A Tale of Two (or Three?) English Colonies
As I made the transition from being primarily a civil litigator dealing with Aboriginal issues to primarily a research lawyer opining on historical Indigenous claims to land in British Columbia, I remember my astonishment in discovering that British Columbia used to be a colony of England. In fact, before British Columbia became a Canadian province - four years after the creation of Canada in 1867 - it was two (and arguably three) different English colonies. Each of these colonies had its own constitutional structure, government, and laws.
The Colony of Vancouver's Island, 1849-1866
The Colony of Vancouver's Island (previously called by Europeans Quadra and Vancouver's Island and later, of course, simply Vancouver Island ) had what we might call today a "soft opening".
In January 1849, fearful of American designs on its claimed sovereignty over territory north of the 49th parallel and Vancouver Island (not all of which is north of the 49th parallel), Britain decided to grant Vancouver Island to the Hudson's Bay Company, along with an obligation to promote British settlement. (How Britain obtained - or didn't - the right to grant the island is another story...)
A mid-1849 British Colonial Office document explains the soft opening: while the British Crown had granted the land of Vancouver Island to the HBC, the grant contained no provision respecting the island's government, meaning that "[t]he power of the Crown in this respect, therefore, remains the same as in the case of any other settlement formed by British subjects. And it is proposed to issue a Commission and Instructions [to the governor], under which the Legislature of the island will consist of a House of Assembly elected by the freeholders owning land to the extent of [blank space] acres and a Council nominated in the usual manner by the Crown."
Thus, seven months after the British Crown granted the land of Vancouver Island to the HBC, it made "provision for the Government of the Settlement, or Settlements so to be formed in the said Island," by appointing Richard Blanshard as "Our Governor and Commander-in-Chief in and over Our Island of Vancouver and the Islands adjacent between the 49th and 52nd degrees of North latitude." The first time that Blanshard's "Commission" refers to Colony it is in giving him the authority "to make and enact all such Laws and Ordinances as may from time to time be required for the Peace, Order and good Government of the said Colony" - as if the Colony had already come into being.
Contrary to its sister colony on the mainland, then, this Colony had no specific organic legislation establishing either the colony or its government. It was what was known as a "settled colony".
In January 1849, fearful of American designs on its claimed sovereignty over territory north of the 49th parallel and Vancouver Island (not all of which is north of the 49th parallel), Britain decided to grant Vancouver Island to the Hudson's Bay Company, along with an obligation to promote British settlement. (How Britain obtained - or didn't - the right to grant the island is another story...)
A mid-1849 British Colonial Office document explains the soft opening: while the British Crown had granted the land of Vancouver Island to the HBC, the grant contained no provision respecting the island's government, meaning that "[t]he power of the Crown in this respect, therefore, remains the same as in the case of any other settlement formed by British subjects. And it is proposed to issue a Commission and Instructions [to the governor], under which the Legislature of the island will consist of a House of Assembly elected by the freeholders owning land to the extent of [blank space] acres and a Council nominated in the usual manner by the Crown."
Thus, seven months after the British Crown granted the land of Vancouver Island to the HBC, it made "provision for the Government of the Settlement, or Settlements so to be formed in the said Island," by appointing Richard Blanshard as "Our Governor and Commander-in-Chief in and over Our Island of Vancouver and the Islands adjacent between the 49th and 52nd degrees of North latitude." The first time that Blanshard's "Commission" refers to Colony it is in giving him the authority "to make and enact all such Laws and Ordinances as may from time to time be required for the Peace, Order and good Government of the said Colony" - as if the Colony had already come into being.
Contrary to its sister colony on the mainland, then, this Colony had no specific organic legislation establishing either the colony or its government. It was what was known as a "settled colony".
The Colony of British Columbia, 1858-1866
The "mainland" Colony of British Columbia had a very different beginning than its older sibling. In 1858, because of an impending rush of largely American miners searching for gold, the British Parliament passed an Act on August 2 entitled An Act to provide for the government of British Columbia.
On its face, this Act bore several interesting legal aspects:
In 1863, British Parliament passed An Act to Define the Boundaries of the Colony of British Columbia, and to Continue an Act to Provide for the Government of the Said Colony, adjusting the colony's boundaries and extending its government until December 31, 1863. Britain also issued Governor Douglas revised instructions adjusting the nature and structure of the Colony's government
On its face, this Act bore several interesting legal aspects:
- The arrangements were temporary. The Act made "temporary Provision for the Civil Government [of the territory] until permanent Settlements shall be thereupon established, and the Number of Colonists increased." The Act itself was only in force "until the Thirty-first Day of December One thousand eight hundred and sixty-two, and thenceforth to the End of the then next Session of Parliament."
