CROWN LAND GRANTS A HISTORY OF THE ESQUIMALT AND NANAIMO RAILWAY LAND GRANTS, THE RAILWAY BELT AND THE PEACE RIVER BLOCK W.A. Taylor, B.C.L.S. 1975 Crown Land Registry Services Ministry of Environment, Lands and Parks Victoria British Columbia 4th Reprint, 1997 3rd Reprint, 1993 2nd Reprint and Edit, 1991 1st Reprint, 1981 Sections on Mineral and Water Rights amended in 1977 to reflect change in statute and opinion. W.A.T. Canadian Cataloguing in Publication Data Taylor, W. A. Crown land grants Prepared by W. A. Taylor. Previously published as: British Columbia Surveys and Mapping Branch. An outline of events pertaining to the creation of the Esquimalt and Nanaimo railway land grants, the railway belt and the Peace River block with reference to documents affecting the administration of land, roads, water and minerals. 1975. ISBN Ø-7719-8633-5 1. Railroad land grants - British Columbia. 2. British Columbia - Public lands. 3. Esquimalt and Nanaimo Railway. 4. Mining law - British Columbia. I. British Columbia. Surveys and Mapping Branch. An outline of events pertaining to the creation of the Esquimalt and Nanaimo railway land grants, the railway belt and the Peace River block with reference to documents affecting the administration of land, roads, water and minerals. II. British Columbia. Ministry of Lands, Parks and Housing. III. Title. HE2807.T38 1981 333.33'6'09711 C81-092234-7 TABLE OF CONTENTS PAGE Esquimalt and Nanaimo Railway Company Land Grant.............................................2 Clause 11, Terms of Union.........................................................................................2 Map of the E & N Railway Company Land Grants 1884 - 1925 .................................3 Esquimalt & Nanaimo Railway Act, 1875 ...................................................................4 First Land Grant - Settlement Act, 1884.....................................................................5 Vancouver Island Settlers' Rights Act, 1884...............................................................7 Second Land Grant, 1905 ..........................................................................................8 Vancouver Island Settlers' Rights Agreement Ratification Act, 1910 .................8 Third Land Grant - 1913.............................................................................................9 Fourth Land Grant - 1925 - (Foreshore and Coal)....................................................10 Boundaries of the 1st and 2nd Grants......................................................................10 Mineral Rights ..........................................................................................................11 Water Rights ............................................................................................................13 Railway Right of Way ...............................................................................................14 Acknowledgement....................................................................................................15 Railway Belt and Peace River Block ........................................................................16 Map of the Railway Belt............................................................................................17 Map of Peace River Block ........................................................................................18 Precious Metals and the Crown's Rights Therein.....................................................19 Railway Belt Act, 1895 - (Boundaries of Belt)...........................................................26 Railway Lands..........................................................................................................36 Allowance for Roads, Privy Council Order #1887 of 1877........................................36 Allowance for Roads, Privy Council Order #1509 of 1918........................................37 Ownership of Beds of Non-Navigable Water............................................................39 Navigability at Law ...................................................................................................41 ESQUIMALT AND NANAIMO RAILWAY CO. LAND GRANT The chronological events pertinent to the establishment of the E & N Grant(s) referred to here are only those which contribute to the jurisdiction and ownership question. What seemed like a simple agreement - start the railway within two years (and as it only took three years to build the whole thing it should have been over in 1876) developed into a frustrating attempt by the province to get the best deal possible for the settlers. They continued their efforts for 49 years! The purpose of the railway was to serve and develop settlement, yet the Dominion Government, which really was only the agent in trust, apparently attempted to interpret the agreement from a very early date, to favour the yet unsecured contractor. This caused the loss by settlers of their subsurface rights to coal and base metals. During the period prior to the establishment of the E & N Belt the colony of Vancouver Island and then the province had been continually making surveys in the districts as far north as Cranberry. The Chief Commissioner of Lands and Works reported to the Legislature, 9th February 1885 that he had made arrangements with the E & N Railway Co. to continue making the surveys. May 16, 1871 - The Terms of Union (as provided for in the British North America Act of 1867) which admitted the colony of British Columbia into the Dominion of Canada specified as one of its conditions the construction of a railway. CLAUSE 11 - TERMS OF UNION "11. The Government of the Dominion undertake to secure the commencement simultaneously, within two years from the date of the Union, of the construction of a railway from the Pacific towards the Rocky Mountains, and from such point as may be selected, east of the Rocky Mountains, towards the Pacific, to connect the seaboard of British Columbia with the railway system of Canada; and, further, to secure the completion of such railway within ten years from the date of the Union. And the Government of British Columbia agree to convey to the Dominion Government, in trust, to be appropriated in such a manner as the Dominion Government, may deem advisable in furtherance of the construction of the said railway, throughout its entire length in British Columbia (not to exceed, however, twenty (20) miles on each side of the said line) as may be appropriated for the same purpose by the Dominion Government from the public lands in the North- west Territory and the Province of Manitoba: Provided that the quantity of land which may be held under pre-emption right or by Crown grant within the limits of the tract of land in British Columbia to be so conveyed to the Dominion Government shall be made good to the Dominion from contiguous public lands; and provided further that until the commencement, within two years, as Page 2 MAP OF THE E & N RAILWAY COMPANY LAND GRANTS 1884 – 1925 Page 3 aforesaid, from the date of the Union, of the construction of the said railway, the Government of British Columbia shall not sell or alienate any further portions of the public lands of British Columbia in any other way than under right of pre-emption, requiring actual residence of the pre-emptor on the land claimed by him. In consideration of the land to be so conveyed in aid of the construction of the railway, the Dominion Government agree to pay to British Columbia, from the date of the Union, the sum of 100,000 dollars per annum, in half-yearly payments in advance." The "seaboard of British Columbia" was the controversial phrase, whether it meant a terminus at Burrard Inlet or whether the railway was to cross Seymour Narrows and proceed southerly on Vancouver Island to Esquimalt. In order to facilitate the most advantageous result that the province could expect from the bitter discussions which ensued, a reserve was established as identified below. 1874 - B.C. Gazette, July 18th, page 139 "a strip of land Twenty Miles in width along the Eastern Coast of Vancouver Island between Seymour Narrows and the Harbour of Esquimalt, is hereby reserved." Note: This description, of course, was never used in the conveyance but it did effectively prevent further alienation until the final settlement by the Settlement Act of 1883. ESQUIMALT AND NANAIMO RAILWAY ACT, 1875 The Dominion made a definite statement that Esquimalt would be the terminus and the Provincial Legislature passed an Act to authorize the grant of certain public lands to the Government of Canada, for railway purposes. This Act became known as the Esquimalt and Nanaimo Railway Act of 1875. The land described was a strip not to exceed 20 miles in width on either side of the line between the Town of Nanaimo and Esquimalt Harbour. The idea of the railway crossing at Seymour Narrows was abandoned at this point. The Dominion initiated a bill to authorize construction. However, it was defeated in the Senate and the construction of the line and conveyance of the land did not proceed. Although it was a Dominion Government responsibility to arrange the construction of the railway, because of the long delay the province attempted to contract with the Vancouver Land and Railway Co. (Lewis Clement) and also the Victoria, Esquimalt and Nanaimo Railway Co. (Robert Dunsmuir) to commence construction, but could not get acceptable guarantees from either company. Page 4 Settlers continued to move into the reserved lands and expected eventually to get a grant. The 1875