<persName ref="prs:berens_hh"><surname>Berens</surname>, <forename>Henry</forename> <forename>Hulse</forename></persName> to <persName ref="prs:newcastle"><surname>Pelham-Clinton</surname>, <forename>Henry</forename> <forename>Pelham</forename> <forename>Fiennes</forename></persName> 16 January 1860, CO 305:15, no. 533, 348.

Berens to Newcastle 533, CO 305/15, p. 348; received 17 January

Hudson's Bay House London

16 January 1860

I have the honor to acknowledge the receipt of a letter from Mr Under Secretary Merivale of the 7th instant in reference to the land claimed by this Company in Vancouver's Island, irrespective of what they acquired by purchase under the Grant made to them by the Crown of that Island.

I am surprised to learn from that communication that the claimclaim which this Company make to the land acquired by them at a period antecedent to the Grant should be considered by your Grace as new, inasmuch as it has been the subject of frequent communications between this Company and Her Majesty's Government, and their title to it has been expressly recognized.

Indeed, as your Grace will not fail to observe the letter of the 7th September 1846 from the then Governor of this Company to Earl Grey referred to in Mr Merivale's letter distinctly brought under the notice of HerHer Majesty's Government that this Company did then already possess an Establishment on the Southern point of Vancouver's Island. Not only is that fact distinctly stated, but it is further mentioned that they were annually enlarging that Establishment and their enquiry want merely to know whether they would be confirmed in the possession of such lands as they might find it expedient to add to those already possessed, it never having been supposed for a moment that any doubt existed as to their right to hold what they were then in possession of.

Indeed

Indeed they could not at that time have entertained any such doubts, as it was only a few months before that Her Majesty's Government had expressly protected them in the enjoyment of similar rights in that part of the Oregon Territory which was found to belong to the United States. *

The answer received from Mr Under Secretary Hawes merely raised the question whether this Company could in point of law hold in their Corporate capacity any lands within the Dominions of the British CrownCrown Westward of the Rocky Mountains, the Under Secretary stating that the answer to that enquiry might perhaps relieve his Lordship from the difficulty which he then felt in returning a definitive answer to the application made to him.

The opinion of the law Officers of the Crown was subsequently taken upon that point, and terminated, as your Grace is no doubt aware in a distinct opinion that the Company could legally hold such possessions, and the Grant of the Island of Vancouver was the consequence. **

The

The subject of the lands claimed by this Company was again brought under the attention of the Colonial Office in a communication from the Governor of Vancouver's Island to Earl Grey bearing date the 28th April 1851 and which was communicated to this Company by Mr Under Secretary Merivale in a letter dated the 3rd September 1851. Governor Blanshard then called the attention of Her Majesty's Government to what he termed "the large tract of land called their Reserves of about 30 Square Miles in extent."

Under

Under date the 10th September 1851 the then Governor of this Company in answer to this communication stated that at the period referred to by Governor Blanshard it was thought that the Fur Trade branch of the Company would require a considerable quantity of land in addition to that which they possessed before the conclusion of the Boundary Treaty in 1846 and he went on to state that when it was found that the land occupied by the Fur Trade at Fort Victoria before 1846 was considered by Mr Douglas to be sufficient for thethe Company's purposes the Company had reduced the sum which it had been proposed to advance for expenditure on Public Buildings to £2,000 instead of £4,000.

In a subsequent letter from the Governor of this Company to Earl Grey dated the 7th November 1851 in reference to a communication received by the Colonial Office from Rear Admiral Moresby on the subject of the Hudson's Bay Company's Reserves of Land round Fort Victoria he refers to the previous letter of the 10th September as shewing that the quantity of Land reserved for the purposes of the Fur TradeTrade instead of being 20 Square Miles was not likely to exceed 6, and that this land was in the Company's possession before the division of the Country by the Boundary Treaty with the United States, and he adds that should any addition to the quantity be required the Company would pay for it as other Settlers did.

