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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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 29 of 86)
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Ist. That Canada should undertake the duties and obligations of Government and
legislation in respect of those territories.

2nd. That tlie legal rights of any corporation, company, or individual within the
territories should be respected, and that provision should be made for that purpose by
placing those rights under the protection of courts of competent jurisdiction.

3rd. That the claims of the Indian tribes to compensation for lands required for
purposes of settlement should be considered and settled, in conformity with the equitable
principles which have uniformly governed the British Crown in its dealings with the
aborigines.

The above were the only terms and conditions which, in the opinion of the Canadian
Parliament, it was expedient to insert in the Order in Council, authorized by the 146th
section.

His Grace the Duke of Buckingham and Chandos, on receiving the address of the
Canadian Parliament, consulted the law officers of the Crown, who advised, among other
things, that " there would be much difficulty created by the existence of the charter " of
the Hudson Bay Company, ** to putting into execution the powers of the 146th section
of the British America Act, 1867, assuming that the Hudson's Bay Company were adverse
to the union."

A Bill was thereupon carried through the Imperial Parliament, apparently to remove
the " difficulties " which the law officers had discovered. It reverses the order of procedure
contemplated by the Act of 1867, and observed by the Canadian Parliament in its address,
and makes the assent of the Company a condition precedent to the transfer.

The Canadian Government were not consulted as to the terms of this Act ; they could
not understand why it was necessary, and greatly doubted the expediency of passing it.

The Duke of Buckingham and Chandos, having opened negotiations with the Hudson's
Bay Company under the authority of the Act last mentioned, invited a delegation from
the Canadian Government to conier with him in this country. The undersigned, duly



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POSITION OF THE CANADIAN GOVERNMENT ON THE QUESTION. 167



^commissioned for that purpose, repaired to London in October last, and had frequent
interviews with his Grace before his retirement from office.

The proposals submitted bo the Company by the late Government in the letter of Mr.
Adderley of the 1st December last, were not made at our suggestion, although we were
disposed to think (and so informed his Grace) that if the Company accepted them, the
Canadmn Parliament might be persuaded to undertake the duties of legislation and
government in the territories on the conditions specified.

The Company, through Sir Stafford Northcote, have declined to accept either the
principle or the mode of settlement proposed by the late Government, but suggest a new
mid summary method of closing the negotiations, by demanding that the Canadian.
Oovemment should, by a payment in cash or bonds, " complete the purchase of the terri-
tory at once." No sum is mentioned, and no data given from which it can be inferred.
Under these circumstances, we are asked, as representatives of the Canadian Government,
to communicate to Earl Granville any observations we may wish to offer on this reply and
proposition of the Company.

His Lordship will readily perceive from the foregoing recital, that, as representatives
of the Canadian Government, we are in the position of spectators of a negotiation, begun
^d carried on upon principles and under conditions to which we are strangers, rather than
that of assenting principals, responsible for its initiation, and bound by its results.

Without undertaking, therefore, that our views on every point will be approved by
the Canadian Government, we proceed most respectfully to offer a few observations on Sir
Stafford Northcote's reply to the recent proposals of the Imperial Government.

It will be observed that two things are assumed in these proposals to the Company,
which the Canadian Government have always disputed.

1 St That the charter of Charles II. is still valid, and grants the right of soil, or
freehold, of Rupert's Land to the Company.

2nd. That Kupert's Land includes the so-called ^' Fertile Belt," extending from the
Lake of the Woods to the Rocky Mountains.

