Ontario. Legislative Assembly.

Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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monopoly for their own benefit, to the exclusion of the rest of the Queen's subjects from
the occupation and cultivation of such lands as were fitted for agricultural purposes ; and
with re^urd to Vancouver's Island, its value, in a political point of view, seemed so well
onderstood, that there appeared no room for doubt that it was deemed inexpedient to
suffer it to continue in the hands and under the control of that corporation.

As to the mainland, I gathered that the impression entertained by Her Majesty's
Govemmftnt was in favour of placing such portion of it as was fitted for settlement, to
the west of the Rocky Mountains, under the control of the Colonial Government proposed
to be established at Vancouver's Island ; while as to such portion of it similarly fitted
for settlement as lay to the eastward of that mountainous chain, there was a readiness to
meet the views of Canada — ^by placing it under the control of the Government of
this Province, if the practicability of opening communication between Lake Superior
and Bed River, and so to connect this more distant territory with Canada, under one
general Administration, were established, also subject to the rights (whatever they were)
of the Hudson's Bay Company — and to an adjustment of compensation for that which it
nu^t be found necessary to take from them.

Although conflicting opinions existed as to the mode in which the settlement and
admmistration of affairs in this territory should be effected, the prevalent, as I have
already stated, was in favour of an entire change of system, and I could anticipate an
enquiry whether Canada would be disposed at once to assume the charge of settling and
governing and (except as to foreign aggression) of maintaining peace in the territory
indicated, accepting the burden of adjusting such claims as might appear on enquiry to
he well founded, and if not, what other arrangements would be suggested in contemplation
of its ultimate cession to her.

I endeavoured to point out to Your Excellency, in my despatch of the 27th March,
the question which I deemed of the most prominent importance, and I discussed therein,
at some length, some of the leading considerations involved in them, and I submitted
8nch conclusions as (so far as I could then perceive) I thought it would be for the
interests of the Province to arrive at As to the validity of the claims of the Hudson's
&7 Company under their charter, I assumed the Government at home entertained the
same views as to the propriety of a reference to the Judicial Committee of the Privy
Council as had been expressed in 1850.

During the residue of the session of Parliament, and from the dissolution until after
the elections, I had but little opportunity of communicating with any of the authorities
on these points. I took, however, the earliest convenient occasion to ascertain, as well
at the Colonial Office as elsewhere, what opinions prevailed with regard to them, and
^aa surprised and disappointed to find that doubts had been suggested and difficulties



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64 FINAL BEPOBT OF CHIEF JUSTICE DRAPER.



raised to following out the course previously suggested by the law advisers- of the Crown,
and sanctioned by Earl Grey. It was intimated to me, that possibly the Judicial
Committee might decline pronouncing any opinion upon the validity of the claims of the
Company, when no parties were before them, whose right would be bound by their
decision, and that it was more fitting the judgment should be given in a case where the
rights of parties were in actual dispute upon which their decision would be strictly
judicial and binding. I could perceive plainly that the difficulties, which it was supposed
might be met with in the Judicial Committee, must have been suggested since the
correspondence of 1850, and that they were deemed of some importance at the Colonial
Office. A brief interview with Sir R Bethel, the Attorney-General, led me to believe
that he thought, that after so long an enjoyment on the part of the Hudson's Bay
Company, it was not by the Crown that the validity of their charter should be brought
into discussion. From all this, I drew the conclusion, that, unless I could raise a question
of legal right in which the Province of Canada had a direct interest, there was very little
prospect of any reference to the Judicial Committee, while I felt a very strong conviction
that no other judgment would be satisfactory on the validity of the Company's claims,
or if adverse to the claims of the Province (which, however, I did not believe possible)
would receive a respectful submission.