The receipt of this letter was acknowledged by Mr Under Secretary Peel under date the 20th December 1851 and, as from the terms of this letter Lord Grey did not appear to have adverted to the distinction between Lands which thethe Company might acquire after the grant to them of the Island and those which they claimed to have been previously possessed of, Sir John Pelly the Governor in replying to it, under date the 14th January 1852 stated as follows With respect to the Reserves of Land concerning which your Lordship wishes for more particular information I have to state that by the last Mail Mr Pemberton the Colonial Surveyor has sent home surveys of the land which the Fur Trade of the Hudson's Bay Company propose to take, but has omitted to distinguish that which they possessed previously to thethe Boundary Treaty from the whole quantity. The former will be made over to them without purchase, and for any addition thereto they will have to pay 20/- per acre, as all other Setters do.

On this subject it is hardly necessary to do more than refer your Grace to a letter addressed by the Secretary of this Company to the Secretary of the Government Emigration Board under date the 21st January 1859 which goes in detail into the whole matter and as the title of the Company to these lands is in the result clearly recognized I have the honor to send herewithherewith a copy of that communication which I trust will remove the doubts your Grace has expressed as to the right of the Company to retain this land.

Your Grace will I think be satisfied that not only is the claim now under discussion not a new one but that attention was called to it so long ago as in the year 1846 and that after a very full discussion and examination of the subject—the title of this Company has been fully recognized. Indeed attention was also called to it when under date the 24th February 1858 the then Governor of this Company furnished toto Mr Labouchere the then Colonial Secretary a statement of the sums for which they claimed repayment as expended upon Vancouver's Island and as the value of their Establishments property and effects thereon. In that statement an item of land (3084 acres) for the Reserves in question was introduced and attention was specifically called to it by a note at the bottom to the following effect—

The Land comprising 3084 Acres having been possessed by the Hudson's Bay Company as Fur Trade Reserves previous to the Grant of the IslandIsland in 1849 it will have to be considered whether the price to be paid shall not be the Current Value of the Land instead of the fixed price of £1 per acre. ***

Under these circumstances I entertain a very confident hope your Grace will be of opinion that no attempt should be now made to disturb this Company in the possession of property which they have so long enjoyed with the full knowledge and sanction of the Government for the time being.

I am etc. H.H. Berens GovrGovernor

Mr Merivale VJ 17 Jan

I want the correspondence of 1851, with the minutes, to which attention is called in this communication. HM Jan. 17

The correspondence will be found marked in the accompanying Vol. VJ 18 Jan

Duke of Newcastle 1. As to the transactions at the time of the grant of Vanc. I. to the Company, I do not think this answer meets our case to the slightest extent. No doubt the Company did set up at that time a claim to land "possessed" by them in Vanc. I. No doubt they asked for a Crown grant of this land, being quite aware, as we must infer, that they had no good title to it without. No doubt the Crown declined making any such grant, but offered, instead, a temporary and determinable grant of the whole island. And no doubt the Company accepted this in lieu of their claim. From that acceptance, all legal distinction between land "possessed" by them anteriorly, and the rest of the island—if there ever was any such distinction—ceased altogether.

2. But the Company are right when they say that their claim to this land was again brought before the notice of this department in 1851-2 and formed the subject of a correspondence. I am sorry that this correspondence had escaped my recollection when I minuted the late answer to the Company. But on reading it over, I do not think it affects the case. No doubt even an admission of Lord Grey's, hastily made, could not affect the law of the case as between Crown & Company, and could only afford ground for complaint & possibly compensation. But it does not appear to me that Ld Grey made such admission. The Company talked of this land as theirs—their "possession" and so forth—but they nowhere that I can find claimed to hold it in perpetuity as property of their own independent of the Crown's right to repurchase. Which is the real point. Ld Grey merely said "he did not feel disposed to question their claim" such as they made it—which was, simply, to hold this land without paying for it—and there the correspondence dropped. I observe that in a Minute of my own I called his Lordship's attention to the circumstance that some awkward question of right might arise: but he did not apparently think it worth while to carry the matter farther. Very probably he thought a question of 3000 acres more or less not worth pursuing, in the neglected state in which Vancouver's Island then lay.