The law officers of the Crown in England have, on two or three occasions, given their
opinion in favour of the first assumption, but never, so far as we are aware, in favour of
the second. The report of the law officers in 1857 admits that the geographical extent of
the territory granted must be determined by excluding the country that ^^ could have been
rightfully claimed by the French as falling within the boundaries of Canada " (which the
<^rter itself excludes by express words), and states that ''the assertion of ownership on
important public occasions, as at the treaties of Ryswick and Utrecht," should be consi-
dered ; and also " the effect of the Acts of 1774 and 1791." The most recent opinion of
the law officers of the Crown which we have seen (January 6th 1868), as to the rights of
the Hudson's Bay Company, does not even by implication support their present claim to
the fee simple of nearly one-third of the American continent. On the contrary, Sir John
Karalake and his colleagues conclude their report with the emphatic statement that it is
*' very necessary, before any union of Rupert's Land with Canada is effected, that the
true limits of the territory and possessions held under the charter should be accurately
defined." An assumption, therefore, which covers so much ground, and is unsupported
^j any competent legal authority ; which ignores the repeated protests and claims of
Canada ; and seeks to supply a ba^ upon which a surrender for valuable consideration
may be made, — is, to say the least, a most favourable assumption for the Company. We
notice these pointis in Mr. Adderley's letter before remarking on Sir Stafford Northcote's
reply, to prevent the possible inference that we have acquiesced in them.

Sir Stafford Northcote assures Lord Granville that the Company ** continues sincerely
Anxious to promote the object with a view to which the Company was reconstructed five
and a-half years ago, viz., the gradual settlement of such portions of their territory as
admit of colonization." It would be tedious to quote the numerous and positive averments
by members and governors of the Hudson's Bay Company, in the course of official inquiries
during the last fifty years, that their territories (in which they included the Red River
And the Saskatchewan districts) are totally unfit for colonization. The evidence of Sir
George Simpson before the House of Commons Committee of 1857, is a fBir sample of
the views heretofore entertained and avowed by the representatives of the Company.



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158 C-^ADIAN DELEGATES IN REVIEW OF PROPOSED TERBfS OF TRANSFER. 1869 :



Vide Commons Report, 1857 ; Questions 716, 717, 718, 719, etc.) Mr. ElHce, for many
years the ruling spirit of the Company, declared before the same Committee that the Red
Itiver settlement was an '' unwise speculation," and " had failed ; " that ^* the climate is
not favourable ; " that the Saskatchewan is a country capable of settlement only when
'^ the population of America becomes so dense that they are forced into situations less fit
for settlement than those they occupy now ;" that the winters are ** rigorous," and the
country badly off for « fuel," etc. (Questions 5840 and 5847.)

With such views of the unfitness of the country for settlement, and avowing their belief
that colonization and the fur trade could not exist together, it b not surprising that the
Company have always cherished the latter, which was profitable, and discouraged, and, as
far as possible, prevented the former, which had proved an " unwise speculation." It is
true that the Company was " re-constructed " in 1863, with loud promises of a new policy.
A great road across the continent was to be made, a telegraph line was to be put up, and
emigration and colonization developed on a large scale. The Duke of Newcastle, then
Secretary of State for the Colonies, was so much impressed by the zeal and public spirit of
the gentlemen who effected the reconstruction, that he wrote despatches to the Canadian
Government on their behalf, and evidently believed that a new era was about to open in
the North-West, and the wild animals and fur traders retreat before the march of
" European " settlers. The stock of the old Company, worth in the market about
j61, 000,000, was bought up, and by some process which we are unable to describe, became
£2,000,000. A show of anxiety to open postal and telegraphic communication was made^
and *' heads of proposals " were submitt^ to the Governments of Canada and British
Columbia, which on examination were found to embrace a line of telegraph only, with the
modest suggestion that the two Governments should guarantee the company a profit of
not less thwi 4 per cent, on their expenditure ! A proposal so absurd could only have
been made to be rejected, and it was rejected accordingly. The surplus capital of the
reconstructed Company, which was called up for the avowed purpose of opening their
territories to ** European colonization, under a liberal and systematic scheme of land
settlement," has never been applied to that purpose. Five and a half years have passed
since the grand scheme was announced to the world, but no European emigrants have
been sent out, no attempts to colonize have been made. Sir Stafford Northcote was not
probably aware, when he vouched for the bona Jides of the Hudson's Bay Company as
promoters of colonization, that a solemn vote of the shareholders was taken in the month
of November, 1866, which condemned and rejected the policy of colonization, absolutely
and definitively.