With this impression, I considered that vague and indefinite as the southern
boundary of the territory mentioned in the Company's charter is, the limits of the
Province of Canada in that part are made dependent on it. I observed also, that this
same boundary had been a matter of lengthened dispute between Great Britain and
France, finishing only by the treaty of 1763. That at various periods subsequently to
1670, and to 1750, the Hudson's Bay Company had been called upon to point out the
extent of their territorial claims under the charter, and to define the boundary which
they claimed, and that on no one occasion during all that period had they advanced the
claim they now insist, upon, namely, that the charter gave them the ownership of all
lands, the water from which flows into the Hudson's Bay or Straits, and therefore
extending as far as the head waters of the Red River, and east and west of that stream
to the sources of its tributaries, though the Ashburton treaty has, of course, disposed of
so much of that claim as lies south of the 49th parallel of latitude. And I prepared a
memorandum on the subject, which I forwarded to the Secretary of State for the Colonies
in a letter, a copy of which letter and its enclosure was transmitted to Your Excellency
in my despatch of the 8th of May, 1857.

My object was to place the question on a footing by which the Crown would be
called upon to determine the boundary between the Colony and Rupert's Land, as it is
styled in the charter of 1670, and, for its own information and guidance, would find it
desirable, I might almost say indispensable, to obtain the advice and opinion of the
Judicial Committee of the Privy Council. Of the right of the Crown to take this coarse
under the Imperial statute 3 and 4 William IV., there can, I apprehend, be no doubt
It is treated as clear by Mr. MacQueen, in his '' Practice of the House of Lords and
Privy Council," and on such a reference, I presume, the Judicial Committee would simply
make a report, and not pronounce a judgment ; upon which report Her Majesty might
issue an Cfrder in Council, establishing the boundaries, in virtue of her prerogative royal
Such a declaration would, I venture to submit, meet with respect and obedience in all
Her Majesty's Courts of Justice. But if there was a shadow of doubt of the full
authority of such an order, a declaratory Act of Parliament, founded upon it, or upon
the report of the Judicial Committee, would set the question at rest forever. I thought
that counsel for the Province, as well as for the Hudson's Bay Company, would
be heard, and I did not see how it would be possible to exclude the former from contesting
the validity of the charter, when it was to be used for the purpose of limiting Canada
on the north.

Parliament was opened on the 8th of May, and a Committee of the House of
Commons was named to continue the enquiry. Before that Committee met, I received,
(the 12th May) the minute of Your Excellency in Council, of the 27th April preceding,
which expressed a fixed opinion that no immediate charge should be taken of any territory
in a form which would throw upon the Province the cost of administration and



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FINAL BEPOBT OF CHIEF JUSTICE DRAPER. ^ 65



defence, while in an unsettled state, until the sanction of the Provincial Legislature was
obtained, and that in the meantime I should see — *^ 1st. That Canada should be secured
the reversion of such territory north and west of Lake Superior as experience may show
to be fit for settlement, contingent on the opening of such communication from Canada
as may prove sufficient to allow their future union with the Province. 2nd. That
immediate steps should be taken by Her Majesty's Government to prevent the absorption
of the territory west of Lake Superior by unauthorized emigration from the United
States. 3rd. That every facility should be secured for enabling Canada to explore and
wryey the territory between Lake Superior and the Rocky Mountains — and if the
Provincial Legislature should think fit to provide the means of so doing, no obstacle
should be thrown in the way of the constructing of roads or the improvement of water
communication, or the promotion of settlement beyond the line supposed to separate
tbe territory of the Hudson's Bay Company from that of Canada."

The first meeting of the Committee was on the 15th May, when no business except
the appointment of . the Chairman was transacted. I submitted the names of several
witnesses whose evidence I thought would be found valuable ; and I received an unofficial
intimation of the intention of the Committee to call me before them as a witness. I saw
at once the embarrassing position in which this would place me, for it must have been
▼ell known that I had no personal knowledge of the territory, and I was therefore
certain that my opinions and not my knowledge must form the subject of examination,
and that questions might very easily be put to me, which it would be difficult, bearing in
mind the restrictive character of my instructions, to answer. I almost determined —
if the matter were in any way left open to me, as a matter within my own discretion
—not to appear as a witn^ though I felt such a coui*se might be open to great miscon-
struction, and might create impressions unfavourable to the interests of ^e Province.
However, at the meeting of the Committee of 21st May, the chairman expressed his
opinion that I should be called before them, in which all present apparently concurred,
and it was formally stated to roe that the Committee desired my attendance at their next
meeting. I took an opportunity, as soon as the Committee broke up, of stating to the
Chairman my objections j but (if he felt there was any force in them) he left me no
reason to doubt that in his opinion I should comply with the expressed desire of the
Committee.