As to the later correspondence referred to, I observe that in 1858 they expressly admitted the Crown's right to repurchase this very land—& only raised a question as to terms—which is in absolute contradiction to their present claim of absolute property, as I understand it.

The question as it seems to me for your consideration is, whether we shall continue to negative this claim altogether & insist on the Crown's right to repurchase, which for my own part I cannot but believe undesirable, or whether we shall add this Vanc. I. question, to the similar reference to the Judl Com. now pending, about British Columbia.

HM Jan 23

I do not entertain any doubts of the invalidity of this claim & I am afraid the Compy has rather thrown it in at the last moment as a make-weight. I do not however see any objection to offering to add it to the reference—it will be better than a long contention either at Law or on paper. N 28

Draft, Merivale to Berens, 7 February 1860, further discussing the question of land claimed by the company in Vancouver Island, and offering to refer the matter to the judicial committee.

S. Walcott, Secretary, Emigration Board, to Secretary of the Hudson's Bay Company, 8 January 1859, requesting information regarding the 1,200 acres claimed by the company in Vancouver Island as "part of their Fur Trade concerns."

Thomas Fraser, Secretary, Hudson's Bay Company, to Walcott, 21 January 1859, providing detailed explanation of the company's claim to land in Vancouver Island (thirteen pages). Transcribed below.

What they mean by "Express protection" is the so called recognition in the Treaty. [HM]

Yes—that they could hold—not that they did hold a single acre. [HM]

This seems an admission the other way—vizt that GovtGovernment had right to repurchase it. [HM]

(Copy) Hudson's Bay House London, January 21st: 1859 Sir,

I am directed by the Governor and Committee of the Hudson's Bay Company to acknowledge the receipt of your letter of the 8th January in which you refer to a Despatch recently received from Mr Douglas, the Governor of British Columbia and Vancouver's Island making allusion to a tract of land of about 1,200 acres in the neighbourhood of Victoria said to belong to the Hudson's Bay Company, and requesting to be informed by what Instrument the Company hold it; whatwhat is its exact situation and extent, and what is the difference between the tenure of this and their other lands in Vancouver's Island—

In answer to these questions I am directed by the Governor and Committee to state that the Lands in Vancouver's Island belonging to the Hudson's Bay Company are of two kinds; 1st the lands which they held previous to the boundary treaty between the United States and Great Britain of the 15th June 1846, and 2ndly those which they have since acquired by purchase.—

The Tenure of the Sounds held by the Hudson's Bay Company previous to the Boundary treaty of 1846 isis clearly explained in a correspondence which took place between the Secretary of State for the Colonial Department and Sir J.H. Pelly then Governor of this Company in 1851/52. On the 14th January 1852 Sir J.H. Pelly writing in reference to the reserves of land belonging to the Company, with respect to which further information was asked, says: By the last mail Mr Pemberton, the Colonial Surveyor, has sent home surveys of the Land which the Fur Trade of the Hudson's Bay Company propose to take, but has omitted to distinguish that which they possessed previous to the Boundary Treaty— from the whole quantity; the former will be mademade over to them (the Hudson's Bay Company) without purchase, and for any addition thereto, they will have to pay 20 pounds acre as all other Settlers do —

In acknowledging this letter Mr Peel in a letter dated 2nd February 1852, says, — His Lordship would be glad of some further in-formationinformation respecting the circumstances stated in the 4th paragraph of that letter. He does not sufficiently know the facts to understand the distinction drawn between the Lands which the Hudson's Bay Company possessed before the Boundary Treaty and others; or the meaning of the expression Lands which the Fur Trade of the Hudson's BayBay Company propose to take—