While unable, for the reasons stated, to concur in Sir Stafford Northcote's assurance
that the Hudson's Bay Company are anxious to promote colonization, we are gratified to
learn that they *' adhere" to the resolution of 28th August, 1863, that the time has come
when it is expedient that "the authority executive and judicial over the Red River Settle-
ment and the south-western portion of Rupert's Land, should be vested in officers deriving
such authority directly from the Crown."

The first remark we have to make upon this reference to the resolution of 1863 is,
that it admits the continued incapacity of the Company as a governing ipower ; the second,
that if this was true in 1863, — if at that time it had become expedient to substitute the
authority of the Crown for that of the Company, — it is much more expedient if not
absolutely necessary, now ; and third, that if the Company are to be relieved of the duty
and cost of government which their charter imposes, and which they admit they do not
and cannot properly discharge, compensation should be made, not to the Company, as is
claimed, but by the Company to those who take the burden off their shoulders.

We confess we have failed to discover any evidence, and therefore cannot believe,
that the Company have " cheerfully " accepted the decision of Her Majesty's Government,
" that the whole of the Company's territory should, under proper conditions, be united
with Canada." A brief notice of the acts, in contrast with the professions of the Com-
pany, will, we think, account for the ill success of our researches and justify our
incredulity.

The representatives of the Company, while declaring before the House of Commons
Committee in 1857 (as we have already shown) that their territories were " unfit for



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POSITION OF THE HUDSON'S BAT COMPANY IN THE MATTER. 15&



settlement," professed their readiness to surrender any portion of them that might be
desired by the Imperial or Canadian Government for that purpose.

Mr. Ellice declared in the most unqualified terms, not only that the Company was
willing to surrender, but that it was the duty of the Government to see that no mere
trading corporation obstructed **for one moment," nor to the extent of " one acre of land
fit for settlement," the "dominion of the actual settlers." (Commons Keport, 1 857 ;
questions 5859, 5860 and 5933.)

The Governor of the Company informed the Colonial Secretary (18th July, 1857,)
that an inquiry into the " geographical extent of the territory granted by their charter,"
which the law officers had recommended, was of little importance, because, if the object
of the inquiry was " to obtain for Canada land fit for cultivation and the establishment of
igricultural settlers, the Directors are already prepared to recommend to the shareholders
of the Company to cede any lands which may be required for that purpose. The terms of
such cession," he assured Mr. Labouchere, " would be a matter of no difficulty between
Her Majesty's Government and the Company."

Mr. Ellice had previously told the House of Commons Committee, that the question
of boundaiy was ** of no importance at all," because " if the Province of Canada requires
any part of the territory, or the whole of it for purposes of settlement, it ought not to be
permitted for one moment to remain in the hands of the Hudson's Bay Company." He added
that " less money than would be spent in a litigation upon the subject would be sufficient
to indemnify the Hudson's Bay Company for any claim which they could have on giving
up any disputed part of their territory."

These assurances induced the Committee to negative propositions for ascertaining by
a judicial inquiry the validity of the charter, or the position of boundaries, and to report
in &vour of annexing to Canada " such portion of the land in her neighbourhood as may
be available to her for the purposes of settlement, with which she is willing to open and
maintain communication, and for which she will provide the means of local administra-
tion." The Committee "trusted " that there would be "no difficulty in effecting arrange-
ments as between Her Majesty's Government and the Hudson's Bay Company " for ceding
the territory on " equitable principles."

It may be proper to remind Earl Granville, that leading members of the Committee
of 1857, taking the offers of the Company on the subject of colonization to mean what the
language of their representatives imported, strongly opposed the recommendation to leave
the question open for " amicable adjustment " upon " equitable principles," with the cer-
tain^ of protracted negotiation and a chance of ultimate disagreement. Mr. Gladstone
accordingly submitted resolutions for a prompt and definitive settlement of the whole
question. He proposed —

Ist. <* That the country capable of colonization should be withdrawn from the juris-
diction of the Hudson's Bay Company."

