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PAPERS RELATING TO THE QUESTION OF THE OWNERSHIP OF THE PRECIOUS METALS WITHIN THE RAILWAY BELT. British Columbia. Legislative Assembly 1886

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 49 Vic. Precious Metals in Railway Belt. 361
PAPERS
RELATING to  the
QUESTION   OF   THE   OWNERSHIP   OF  THE   PRECIOUS  METALS
WITHIN   THE  RAILWAY  BELT.
Copy of a Report of a Committee ofi the Honourable  the Executive Council, approved by His
Honour the Lieutenant-Governor August 9th, 1884-
The Committee of Council have had under consideration a despatch dated the 15th July,
1884, addressed to the Honourable the Provincial Secretary and Minister of Mines, by A. W.
Vowell, Esq., the Gold Commissioner of Kootenay, in which that officer states in effect that
Mr. Redgrave (who is an officer of the Provincial Government and under the orders of Mr.
Vowell, and stationed at Kicking Horse Pass) hstd informed him that a gentleman named
Burgess, assuming to act as the deputy of the Honourable the Minister of the Interior, had
come to that locality and had published diagrams shewing the difference in character between
grants for quartz mining under the Dominion and United States regulations, and had publicly
stated that Mr. Redgrave was issuing gold miners' licences illegally, and that he, Mr. Burgess,
intended, with his deputy Mr. Pierce, to take charge of the twenty-mile belt, and that the
Province had no right whatever to the minerals.
The Committee, without assuming that Mr. Burgess was in any way authorized by the
Dominion Government to act as above stated, desire to call the attention of the Dominion
Executive to the action of that officer, and beg to express the opinion that the right to the
precious metals within the twenty-mile belt is not in the Dominion but in the Province, and
that the Province has the right, under the "Mineral Act, 1884" (British Columbia Statutes,
1884, No. 10), to grant free mining licences and to authorize the entry by free miners upon
lands within the belt, for the purpose of mining for the precious metals—subject to the provisions of section 23 of such Statute, and section 64 of the " Land Act, 1884 " (British Columbia
Statutes, 1884, No. 16).
There is nothing to indicate that in the granting of these lands it was intended to part
with the sovereignty of the Crown, as represented by the Province, or that any greater light
to the Dominion was conferred than the right of sale for railway purposes, or that the
Province intended to part with those rights of the Crown which, without being expressly mentioned, would not pass. If these lands had been separated from the Province, if they had
become part of the territory of the Dominion, then, it is conceded, the right to the precious
metals would not have remained in the Province. But as there has been no such separation,
and as the Crown as represented by the Dominion is not possessed of the sovereignty of these
lands, all prerogative rights remain in the Crown as represented by the Province.
An opposite conclusion would go far towards withdrawing the lands from the operation of
the Provincial Statutes relative to the acquisition of rights of way and water, and the like for
public and private purposes.
The Committee advise that a copy of this Minute, if approved, be dispatched to the Honourable the Secretary of State for Canada.
Certified,
(Signed)        Jno. Robson
Clerk Executive Council. 362 Precious Metals in Railway Belt. 1886
Extract from a Despatch dated Ottawa, 17th February, 1885.
" I have to inform you that by 45 Victoria, chap. 2 (B. C), British Columbia has made the
provisions necessary, under sections 54 to 57 of the Supreme and Exchequer Courts Act, to
give the Exchequer Court jurisdiction in respect to disputes between that Province and the
Dominion of Canada, with a right of appeal to the Supreme Court of Canada. I have accordingly to request you to invite the Government of British Columbia to agree upon a case with
reference to this matter, for the decision of the Exchequer Court.
" I have, &c,
(Signed)        " J. A. Chapleau,
" Secretary of State."
Copy of a Report ofi a Committee of the Honourable the Executive Council, approved by His
Honour the Lieutenant-Governor the 27th April, 1885.
The Committee of Council have had under consideration a Report, dated the 21st April,
1885, and attached hereto, from the Honourable the Attorney-General, upon the subject of
the right of the Province or of the Dominion to the precious metals within the railway belt.
The Committee advise that the Report in question be approved and adopted, and that a
copy thereof, and of this Minute, be forwarded to the Honourable the Secretary of State for
Canada.     , Certified,
(Signed)        Jno. Robson
Clerk Executive Council.
[Enclosure.]
The Attorney-General has the honour to report to His Honour the Lieutenant-Governor
in Council, in reference to a despatch to His Honour from the Honourable the Secretary of
State, dated the 17th day of February, 1885, upon the subject of the right of the Province or
of the Dominion to the precious metals within the railway belt, as follows :—
That it is advisable for the British Columbia Government to agree, as suggested in the
despatch, to a case to be submitted for the decision of the Exchequer Court. That in view of
the extreme probability of neither party being satisfied with the decision, which will be that
of a single Judge, it would conduce to the saving of time and expense that a formal decision
should be requested without argument, so that an appeal could at once be taken and full argument had before the Supreme Court of Canada. And regarding the decision of the last
mentioned tribunal, that this Government should invite the Dominion Government to consent
to and facilitate an appeal by this Government to Her Majesty's Privy Council, in the event
of the decision being adverse to the Province; this Government undertaking a corresponding
obligation to the Dominion in the event of the decision being adverse to it.