In answer to this letter Sir J.H. Pelly wrote under date the 4th February 1852 giving the following as the required explanation— During the period that elapsed between the original connection of the Hudson's Bay Company with the Country West of the Rocky Mountains, and the division of the Territory by the Boundary Treaty of June 1846, while in fact the sovereignty was in abeyance, the Company reclaimed from the wilderness, and occupied portions of Land wherever their trading establishments were planted. TheseThese Lands they claim as theirs without purchase and the possessory rights thus acquired in that portion of the Territory which is South of the 49th parallel of North Latitude, have been guaranteed to them by the boundary Treaty; Among the lands occupied by the Company North of the 49th parallel is that situate at Fort Victoria in Vancouver's Island, where they formed an establishment in the year 1843, and this is the land alluded to in the 4th paragraph of my letter of the 14th December— Its exact extent has not been yet ascertained by the Company's Sur-veyorSurveyor, but whatever that may be thethe Company consider they have a right to hold it, while for any additional quantity that may be required to be taken by the Fur Trade, (which is merely a subordinate branch of the Hudson's Bay Company) the same price will be paid as is paid by other purchasers of Land

The explanation was con-sideredconsidered perfectly satisfactory by Earl Grey, and accordingly Mr Frederick Peel was directed, under date the 14th February 1852, to write, — His Lordship having considered this explanation, directs me to state that he is not disposed to question the right of the Company to land actually occupied occupied by them previously to the arrangement for constituting Vancouver's Island a Colony, but that he wishes to be furnished, as soon as possible, with a statement of the extent and description of the lands so claimed by the Company and he adds that His Lordship understands the claim preferred to be strictly confined to be strictly confined to Land actually occupied and made use of, beyond which he conceives it ought not on any account to be extended —

Shortly after this period the land in question was surveyed by the Colonial Surveyor and found toto amount to 3084 acres, and I may state that on the 24th of November that year the then Governor of this Company, in a letter addressed to Sir John Pakington informs him that The Fur Trade of the Hudson's Bay Company are in possession, under the sanction of Her Majesty's Government of 3084 acres of Land which were occupied by them previously to the date of the Boundary Treaty. They have sold portions of this land to some of their retired servants who have settled upon it—

In sending home the survey of these Lands the Colonial Surveyor sentsent also the usual Land Deeds given to the purchasers of Land in the Island for the purpose of their being executed by the Company in this Country— that being supposed by him to be the correct mode of completing the Company's Title— But the Company having been advised that as the whole of the Land, by the Grant from the Crown, was already vested in them the grand of Land by the Company to themselves would be an anomaly, and that all ^^^thatthat was necessary was an entry of the facts upon their Books, the following Resolution and Order were passed under these respective dates.—

— 26th September 1853. — ResolvedResolved - - That the Registrar of Deeds in Vancouver's Island be directed to enter in the register in the name of the Governor and Company of Adventurers of England trading into Hudson's Bay, the Land amounting to 3084 acres, situated in the Victoria District which was occupied by the Company prior to the Treaty between Great Britain and the United States of America dated June 15th 1846, the detailed particulars of which will be transmitted to the Registrar with a Copy of this Resolution —

— January 30th 1854— Ordered— That Lot 24 containing 1212 acres, Lot 31 containing 1130 acresacres and Lot 33 amounting to 710 acres, being land occupied by the Company prior to the Boundary Treaty of 1846, be entered in the Land Register of Vancouver's Island as directed by the Minutes of the 26th September last—

The Land referred to by Governor Douglas as containing about 1200 acres in the neighbourhood of Victoria is Lot 24 of the reserves— The other two Lots Nor 31 and 32 though also in Victoria District are at some distance. The three Lots will be found distinctly set forth under their respective numbers in a map of the Districts of Victoria and Esquimalt, published by Arrowsmith of which I herewithherewith forward a Copy for the information of the Government Emigration Commissioners— The only land acquired by the Hudson's Bay Company since 1846 is a tract of 6193 acres in the Nanaimo Coal District, for which they have paid like other settlers — A return of that purchase was made to the Colonial Office on the 9th of June 1855 in a letter addressed by Mr Colvile the then Governor of the Company to Lord John Russell

I have &c. (Signed) Thomas Fraser Secr

2533/60

To) S Walcott EsqSecretaryGovernment Emigration Board.