2nd. '* That the country incapable of colonization should remain within their juris*
diction."

He proposed that in the country remaining within their jurisdiction power should be
reserved to Her Majesty's Government to make grants " for the purposes of mines and
fineries, but with due regard to the immunities and trade of the Company." No '' im-
munities " were even suggested with respect to the country which was to be withdrawn
for colonization. He proposed to ignore the charter, by declaring that the jurisdiction of
the Company "should rest henceforth upon the basis of Statute." He quoted the
Governors letter above referred to, " as an expression of the willingness of the Company
to accept in principle the arrangement " he proposed, and ended with the suggestion that,
"as the Company had tendered concessions which may prove sufficient to meet the case,"
no decision seemed necessary as to the question of raising '* a judicial issue with the view
of ascertaining the legal rightfl of the Company." The propositions of Mr. Gladstone were
only lost in the Committee by the casting vote of the chairman.

Twelve years have passed since these offers were made by the Company and accepted
hy a committee of Parliament. Every Colonial Secretary, from 1858 to the present mo-
ment, has attempted to carry out the recommendation of the Committee, with the assent of



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160 CANADIAN DELEGATES IN REVIEW OF PROPOSED TERMS OF TRANSFER, 1869:



the Company, but without success. Two Acts of the Imperial Parliament have been passed,
with provisions to facilitate the arrangement, but are yet without fruit Sir Edward
Bulwer Lytton characterized the offers of the Company during his administration as
" illusory," and declared that they " by no means met the exigencies of the case." He
expressed his regret at a determination on their part which " retains the veiy difficulty
in the way of speedy and amicable settlement which he had sought to remove," and stated
that if Canada declined to resort to " legal proceedings " (which he had recommended) "it
would be his duty to consider whether negotiations with the Company can be resumed or
whether in the last resort Her Majesty's Government must take the matter into their
own hands and proceed on their own account." (Mr. Meri vale's letter to H. H. Berens,
dth March, 1859.) Sir Edward remained in office long enough to put an end to the
Company's license of exclusive trade in British Columbia and the Indian territories, but
Aot long enough to carry out his policy of " connecting the two sides of British North
America without the obstacle interposed by a proprietary jurisdiction between them."

The Duke of Newcastle opened negotiations with the Company, in 1863-4 with much
vigour. But after various proposals and counter-proposals including the ** reconstmo-
iion " of the Company, he was obliged to treat their propositions as '* inadmissible."

Mr. Cardwell, during his administration, could not accept their proposals ^' without
^considerable modifications."

The Duke of Buckingham, after many discussiorus with the representatives of the
Company, regretted to perceive that their proposals " did not afford much prospect of an
iirrangement being come to ;" and in the communication to which the letter of Sir Stafford
Northcote is a reply, declared himself " unable to recommend the adoption " of the terms
demanded by the Company.

Our notice of what, in Sir Stafford Northcote's opinion, constitutes a " cheerful "
acceptance of the decision of Her Majesty's Government, would be incomplete, if we did
not remind Earl Granville that the Company's "proper conditions" for the surrender of
that portion of the North- Western Territories, for which they can show no title but such
AS may be derived from the possession of a few trading posts, established there within the
last fifty years, rose from a question of "no importance at all" in 1857, or at most, of
" less money than would be spent in a litigation on this subject," ^House of Commons
Heport, Question 5834,) to the retention, in 1863, in fee simple, of hcUf the land proposed
to be surrended, with various other conditions, including a guarantee by the Governments
•of Canada and British Columbia of an annual profit on the Company's expenditures for
improvements on their own property ! In 1864 these conditions took the form of a
demand, first, to bo paid £1,000,000 sterling from sales of lands and mines, with large
reservations "to be selected by them," etc.; and, secondly, to be paid £1,000,000 sterling
in cash, with other terms and reservations favourable to the Company.

In 1868 these conditions for the surrender of territorial and governing rights over
the whole territory remained at £1,000,000, as in the first proposition of 1864, with large
reservations of land at " selected " points, specially exempted from taxation, and with full
liberty to carry on their trade free from the export and import duties to which all other
subjects of Her Majesty in that country would be exposed.

