Is the Cowichan decision fundamentally flawed?
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By Nina Green
Is the Cowichan decision fundamentally flawed?
It is.
Madam Justice Young found that Sir James Douglas intended Colonel Richard Moody to mark out a reserve in the Cowichan claim area on Lulu Island in Richmond, BC, and that Moody’s failure to carry out those instructions amounted to a breach of the honour of the Crown. In Paragraph 1853 she wrote:
[1853] There is a lack of evidence as to why an Indian reserve was not established at Tl’uqtinus. Moody knew about the Cowichan village and Tl’uqtinus. Douglas directed Moody to cause permanent Indian reserves to be established at the sites of Indian settlements. This would have included the Cowichan village. Moody did not fulfill his responsibilities. Instead, he purchased some of the Cowichan’s land for himself shortly before leaving the Province. The honour of the Crown requires servants of the Crown to act with honour when acting on behalf of the Sovereign:
Manitoba Metis at para. 65. This conduct was dishonourable.
In fact, the evidence establishes that, far from intending that a reserve be marked out in the Cowichan claim area, Douglas had always intended that the Cowichan claim lands be sold at public auction as legally required by his Proclamation No. 13 of 14 February 1859 (see attachment).
Douglas’ instructions to Moody on 5 March 1861
Madam Justice Young’s reasoning hinges on a brief letter written to Colonel Richard Moody from New Westminster on 5 March 1861 by Douglas’ acting Private Secretary, Charles Good. At the time, Douglas was Governor of both the Colony of Vancouver Island and the Colony of British Columbia on the BC mainland, while Moody was Chief Commissioner of Lands and Works for the Colony of British Columbia on the mainland. The letter is quoted by Madam Justice Young in Paragraph 1776 of her decision:
[1776] On March 5, 1861, Douglas, through Charles Good (for the Colonial Secretary, William Young) instructed Moody as follows:
... I am directed by His Excellency the Governor to request that you will take measures, so soon as may be practicable, for marking out distinctly the sites of the proposed Towns and the Indian Reserves throughout the Colony.
The extent of the Indian Reserves to be defined as they may be severally pointed out by the Natives themselves.
The full letter reads as follows:
British Columbia
New Westminster
5th. March 1861
To the Chief Commissioner of Lands & Works
Sir
I am directed by His Excellency the Governor to request that you will take measures so soon as may be practicable, for marking out distinctly the sites of proposed Towns and the Indian Reserves throughout the Colony.
2. The extent of the Indian Reserves to be defined as they may be severally pointed out by the Natives themselves.
I have the honor to be Sir,
Your most obedt servt
Charles Good
actg Private Secretary
Douglas issued the instructions in connection with his Proclamation No. 15 (see attachment) by which settlers could freely choose to preempt land on the BC mainland. Douglas instructed Moody to mark out the boundaries of proposed new towns, and the boundaries of Indian villages as pointed out by the Indians themselves, so that settlers would have notice not to preempt land in those areas. The question at trial was whether Douglas’ instructions to Moody included a Cowichan summer fishing village on the BC mainland which was an anomaly because the Cowichan tribes’ permanent villages were on Vancouver Island.
Why did Douglas never mark out reserves at the permanent Cowichan villages on Vancouver Island?
In assessing Governor Douglas’ intentions in his instructions to Moody, it is important to note a fact overlooked by Madam Justice Young in her decision. During his entire tenure as Governor from 1851-1864, Douglas never ensured that the Cowichan were shown the specific boundaries of their reserves on Vancouver Island, despite the fact that the permanent Cowichan villages were located in an area of rapidly-expanding white settlement. See attached 1878 report by Gilbert Sproat. See also Cail, Land, Man and the Law, and Sandwell, Reading the Land.
In fact, instead of marking out definitively the specific boundaries at the permanent Cowichan villages on Vancouver Island, Douglas attempted to purchase them. In 1850 the Cowichan wanted to sell their lands to Douglas as other tribes on the Island had done, but Douglas declined to purchase them at that time (see Paragraphs 1693-4 of Madam Justice Young’s decision). However a decade later, in 1860-1, at Douglas’ urging, Douglas and the fledgling BC Legislature did attempt to purchase the Cowichan lands on the Island for the express purpose of extinguishing Aboriginal title and encouraging white settlement, but were unable to do so for lack of funds.
These facts give rise to significant questions which serve as background to the discussion which follows. Why would Madam Justice Young assume that Governor Douglas intended Colonel Moody to mark out a reserve for the Cowichan at a summer fishing village on the BC mainland on what is now Lulu Island in Richmond when Douglas had never shown the Cowichan the specific boundaries of their permanent villages on Vancouver island? And further, why would Madam Justice Young assume that Douglas intended Moody to mark out a reserve in the Cowichan claim area on the BC mainland when she was aware that at the time he issued his instructions to Moody on 5 March 1861, Douglas had been actively involved for a year, along with the BC Legislature in Victoria, in trying to purchase the Cowichan lands on Vancouver Island in order to extinguish Aboriginal title?
