Murdoch to Rogers (Permanent Under-Secretary)

I have to acknowledge your letter of 11th inst with a despatch
from the Governor of British Columbia enclosing 3 Ordinances
passed by the Legislature of that Colony entitled:

No. 4 An Ordinance to facilitate the issue of Crown Grants.

No. 17 An Ordinance to assimilate the Law relating to the
transfer of real Estate, and to provide for the registration of
titles to land throughout the Colony of British Columbia, and

No. 18 An Ordinance to amend and consolidate the Laws affecting
Crown Lands in B. Columbia.

2. These Ordinances are accompanied by reports from the
Colonial Attorney General and other voluminous documents. They
form as the Attorney General states in his report of 11th May,
a complete code for "the clearing, acquisition and registration
of title to real Estate in the Colony" and have become necessary
in consequence of the variety, irregularity and confusedness of
the modes in which claims to land have heretofore been created
in Vancouver Island and on the mainland. In a great many cases
 it is said, not only were the Titles in their origin irregular
and insufficient, but they had subsequently been transferred in
an equally irregular & insufficient manner through various
hands, till it was almost impossible to ascertain who were the
rightful owners, or what the nature of the Title under which
land was held. It is to bring order out of this confusion and
to prevent its recurrence hereafter that these ordinances have
been passed.

3. The first Ordinance is intended to clear up all questions
relating to past titles. With this view it authorizes the
Commissioner of Lands, if he thinks fit, and directs him if
required by an applicant, to refer doubtful claims to the
Registrar General of Titles, who is to examine the claims, and
where he is satisfied that they are reasonable, and where the
claimants have not purchased directly from the Crown, is to
notify in the Government Gazette his intention to recommend
the issue of Crown Grants. If no objection is made within the
time (not less than three months) specified in the notices the
grants are to issue—but if an objection be made, or the
Registrar be not satisfied of the claimants title, he may refer
the case to the Supreme Court, which may either decide summarily
both Law and facts, or, if required, may submit the facts to a
Jury. Provision is made for the summoning of witnesses and
compelling their attendance, for the reservation of any equities
attaching to or affecting the Land—for the indemnification of
Government Officers and for other purposes necessary to carry
the Act into operation. The Act which refers to past
transactions only, and is to a great extent permissive, appears
unobjectionable, and I would recommend that it should be left to
its operation.

4. The Ordinance No 17 for the registration of Titles is a
reenactment with some additions of the Vancouver Island Act of
1860 & 1865 for the same purpose—which Acts are said to have
been founded on the Report of the Royal Commission of May 1857
on the registration of Title and the sale and transfer of land.
The Attorney General in an elaborate report explains the
provisions of the Ordinance—the general principle of which is,
he says, a registration of title, as opposed to registration of
assurances. He describes the satisfactory manner in which the
Law has worked during the last 10 years in Vancouver Island and
the objections to, & inconveniences of, the B. Columbia system,
 and the other alternative systems which might be proposed,
including the Imperial Act of 1862 and the South Australian Act
of 1860. A petition against the Ordinance was presented to the
Legislative Council but without effect, the second reading of
the Bill and the report of the Committee being carried
unanimously. A more detailed protest from the legal advisers of
the Banks of British North America and British Columbia was
subsequently presented to the Governor with a request that he
would forward it to the Secretary of State. The Attorney
General combats the statements in the petition and protest at
great length and shows, as it appears to me that the objections
urged against the ordinance are unfounded or unimportant—and
that the measure itself is well calculated to effect the object
in view. But in saying this it is I hope superfluous to add
that I do not presume to offer an opinion on a question so
purely technical, which has been the subject of so much
discussion & such diversity of views among the highest legal
authorities in this Country for many years, and has been so
often under the consideration of Parliament, without as yet
leading to any very satisfactory result. The Ordinance went
into operation immediately it received the assent of the Governor.

