Colonial Despatches

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 certain 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 towards 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 Company 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 to 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 procured 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 think 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 of 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 very 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.