascent form of the Despatches project.
  • 1. "Tsawout Indians stop marina," Native Voice, January 1986, 9; interview with author, 6 March 2020 and 27 June 2020.
  • 2. Personal communication with author 6 September 2019, 8 February 2020 and 6 June 2020; see also Neil Vallance, "Sharing The Land: The Formation of the Vancouver Island (or ‘Douglas’) Treaties of 1850-1854 in Historical, Legal and Comparative Context," (PhD dissertation, University of Victoria, 2015), 284.

Supreme Court of British Columbia, Claxton v. Saanichton Marina. Proceedings at trial (K), 11 September 1987, 25-27.

THE COURT: All right. Mr. Edwards, just before we recess, then, are these documents by Mr. Hendrickson, and I suppose that he has had transcribed, are they quite — of quite recent discovery or have they been —— I mean have they been unearthed recently by Mr. Hendrickson?
MR. EDWARDS: Perhaps I could have my colleague, Mr. Prelypchan, describe that. He is more familiar with this than I am.
THE COURT: I would be pleased to know.
MR. PRELYPCHAN: The documents themselves were known to historians. As it happened. the practice of the Colonial Office was to organize them correctly and carefully and have letter books and that kind of management of material. Similarly, the Colonial Organization on this side of the water, Governor Douglas kept letter book copies, so it was able to be put together in the past from original correspondence, but by reason of its voluminous attributes on both sides of the water, they were never able to be put together until microfilm came about and the Public Records Office copied this material in the interest of all.
THE COURT: Public Records Office?
MR. PRELYPCHAN: In London, yes. The Public Records Office in London then made these microfilms available to museums and archives.
THE COURT: And these are microfilms of the handwritten documents?
MR. PRELYPCHAN: That’s correct, and originally they went to Canada, Public Archives in Canada had them for a number of years and then Public Archives Canada felt that regions such as British Columbia were directly affected and might be interested in access to this information so they made copies available to British Columbia and it was only within the perhaps last five years, I understand, that Professor Hendrickson, himself being a Canadian historian, felt that even better access should be made to these materials, so he had these microfilms made available to him at the university and with the source of a variety of funding and some of it, I understand, even being the Law Foundation, had them read by people whose eyes were accustomed to proclivities of colonial officials with these minutes which you heard about and script and that kind of thing, and he was able to reduce them in this way. He doesn’t pretend to apologize where there are mistakes but I hesitate to say that they are as close to perfect a translation of them as you are going to get, but if Your Lordship is concerned about the veracity in any way –
THE COURT: No, I wasn’t concerned about that at all. I was just concerned about the timing of the documents were there, but nobody had really put them all together and –
MR. PRELYPCHAN: Well, maybe I can describe why this has become possible in today’s world, if I can, because Professor Hendrickson in reading them had them reduced through electronic means into word processors and eventually this can become a computer product.
THE COURT: What does that mean, electronic means?
MR. PRELYPCHAN: A disk, we say. if you were, for example, doing your reasons for judgment in this case, it is likely support staff would have a microprocessor in the back room grinding it out and you say, well, change this one and change that one.
MR. PRELYPCHAN: But if you decided in the course of your judgment to change one word to change one word consistently throughout your judgment, they could access that one - word very quickly.
MR. PRELYPCHAN: And that is what has enabled the court now to have the ready access which it did not before to the collection in this organized way. It would have taken manpower to read each of the documents which you have heard about today and say, "Now, I remember reading something somewhere else that could link it up,” but a computer, by typing in the words, for example, "Indian", "aboriginal title", these kinds of things, has been able to draw out from Professor Hendrickson the relevant documentation which has been put before you. So, it was only that kind of technology that has resulted in a better description of the available material.
THE COURT: Well, that is identification of documents, but he -- somebody would have to read from those microfilms.
THE COURT: And that would be dictation and the transcription?
MR. PRELYPCHAN: Yes, and that process was the microfilm was before a trained operator and this- person as they read the microfilm, would type it into a word processor in the same way as we hear the spoken word today by the court reporter. Eventually Professor Hendrickson would peruse them. If there were any questions of interpretation or spellings or other kinds of things, they were faithfully reproduced, but Professor Hendrickson would have been consulted, I understand, as to what the wording was and eventually he stands behind the product as a historian to say that the microfilm was read and it was faithfully reproduced. I will offer this in the -- in interest of comfort to the court: Professor Hendrickson would be available to describe this process to you viva voce if of interest.
THE COURT: It would be of great interest, but I don’t think it is really too relevant unless there is a challenge to the documents.
MR. PRELYPCHAN: I don’t believe there is, and I don’t –
THE COURT: I am just interested in knowing what, if anything, of these documents were available to the court, for instance in the White and Bob and in subsequent cases having to do with the application of provincial game laws and so on. I guess this is the first time they have all been put together.
MR. PRELYPCHAN: Yes, some documents were available, for example you heard Mr. Edwards talk of the application by Douglas to the colonial government for additional funding.
MR. PRELYPCHAN: And the reply. That was before the court involving Bob and White, I understand.
THE COURT: That was the £3,000?
MR. PRELYPCHAN: Yes, but I’m not aware whether the colonial office notes, for example. Were carefully scrutinized in an attempt to link the internal communication between one colonial office and the Treasury Board or the Immigration Board and the colonial office was before the court then.
THE COURT: Mr. Justice Morrison, who did the most extensive judgment in that case wouldn’t seem to have had a great deal of this information.
MR. PRELYPCHAN: That is my understanding. I have made an attempt to find what the record before the Supreme Court of Canada in Bob and White was and from my perusal of it. I know, for example, that the communication between the Governor here and Newcastle was before the court but I -- I have not been able to satisfy myself that the colonial office notes were there or the internal communication, so it gives a better understanding of what the reaction of the administration was.
THE COURT: Fascinating. Then the challenge which is raised in the pleadings here about which I have ruled really, I think that that would really require me to reverse White and Bob but that would be made on the basis of new information which emerges from these documents.
MR. PRELYPCHAN: Yes, that -- that was the difficulty we faced as counsel, recognizing that Bob and White was there and it was a judgment that would be facing you, but we nevertheless having this, what we felt were some additional documents, an obligation to place them before the court and as we have to representing our client in the office of the court, bring our own interpretation to them, which was perhaps they weren’t treaties, and, therefore, our pleading.
THE COURT: Thank you very much.
MR. PRELYPCHAN: Thank you, My Lord.
THE COURT: That is very interesting and so we are at an end now, are we?
MR. EDWARDS: As far as I’m concerned, My Lord. Those are the only references I intend to make until we get to argument on the documents.
THE COURT: Thank you. We will recess to ten o’clock Monday.
THE REGISTRAR: Order in court.