Colonial Despatches

Mr Elliot
I wish to refer you to Sec. 4 of Sir J. Douglas' desph of the 13 Novr 63/12536 in which he gives a very different version of the operation of the Gold fields Act, & instances a case in which, under the existing Laws of B.C. as to Land, & mines, a small body of people, with industry & skill, and aided, I shd judge, with no great amount of capital, has "won the admiration" of the district Gold Commissioner, & it is to be hoped, profitable results to itself. And the case the Govr mentions is not a solitary one. If then success can be achieved by a small association of Individuals under the operation of the Laws, as now framed, I cannot think that the "draw back" complained of in this letter is very great. Amendments perhaps may be requisite from time to time. Moreover will it be just towards the enterprizing miners, who are the backbone of the Country, to place them at a disadvantage by granting concessions & privileges to a Company, or any association of Individuals? My opinion is that if a Co, aided by capital, cannot succeed, when small folks do, there must be mismanagement in the proceedings of the former. The course shd be open to all comers, & no favor. But Mr Mackean seems to ask for his Co that it may hold, in its corporate capacity, land, as a freehold for mining & agricultural purposes, a royalty being levied on all ore—which royalty shd exempt the Co from any further charge. Now this Cy may purchase outright any Land it may select for agricultural purposes at 4/2 an acre: but land for mining purposes can only be obtained on lease. This may be a restriction on capitalists & may justify a revision of the Mining Laws. But such revision could only be effected by the Legislative Council. A reference, therefore, to Mr Seymour, telling him to take the subject into his consideration, & confer with the local Authorities is, I apprehend, the first & only step this Office can take at present.

Mr Fortescue
I have conferred on this subject with Mr Seymour. In conversation with him Mr Mackean had only spoken of the advantage of allowing Companies to be formed for working gold: he said that the state of the law of Columbia was adverse to the creation of such Companies. In the present letter he has mixed up the separate question of a Land Company.

I have no doubt that it is desirable that capital should be applied systematically to the getting of gold, andtherefore therefore that the formation of Companies for that purpose under due conditions should not be discouraged. But you will see by a memo: annexed from Mr Ebden, whom I requested to look into the local laws, that the mines have never been conveyed away with the land, but have been reserved to the Crown to be leased on suitable terms. I think that to this we ought to adhere.

I should write by the next Mail to Mr Seymour, forwarding a copy of this letter and expressing some such opinion as above, and saying that the Secretary of State would be glad to consider any suggestions which may occur to him on the terms on which Companies might properly be encouraged to look for a lease of Mines. I apprehend that these terms should probably be the same whether in respect of mines found upon lands of which the Company might have acquired the freehold, or upon lands which still belong to the Crown.

I should answer Mr Mackean that the purchase of lands by a Company for agricultural purposes and the acquisitionby by it of mining rights must be viewed as two distinct subjects, and that in conformity with the practice established in Australia, as well as in British Columbia, the rights to minerals must be reserved in alienating the Crown lands, but that this would not prevent the leasing of them on fair and moderate terms. I would state that the new Governor had been requested to consider the subject, and report on the conditions under which it might be suitable to grant such leases to any Companies possessed of sufficient capital to work them with advantage to the Public.

There are Australian Gold Companies, but I have not yet been able to find that we have a record of the terms which they enjoy. Unless any such should be brought to light before this minute is executed, I would suggest that we should write to N.S. Wales and Victoria to ask the question, and that we should mention to Governor Seymour that we have done so and will apprize him of the result.

Duke of Newcastle
So Proceed?

Mr Elliot
I have not been able to find any Colonial Act or other instrument specially establishing any Gold mining company.

The drift of Colonial enactments would appear to be secure the full authority of the Crown over auriferous land. Thus as in N.S. Wales leased Crown agricultural land and as in B. Columbia preempted Crown Agricultural land (in other words I suppose Crown land of which the occupier has not the freehold or at most is only in the course of acquiring it) are subject to reservation of mining rights.

The N.S. Wales, Victoria and B. Columbia Gold fields Acts each contain a clause enabling the [Govt?] to lease auriferous lands in return for rent whether in the shape of royalty or otherwise, but I have not found any provision for the Sale of such land i.e. for the surrender of the freehold.

Nor could I find any allusion to a company. The possible lesser of auriferous land is spoken of as a person, but perhaps the acts are elastic enough to admit companies to be lessees.

Mr Halksworth
Will you send me Bank of B. Columbia 1206/64 B.C.

Draft reply, Newcastle to Seymour, No. 2, 22 February 1864.

Elliot to Mackean, 23 February 1864, advising the purchase of land by a company for agriculture, and the acquisition of it for mining rights, must be viewed as two distinct subjects.