In 1869 these various proposals, which no Secretary of State could possibly enter-
tain, have all been apparently merged in one grand proposition to sell out " the territory at
once for a sum of money," in cash or bonds, the amount of which is not stated.

We content ourselves under this head with the observation, that whatever others
may be able to see in all these transactions, we are utterly unable to discover either a
<;heerf ul acceptance of the decision of any government, or an honest dii^position to fulfil
the solemn pledges made to Parliament in 1^57, on the faith of which the Company was
unquestionably saved from judicial or legislative extinction.

Sir Stafford Northcote claims credit for the Company because they have " declined
to encourage overtures which have been made to them by private persons for the purchase
of portions of the Company's territory with a view to their colonization." Our informa-
tion is (and we can give Earl Granville names and dates, if the point is deemed of any
importance) that the only " overtures " of the kind mentioned which the Company have
xeceived, were not merely " encouraged," but suggested and concocted by prominent mem-



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STATEMENT OF THE FEENCH TITLE TO THE NOBTH-WEST TEBRITOEIES. 161



hen of the Company, for the purpose of producing an impression on the Crovemment^
and with a view, not to colonization, but to negotiation and the stock market

We are not sure that we understand the statement of Sir Stafford Northcote that
the Company ** have taken no step which would give rise to fresh complications or place
ahj new difficulty in the way of the admission of their territory into the Confederation."
The sale of land to private parties for colonization (assuming that bonajide offers have
been received from such parties) could not give rise to much complication, except in the
aiedrs of the Company. If Sir Stafford hints at the negotiations which were lately
reported to be going on with certain American speculators in London for denationalizing
and Americanizing the Company with a view to the " admission of their territory " into the
United States, instead of the Confederation, we respectfully submit that while such a
difficulty might indeed be " new," the proper person to solve it would be Her Majesty's
Attorney-General with the aid of a court and jury of competent jurisdiction.

We do not understand that Earl Granville expects us to defend in detail the Duke
of Buckingham's proposals, or to answer all the objections made to them by Sir Stafford
Northcote. The Government of Canada, as we have already reminded his Lordship^
neither suggested the Act of Parliament nor the terms of the negotiation, which the late
Secretary of State for the Colonies attempted to carry out under its authority. The Cana-
dian plan of dealing with the question of the North- Western Territory and Rupert's Land
is set forth in the address of the Canadian Parliament to Her Most Gracious Majesty, and we
do not feel at liberty, as representatives, to suggest any other mode, until we are informed
hj Her Majesty's Government that the one proposed is deemed impracticable.

Sir Stafford Northcote's suggestion that '^ the payment of a sum of money " for the
{Hurchase of the territory would conduce to a more satisfactory result, is, we believe, the
point upon which Earl Granville specially desires to have our views. Assuming that by
^territory" he means the w?iole territory to which the Company lay claim, and that they
are to continue as a trading corporation, retaining their posts, and allotments of land in
their neighbourhood, as he states was agreed upon by the Duke of Buckingham and Lord
Kimberley, we have to observe: —

1. This proposition involves an abandonment of the principle which two Secretaries
of State (and it must be presumed, two successive administrations), declared, after much
consideration, and in view of the transactions of 1857, was properly and justly applicable
to this case, viz. : That the compensation should be derived from the future revenue of
^e territory itself, and payable only as it came into the hands of Government. This
principle was also accepted by the Company in their communication of 13th April, 1864.

2. On the other hand, the principle of ascertaining and fixing a money value upon
Ae territoral rights of the Company " in the British territory east of the Rocky Mountains
and north of the American and Canadian lines," and of extinguishing those rights by a
payment " at once," was suggested, in 1865, by a delegation from the Canadian Govern-
ment of that day, and assented to by Mr. Cardwell, then Secretary of State for the
Oobniefl, and his colleagues.

If the latter principle and mode of settlement is now to be adopted, it is obvious that



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 29 of 86)