And that it would be expedient that it should be agreed between both Governments that,
pending a final decision, and for the purpose of promoting mining pursuits within the railway
belt and preventing conflict between individuals, and litigation, the law to govern the acquisition and method of working of the precious metals within the belt, and otherwise as to the
administration of such minerals, shall be taken to be the Statute Law of British Columbia.
The Attorney-General begs to suggest the following form of case :—
His Honour the Lieutenant-Governor of British Columbia affirms, and the Honourable
the Attorney-General for Canada denies—
1. That the precious metals in, upon, or under the public lands mentioned in section 2 of
the British Columbia Statute, 47 Vict., chapter 14, did not pass under that section, but remain
and are held by the Province, as representing Her Majesty, and that the law relating to the
acquisition of, and searching and mining for, such metals is that of the Province of British
Columbia.
2. That so far as the precious metals in, upon, or under such public lands are concerned,
the Mining Regulations to govern the disposal of Mineral Lands other than Coal Lands, sanctioned by (Dominion) Order in Council of the 7th of March, 1884, have no application.
(Signed)        Alex. E. B. Davie
Attorney-General's Office,
21st April, 1885 49 Vic. Precious Metals in Railway Belt. 363
The Secretary ofi State to the Lieutenant-Governor,
Ottawa, 20th June, .1885.
Sir,—With reference to previous correspondence upon the subject of the ownership of the
precious metals within the railway belt in the Province of British Columbia, I have the honour
to inform you that, in the opinion of His Excellency the Governor-General's advisers, it is not
necessary to refer to the Exchequer Court more than the one question of ownership, and with
that object in view a case has been prepared, a copy of which is enclosed for the consideration
of your Government.
I have also to state that the Law Officers of the Crown concur in the view of your
Attorney-General, as expressed in the report of that officer accompanying your despatch of the
28th of April last, that to save time a formal decision could be taken in the Exchequer Court
and an appeal at once had to the Supreme Court of Canada; and that they also agree with
the view of your Attorney-General, as contained in the same report, with respect to both
parties facilitating an appeal to Her Majesty's Privy Council in the event of either party
being dissatisfied with the opinion of the Supreme Court of Canada.
With respect to the present administration of laws respecting minerals so far as they
relate to the precious metals, I have to inform you that the Government of Canada will accede
to the suggestions of your Government upon the following conditions:—
1. That the claim of the Government of Canada in respect of the precious minerals
within the railway belt shall in no wise be prejudiced by this consent.
2. That if the claim of the Government of Canada in respect of the precious minerals
within the railway belt be upheld by the Courts, the Government of British Columbia shall
account to the Government of Canada for all its transactions in respect of such mineral lands
since the passing of the Settlement Act.
3. That in case the claim of the Government of Canada respecting the precious minerals
within the railway belt be upheld by the Courts, it is to be understood that no person acquiring
a mining claim within the railway belt under and in accordance with the agreement to be
made between the Government of Canada and the Government of British Columbia, as suggested by the Attorney-General, whether such claim be acquired by Letters Patent, or by
lease or otherwise, shall be deemed to have acquired any greater, or less, or other title whatever to the said land or the minerals therein, than he would have acquired under the regulations made by His Excellency the Governor-General in Council for the disposal of mineral
lands the property of the Government of Canada, other than coal lands, and that granting
mining rights within the railway belt pending the decision of question at issue the Government
of British Columbia shall take the necessary steps to inform all claimants of these conditions.
I have, <fec,
(Signed)        J. A. Chapleau,
Secretary of State.
In the Exchequer Court.
Between the Attorney-General of Canada
and
The Attorney-General of British Columbia.
Special Case.
The Attorney-General of Canada alleges and the Attorney-General of British Columbia
denies that the precious metals in, upon, and under the public lands mentioned in sec. 2 of the
Act of the Legislature of British Columbia, 47 Vic, chap. 14, intituled "An Act relating to
the Island Railway, the Graving Dock, and Railway Lands of the Province," are vested in the
Crown as represented by the Government of Canada, and not as represented by the Government of British Columbia; and a controversy having arisen in respect thereof, the same is
submitted for the decision of the said Court, pursuant to the provisions of " The Supreme and
Exchequer Court Act," and the Act of the Legislature of British Columbia, 45 Vic, chap. 2,
intituled "An Act to amend the Act respecting the Supreme Court of Canada and the
Exchequer Court of Canada." 364 Precious Metals in Railway Belt. 1886
Copy of a Report of a Committee of the   Honourable   the   Executive   Council,  approved  by
His Honour the Lieutenant-Governor July 11th, 1885.