In the meantime, however, I had learned, through the public press, that an expedi-
tion had been set on foot to conduct a geographical survey through a part of the territory
in question. I addressed a letter on this subject to the Secretary of State for the
Colonies (16th May, 1857 — separate. No. 5), a copy of which I enclosed to Your
Excellency in my despatch of the 21st May. To this I received a reply from Mr.
Merivale, one of the Under-Secretaries of State, bearing date the 25th May, and on the
27th May I received a reply from Mr. Fortescue, the Parliamentary Under-Secretary
of State for the Colonies, in reply to my letter of the 6th May, copies of which were
transmitted by me to Canada, in my despatch of the 29th of the same month. (Separate,
Na 6).

On the 28th day of May I was examined before the Committee. I took particular
care to have it understood that I had no instructions to appear before them as a witness.
Examined repeatedly as to my individual opinions on the subjects of enquiry, I could
not avoid stating what I sincerely thought ; but while I felt bound to reply without
reserve, I was solicitous to impress that I stood alone responsible for such views, that I
pretended no authority to advance them in the name of the Province, and that they were
in some instances opposed to what I believed many people in the Province thought.

I addressed a reply on the 5th June to the letter which I had received from Mr.
Fortescue on the subject of the suggested reference to the Judicial Committee of the
Privy Council, and in this letter I took occasion to present, as succinctly as possible, the
points which I thought it most material for the interests of Canada should be treated in
the Report of the Committee, and disposed of by Parliament. I felt the more impera-
tively called upon to take this step at once, lest any answer of mine in the course of a
lengthened examination should give rise to misapprehension as regarded the claims of the
Phjvinoe. A copy of this letter was sent by me to the Provincial Secretary in my



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56 FINAL BEPORT OF CHIEF JUSTICE DRAPER.



despatch of the 5ih of June. I received on the evening of the 6th of Jane a note from
^r. Labouchere's private secretary, respecting my official letter of the 5th of June, to
"w^hich I replied on the following Monday, and I forwarded copies of those two notes in
my despatch to the Provincial Secretary of the 12th of June.

To this despatch I beg to make especial reference. It contains a reiumS of my
reasons for pressing the reference to the Judicial Committee ; a statement of the
boundaries, which, for the present, and without reference to the legal adjudication, I was
of opinion might answer ; as also a recapitulation of some of the proposals made by me
for dealing with the questions before the Committee and the Government.

On the 3rd of July I received a copy of the evidence taken before the Select
Committee of the House of Assembly, which I immediately transmitted to Mr. Labou-
chere, as chairman of the Committee. It is printed in the Appendix to the Report of
that Committee.

In the meantime (as I learned through private channels of information) the Attorney
and Solicitor-Generals had been called upon to report their opinion whether the Grown
could lawfully or constitutionally raise for legal decision all or either of the following
questions : 1. The validity, at the present day, of the charter of the Hudson's Bay
Company ; 2. The validity of the several claims of territorial right, of government, of
exclusive trade and taxation claimed by that Company ; 3. The geographical extent of
this territorial claim, supposing it to be well founded to any extent ; and, if the Crown
could do so, then to state the proper steps to be taken, and the proper tribunal to be
resorted to, and whether the Crown should act on behalf of the local Gove)mment of
Canada, as exercising a delegated share of the Royal authority, or in any other way;
and if the Crown could not properly so act, whether they saw any objections to the
questions being raised by the local Gk)vemment of Cauada, acting independently of the
Crown, or by some private party, in the manner suggested by the law officers in 1850 —
the Crown undertaking to bear the expense of the proceedings.