5. The above Ordinances having provided a means by which titles
may be assured, Ordinance No 18 deals with the manner in which
they may be created. It begins by a repeal of a number of
Ordinances of B. Columbia extending from Febry 1859 to March
1869, and of a Proclamation of the Governor of Vancouver Island
of 6 Septr 1862. The greater part of the Ordinance relates to
preemption. It provides that any British Subject of the age of
18 or upwards and any Chartered Company with the special
permission of the Governor, may acquire a right to preempt any
unoccupied Crown Lands—not being an Indian Settlement—to an
extent not exceeding 320 Acres. Application to enter upon the
land must be made to the Commissioner of Crown Lands accompanied
by a plan, and after permission is obtained the Preemptor must
enter on the land within 30 days, mark the boundaries, and apply
to have his claim recorded—which record the Commissioner is to
make and give a certificate of it on payment of a fee of $2.
Preempted lots are to be of a rectangular shape, the shortest
line two thirds of the longest, running as nearly as possible to
the cardinal points of the compass, except where there are
natural boundaries or public highways which offer better lines.
Lands already preempted may—if the Commissioner of Lands thinks
necessary—be surveyed, and their boundaries rectified. On a
preemptor proving that he has been in continuous personal
occupation of his land since the date of his record, and that he
has made permanent improvements to the extent of $2.50 an Acre,
he is to be entitled to a Certificate of improvement—after
which the preemption right becomes transferable, subject to the
provisions of the Ordinance as to occupation, forfeiture and
payment of purchase money, in the manner prescribed by the
Ordinance. If a preemptor permanently ceases to occupy his
claim the Commissioner may cancel the claim summarily in which
case all deposits paid and all improvements made are forfeited to
the Crown, and the land reopened to preemption. Personal
occupation, however, is not required beyond four years, and
every preemptor is entitled to two months leave of absence each
year, and may obtain from the Commissioner a special leave not
exceeding two months additional. He may also, on cause shown,
obtain permission to place a substitute on the land for any
period not exceeding 6 months. No person can hold more than one
claim by preemption, and any person preempting a second claim
forfeits his first with all improvements &c. When the
Government survey comes up to preempted land, the preemptor, on
showing continuous occupation and producing a certificate of
improvement, is entitled to purchase at a price not exceeding $1
an Acre, payable in four equal annual instalments subject to
forfeiture if the instalments are not duly paid. Notices of an
application for a Crown Grant must be posted in a conspicuous
place on the preemption claim for 60 days before issue of the
Grant, but upon payment of the whole of the purchase money &
production of a certificate of the posting of the notices
without any objection being brought forward, a Crown Grant is to
issue, reserving however certain rights to the Crown. In case
of the death of a preemptor his heirs, if resident in the
Colony, are to be entitled to a Crown grant on payment of the
purchase money—but if his heirs are absent from the Colony the
Commissioner is to make such arrangements for them as he deems
just. Preemptors to the North and East of the Cascade Range may
make up deficient claims to 320 Acres.

6. Leases of unoccupied land may be granted to preemptors or
purchasers of neighbouring land on condition that it be
adequately stocked within six months, but subject to resumption
for sale, preemption or reserve for public purposes. Subject to
the same liability, leases of haylands not exceeding 500 Acres
may be granted to any preemptor or purchaser, and leases of any
extent may be granted for cutting timber, subject to such rent
&c as may be fixed by the Governor in Council.

Preemptors may divert and utilize any water adjacent to or
passing through their land on obtaining the authority of the
Commissioner and paying $2 for a record of the arrangement—but
if the parties affected thereby refuse to consent, previous
notice must be given of the intention to use such water, &
compensation, to be fixed in case of dispute either by the
Commissioner or by a Jury of 5, is to be paid to any person,
whose land is thereby wasted or damaged. Water may also be
taken for mining purposes on payment of reasonable compensation.
Transfers of preemption rights are to carry with them the
accruing water privileges, but every owner of a water privilege
is bound to be reasonably careful of it, and in case of
unreasonable waste is liable to have the privilege forfeited by
the Commissioner.

7. Preemptors may bring actions of ejectment in the same manner
as if seized of the Fee, and such actions may be decided
summarily by the Stipendiary Magistrate or, if required, by a
jury of 5 to be summoned by the Magistrate. Appeals from the
decision of a Magistrate or of the Commissioner may be brought
to the Supreme Court on points of Law, the appellant giving due
security for the prosecution of the appeal.

8. Surveyed land, other than town, suburban and mineral land,
is to be sold by public auction at an upset
price of $1 an Acre—but land put up and not sold may be
disposed of by private contract. Such sales are subject to
public rights of way and to private rights of way and water
there existing, and also to the right of the Crown to take
Stone, gravel &c for the public roads—but unless otherwise
specially announced, the conveyance is to include all timber &
minerals except the precious metals.

9. The right of free miners to search for minerals—and of the
Governor in Council to make free grants for the encouragment of
immigration or for public purposes is reserved.

10. It will be seen from the above recapitulation that the
Ordinance is in fact little more than a Law for regulating the
system of Preemption. That system was established in Vancouver
Island in 1860, on the model of the similar system existing in
 the neighbouring States of the Union—and was shortly afterwards
extended to B. Columbia. Its advantages and disadvantages have
been repeatedly under discussion, but successive Governors of B
Columbia have been unanimous in considering that it was
indispensable to the progress of the Colony, and that to insist
on the system universal in other British Colonies, of requiring
survey to precede sale, would drive away existing Settlers and
prevent the influx of others. Upon this point I would beg to
refer to the despatch of the Governor of B. Columbia of 22nd
 August 1868, No 106, and the report on it from this Board of
31st of Octr following.

11. Assuming that the preemptive system is not to be interfered
with, the present ordinance is, I think, open to no objection.
It is in fact an improvement on the existing Law, inasmuch as it
settles the doubt, previously existing on the mainland, as to
the necessity of personal occupation of preempted Land. The
Ordinance is passed with a suspending Clause, and it will
therefore be necessary, if Lord Kimberley approves it, that it
should receive Her Majestys special confirmation in the usual form.