The Committee of Council, having had under consideration a report dated 3rd July, 1885,
and attached hereto, from the Honourable the Attorney-General, upon the subject of the
ownership of the precious metals within the railway belt, advise that the same be approved and
adopted, and that a copy thereof, and of this Minute, be forwarded to the Honourable the
Secretary of State for Canada.
(Signed)       Jno. Robson,
Clerk Executive Council.
[Enclosure.]
The Honourable the Attorney-General begs to submit to His Honour the Lieutenant-
Governor in Council the following report concerning a despatch dated the twentieth day of
June, A. D. 1885, addressed by the Honourable the Secretary of State for Canada to His
Honour the Lieutenant-Governor upon the subject of the ownership of the precious metals
within the railway belt.
1. The advisers of His Excellency the Governor-General do not deem it necessary to refer
to the Exchequer Court more than the one question of ownership. The Attorney-General
advises that the Government of Canada be requested to reconsider this limitation. It is true
the main question is that of ownership, yet a, very material question arises in addition. By
the Dominion Mining Regulations, VI. 68-75, provision is made for the hearing and decision
of disputes between individuals in regard to mining property. Assuming, for the sake of
argument, the Dominion to be right in the contention that the precious metals do not remain
vested in the Province, the Province would still hold the view that the mining regulations
referred to provided for the (in part) administration of justice in the Province, and the constitution and procedure of courts of important civil jurisdiction, and that such provision cannot
be made by Dominion authority, but must be regulated by Provincial law, and that the
existing Provincial mining laws establish the proper tribunal.
The Attorney-General submits that it would be well to have this question, connected as
it is with the other, referred to the Exchequer Court instead of having again to deal with it,
should the decision on the main point be adverse to the Province.
2. As a condition to the provisional arrangement the Dominion Government seeks to
stipulate that in the event of Dominion success the Government of British Columbia should
account to that of Canada for all its transactions in respect of such mineral lands since the
passing of the Settlement Act. The Attorney-General considers there can be no objection to
this stipulation if it be also agreed that in taking the account proper allowance be made in
respect of the cost and expenses of administration, including the opening and construction of
such roads and trails within the railway belt as may be required for the purpose of facilitating
mining enterprises. The Attorney-General mentions roads and trails because quite recently
discoveries of valuable quartz lodes have been made in lands on the Big Bend of the Columbia
River contiguous to the railway belt, and it is not unlikely they may lead to the finding
of other lodes within the belt, and as mines are discovered or developed means of communication
should rapidly be provided.
3. The Government of Cauada desires also to stipulate that in the event of its success no
person acquiring under the provisional arrangement a mining claim within the railway belt
shall be deemed to have acquired any greater, or less or other, title whatever to the lands or
other minerals therein than he would have acquired under the Dominion Mining Regulations,
and that in granting mining rights within the railway belt pending the decision the Government
of British Columbia shall take the necessary steps to inform all claimants of these conditions.
The Attorney-General begs to state that in view of the Provincial law regulating mines
and mining being fixed by statute, and the Province being bound to account in the event of
Dominion success, there can be no object in making a stipulation which would create uncertainty
as to the extent and mode of locating claims, and especially as to the boundaries of quartz
claims, both upon and beneath the surface. A comparison of Dominion Mining Regulations 1,
Quartz Mining Rule 3, with Section 64 of the British Columbia Mineral Act, 1884, will show
how impracticable would be such a stipulation, and how it would tend, by creating uncertainty,
to prevent the undertaking or prosecution of quartz mining. It was with a view of avoiding
such uncertainty that the provisional arrangement was proposed. 49 \ic. Precious Metals in Railway Belt. 365
4. The Attorney-General begs to submit the following as a draft of a special case to be
submitted to the Exchequer Court of Canada:—
In the Exchequer Court.
Between the Attorney-General of Canada
and
The Attorney-General of British Columbia.
The Attorney-General of Canada alleges and the Attorney-General of British Columbia
denies:—
1. That the precious metals in, upon, and under the public lands mentioned in sec. 2 of
the Act of the Legislature of British Columbia, 47 Vie, chap. 14, intituled "An Act relating
to the Island Railway, the Graving Dock and Railway Lands of the Province," are vested in
the Crown as represented by the Government of Canada, and not as represented by the
Government of British Columbia.
2. That the mining regulations to govern the disposal of mineral lands other than coal
lands sanctioned by (Dominion) Order in Council of the seventh day of March, one thousand
eight hundred and eighty-four, apply to the precious metals in, upon,' and under such public
lands.
Controversies having arisen in respect of the premises they are submitted for the decision
of the said Court pursuant to the provisions of "The Supreme and Exchequer Court Act,"
and the Act of the Legislature of British Columbia, 45 Vic, chap. 2, intituled "An Act to
amend the Act respecting the Supreme Court of Canada and the Exchequer Court of Canada."
Alex. E. B. Davie,
Attorney-General.
Victoria, B. C, 3rd, July, 1885.
Receipt of the above was acknowledged by the Honourable the Secretary of State for
Canada in a despatch to His Honour the Lieutenant-Governor, dated 25th July, 1885.

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