I was on the 11th of July favoured by Mr. Labouchere with a copy of the report
in reply, but the communication to me was marked " Private and Confidential " (8th July,
1857). A few days prior to its receipt, however, I addressed a letter to Mr. Labouchere,
again pressing for a reference and decision on the subject of boundaries. A copy of this
letter was transmitted by me to the Provincial Secretary on the 10th of July.

In reference to the opinion of the law advisers of the Crown, I cannot abstain from
remarking that it does not appear to me to meet the questions submitted. The general
question put was, whether the Crown could lawfully or constitutionally raise for l^al
decision,—!. The validity of the charter at the present day. 2. The validity of Uie
several claims of territorial right, of government, exclusive tntde and taxation, insisted
on by the Company. 3. The geographical extent of the territorial claim, supposing it to
be well founded to any extent.

1. As to the validity of the charter. The answer in fact is (if I do not misunder-
stand it), the Crown cannot justly raise this question, because, taking into consideration
the enjoyment that has been had under the charter, and the recognition made of the
right of the Company under various Acts, the judgment of any tribunal ought to be in
favour of upholding it, although, if principles which govern a charter of reoent date were
applied, it must be deemed invalid. With great submission, this appears to me to savour
much more of an opinion on what should be a result of a reference, than an opinion on
the power of the Crown to refer. And, if this be the true sense of the answer, then it
is difficult to avoid the reflection that such a determination, coming from a high and
impartial tribunal, would carry more weight and conviction with it than an opinion,
which, if followed, prevents such an adjudication being obtained. And the adoption
of that opinion by the Government becomes virtuMly an assertion by the Government
of the validity of the charter — while the argument, resting upon long enjoyment, and
parliamentary recognition, seems almost to involve the admission of its invalidity.

2. The answer to the second branch of the inquiry is open, as appears to me, to
similar objection. If it be admitted — and the opinion given involves the admission — that
rights of government, taxation, exclusive administration of justice, or exclusive trade,
cannot be legally insisted upon by the Hudson's Bay Company, as having been legally



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FINAL BEPORT OF CHIEF JUSTICE DRAPER. 67



granted by the Crown ; and if , as is notoriously the fact, the Hudson's Bay Company
liave assumed and asserted all these rights, the answer to the question put ou^ht, I
humbly conceive, to have been that the Crown could legally and constitutionally raise
this question for legal decision, instead of anticipating the judgment by an opinion that
the charter should not be deemed invalid, because it professes to grant those powers,
inaunuch as to a limited extent those powers may be lawfully used.

I cannot say the result of the reference, so far, was any matter of surprise to me.
On whatever grounds the opinion might be rested, I had, as I have already stated,
satisfied myself that there would be no facility aiSbrded for raising either of these
questions, taxd I was the more fully satisfied that I had taken a right course in submitting
a proposition which it was impossible to negative on any such reasoning as the report
contains in regard to the first two questions.

Even on that proposition, however, the opinion given hardly appears to me to a£Ebrd
a full answer.

I concede fully that the Crown could not, of its inherent authority, and by any
mere command, bring the Province of Canada and the Hudson's Bay Company, as two
contending parties, before the Judicial Committee of the Privy Council to submit their
respective claims for final decision. For this purpose the consent of both parties would
be indispensable. But I fail to perceive, and on this point the opinion throws no lights
that the Crown could not obtain the opinion and advice of the Judicial Commitl^ upon
ail the existing facts as to the boundaries between Canada and the territories of the
Hudson's Bay Company, supposing their claim *' to be well founded to any extent," and
that such opinion and advice might be made the foundation for determining those
boundaries, with the aid, if requisite, of a declaratory Act of Parliament. It has not yet
been denied on any hand that the Crown can legally and constitutionally take that course,
ami I continue to think this is a more safe and will be a more satisfactory mode of
determination than a quasi-judicial enquiry, in which the Province of Canada is to be
made to assume the position of a plaintiff in ejectment, and in that character to prove a
title to turn the Hudson's Bay Company out of an imaginary possession.