- The Governor's power was virtually unlimited. Unlike on Vancouver Island, the Governor would have complete authority "to make Provision for the Administration of Justice therein, and generally to make, ordain, and establish all such Laws, Institutions, and Ordinances as may be necessary for the Peace, Order, and good Government of Her Majesty's Subjects and others therein; provided that all such Orders in Council, and all Laws and Ordinances so to be made as aforesaid, shall be laid before both Houses of Parliament as soon as conveniently may be after the making and Enactment thereof respectively."
- The Hudson's Bay Company had no role. Again unlike on Vancouver Island, the Hudson's Bay Company - though it maintained forts and posts within the new colony and would come to acquire the land on which those forts sat - had no rights to the soil or obligation to promote colonization. In fact, Britain asked James Douglas, by then Governor of the Colony of Vancouver Island, to assume the governorship of the new colony as well, on the condition that he relinquish his role within the HBC (which he had continued to hold since becoming Governor of Vancouver Island in 1850).
In 1863, British Parliament passed An Act to Define the Boundaries of the Colony of British Columbia, and to Continue an Act to Provide for the Government of the Said Colony, adjusting the colony's boundaries and extending its government until December 31, 1863. Britain also issued Governor Douglas revised instructions adjusting the nature and structure of the Colony's government
The (united) Colony of British Columbia, 1866-1871
In August 1866, British Parliament passed An Act for the Union of the Colony of Vancouver Island with the Colony of British Columbia, to be known as the British Columbia Act, 1866.
With this Act, the Colony of Vancouver Island was effectively terminated, though it was officially "united with the Colony of British Columbia," and the united colony was to be known as "British Columbia." The form of government existing in Vancouver Island was to cease; with minor adjustments, the form of government existing in British Columbia was to apply to the united Colony. Except for "Laws relative to the Revenue of Customs" (in respect of which British Columbia's were to take precedence), the laws existing in both colonies were to continue "until it is otherwise provided by lawful Authority."
With this Act, the Colony of Vancouver Island was effectively terminated, though it was officially "united with the Colony of British Columbia," and the united colony was to be known as "British Columbia." The form of government existing in Vancouver Island was to cease; with minor adjustments, the form of government existing in British Columbia was to apply to the united Colony. Except for "Laws relative to the Revenue of Customs" (in respect of which British Columbia's were to take precedence), the laws existing in both colonies were to continue "until it is otherwise provided by lawful Authority."
Sources
Reference re: Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388.
James Hendrickson, "Introduction," in Journals of the Colonial Legislatures of the Colonies of Vancouver Island and British Columbia, 1851-1871, vol. 1 (Victoria: Provincial Archives of British Columbia, 1980).
"Charter of Grant to Vancouver's Island to The Hudson's Bay Company," 13 January 1849 (in Hendrickson).
"Commission to Richard Blanshard, Governor of Vancouver Island," 9 July 1849 (in Hendrickson).
British Foreign Office, "Vancouver's Island - Confidential," 1849, CO 305:1, 635.
Michael Layland, The Land of Heart's Delight: Early Maps and Charts of Vancouver Island (Victoria: Touchwood Editions, 2013).
An Act to provide for the government of British Columbia (U.K.), 21 & 22 Vict., c 99.
An Act to define the Boundaries of the Colony of British Columbia, and to continue an Act to provide for the Government of the said Colony (U.K.), 26 & 27 Vict., c 83.
An Act for the Union of the Colony of Vancouver Island with the Colony of British Columbia (U.K.), 29 & 30 Vict., c 67.
Photo from B.C. Ministry of Transport, Creative Commons licence https://www.flickr.com/photos/tranbc/32582248624/sizes/l
James Hendrickson, "Introduction," in Journals of the Colonial Legislatures of the Colonies of Vancouver Island and British Columbia, 1851-1871, vol. 1 (Victoria: Provincial Archives of British Columbia, 1980).
"Charter of Grant to Vancouver's Island to The Hudson's Bay Company," 13 January 1849 (in Hendrickson).
"Commission to Richard Blanshard, Governor of Vancouver Island," 9 July 1849 (in Hendrickson).
British Foreign Office, "Vancouver's Island - Confidential," 1849, CO 305:1, 635.
Michael Layland, The Land of Heart's Delight: Early Maps and Charts of Vancouver Island (Victoria: Touchwood Editions, 2013).
An Act to provide for the government of British Columbia (U.K.), 21 & 22 Vict., c 99.
An Act to define the Boundaries of the Colony of British Columbia, and to continue an Act to provide for the Government of the said Colony (U.K.), 26 & 27 Vict., c 83.
An Act for the Union of the Colony of Vancouver Island with the Colony of British Columbia (U.K.), 29 & 30 Vict., c 67.
Photo from B.C. Ministry of Transport, Creative Commons licence https://www.flickr.com/photos/tranbc/32582248624/sizes/l
Please contact me at [email protected] to point out an error
or to discuss something further. As you might suspect, I love this stuff!
or to discuss something further. As you might suspect, I love this stuff!