Walcott to Elliot (Assistant Under-Secretary)

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.