The Committee held their last sitting for the examination of witnesses on the 23rd
June. Their next meeting was on the 20th July, with closed doors, and so their meetings
continued until their report was finally adopted. Before this I had several interviews
with Mr. Labouchere, in which, among other things, the opinion of the law advisers of
the Crown was spoken of. These interviews, as I was informed by a letter of Mr. Under-
Secretary Merivale, rendered it unnecessary, in Mr. Labouchere's opinion, to address any
reply to my letter of the 8th July. The substance of what took place at these interviews
is contained in my last despatch to the Provincial Secretary. I felt it right to send a
copy of this letter without delay to Mr. Labouchere in order that he might be fully
aware in what light I viewed, and how I had understood, what passed between us. It
will be observed that Mr. Labouchere made no direct proposition to me founded on the
report of the law advisers of the Crown. On the contrary, so far as I could understand,
though I may be in error, I thought him much more desirous of seeing the points in
doabt or dispute settled by some compromise than of having them left for legal adjudica-
tion, while I represented that a determination of the rights conferred by the charter
would tend to f^ilitate the settlement of the other questions which were raised. I had
the opportunity of again pressing the necessity that I thought existed, that the authority
of the Hudson's Bay Company shoi^d at once be put an end to, over such portions of the
twritory as might be ceded to Canada. And I took occasion, when the question of
compensation to the Company was referred to, to state my unqualified opinion that
Canada would never consent to pay any portion of it.

The report of the Committee confirms my early impression of the opinions enter-
tained as to the future government of Vancouver's Island and the territory west of the
Rocky Mountains. The importance of Vancouver's Island seems to be fully estimated,
and the necessity of administering its government and providing for its settlement
otherwise than by the agency of the Company. That colony is also viewed as the most
coavenient head-quarters for settlements on the adjacent mainland, especially about
Frazer's Biver and Thompson's Biver (on or near which it is said there are indications of



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58 FINAL REPOBT OF CHIEF JUSTICE DRAPER.



gold), and generally as far as the Rocky Mountains. The distance, judging from maps,
and taking a direct line without reference to the difficulties of communication and
necessary divergencies, by rivers and lakes, are from Victoria, on Vancouver's Island, to
the junction of the IVazer and Thompson Bivers, 180 miles; thence to Fort Thompson,
80 miles ; thence to Mount Brown, 170 miles; thence to Red River, at Fort Oarry, near
900 miles ; and thence to Fort William, 300 miles, or 500 miles if the canoe route is
followed. The Frazer River empties itself opposite the south-easterly part of Vancouver's
. Island, a little to the north of the 49th parallel. The parts of this country best fitted by
climate and soil for agricultural settlement, as well as the points where it was asserted
gold had been discovered, were, according to the evidence of Mr. Cooper, situated upon
these rivers. They are also not far from the boundary line of Oregon. The greater
facilities of obtaining information and of speedy communications and intervention (if
intervention were necessary), from Vancouver's Island to these rivers and the country
they drain, had very great influence on the minds of those who were of opinion the
settlement and protection of these parts of the territory should be managed by the
Government of that Colony. On the other hand, there were those (and I understand
Mr. Roebuck to be strongly of that opinion) who thought that the territory lying
between the Province of Canada and the Pacific far too extensive to be united to Canada
and Vancouver's Island, but that it should be divided into several colonies to be settled
under the authority of the British Crown, with local Governments which might in time
form part of a confederacy of the British possessions on the North American continent^
maintaining their connection with the British Empire.

There were not wanting some who would have been disposed to cede to this Province
the territorial right of the Crown on condition that Canada should relieve Groat Britain
of all future charge of its government, defence and administration, and take upon its own
resources the burden of any arrangement which the claims of the Hudson's Bay Company
might give legitimate rise to. The express instructions I had in no way to pledge the
Province to incur any expenditure until the sanction of the Provincial Parliament was
obtained, was sufficient without any other reason to prevent my entering upon this topic,



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 13 of 86)