Why did Douglas order the Trutch survey of the Cowichan claim area in 1859?
The Trutch survey of 1859 raises a similar question. Why did Madam Justice Young assume that Douglas intended Moody to mark out a reserve on the Cowichan claim lands on Lulu Island when she knew that Douglas had authorized Joseph Trutch to survey the Cowichan claim area two years earlier in the summer of 1859, and according to Douglas’ own Proclamation No. 13, all surveyed lands on the BC mainland had to be immediately put up for sale at public auction?
When considering Douglas’ authorization of the Trutch survey of the Cowichan claim area in the summer of 1859, it is important to note that Trutch came to Douglas’ attention through official channels. Trutch arrived in the Colony of British Columbia in June 1859 with a letter of introduction to Governor Douglas from the Secretary of State for the Colonies in London, Sir Edward Bulwer-Lytton:
Private
Downing Street
29th October 1858
Governor Douglas &c &c &c
My dear Sir,
By an official letter of this date I have granted an introduction to you in favour of Mr. Joseph Trutch, a gentleman who has been engaged in surveying in Oregon under the Government of the United States.
I have been so impressed with the capabilities and professional skill of Mr. Trutch that I wish to recommend him more particularly to your notice in the belief that should an opportunity occur of employing him, I shall render you service in mentioning him as a person who I think would be likely to afford you useful assistance.
I remain,
My dear Sir
Yours faithfully
EB Lytton
Trutch thus came highly recommended by the British government, and as Madam Justice Young notes, shortly after his arrival, Douglas engaged him to survey the Cowichan claim area on Lulu Island (as well as other lands on the lower Fraser River):
[1754] In the summer 1859, Douglas had Lulu Island surveyed. CCLW Moody concluded a Memorandum of Agreement with Joseph Trutch to conduct the survey. The surveyed lands included the Claim Area. As described later, in 1863, Moody purchased waterfront lands, Sections 27 and 34, in the Claim Area. In 1874, Trutch, now Lieutenant Governor, issued the Crown grant to Moody in respect of those lands.
As mentioned above, the Trutch survey was conducted in furtherance of Douglas’ Proclamation No. 13.
Douglas issued Proclamation No. 13 on 14 February 1859 to provide a legal framework under which all surveyed Crown land on the BC mainland would be made available for sale to settlers. The proclamation provided that, once surveyed, Crown land on the BC mainland must immediately be put up for sale at public auction at an upset price of 10 shillings an acre. Lands which remained unsold at public auction were then legally available for private purchase at 10 shillings an acre through application to the Chief Commissioner of Lands and Works, i.e., Colonel Moody.
As noted above, four months after issuing Proclamation No. 13, Douglas authorized the Trutch survey of the Cowichan claim area in the summer of 1859. Since Proclamation No. 13 mandated that all lands on the BC mainland, once surveyed, legally had to be put up for sale immediately at public auction, it is clear that Douglas always intended that the Cowichan claim lands were to be sold at public auction as soon as the Trutch survey was completed. However Proclamation 13 also required that the public be given ‘due notice’ in advance of the auction, and in the case of the Trutch survey there was a timing problem. Notice advising that there would be a sale of surveyed lands at a public auction on 5 October 1859 was published in the New Westminster Times on 17 September 1859; however since the Trutch survey was apparently not completed until late September, it seems there was insufficient time for the Cowichan lands to be offered for sale at the October auction, and accordingly they were not included in it.
The results of the sale of the surveyed lands which were included in the 5-6 October public auction were a disappointment to Douglas. As he advised the Duke of Newcastle in a despatch on 18 October 1859, only 4 lots were sold:
25. The Colony has not proved attractive to agricultural settlers. The Surveyed Country land was all put up to public sale at New Westminster on the 5th and 6th of the present month (October), when four lots only were sold, none of which realized more than the upset price of ten Shillings an acre, as there was no competition and few purchasers.
Proclamation No. 15 allowing settlers to preempt unsurveyed Crown land
Even before writing to the Duke, Douglas had already decided to change course in terms of making Crown land available for settlement. Since providing surveyed rural or ‘country’ land for purchase by settlers at public auction was clearly not working, he would make unsurveyed Crown land available, and eliminate the public auction requirement. As he advised the Duke, his travels in the BC Interior had revealed that settlers had already begun occupying, and making improvements on, unsurveyed land in new BC towns like Yale, Lytton and Hope. These settlers naturally wanted to secure the right to purchase the land they had already occupied and improved without the land having to be put up for sale at public auction, as required by Proclamation No. 13.
Douglas thus came up with a new law, Proclamation No. 15 (see attachment), which allowed settlers to freely preempt land, i.e., to choose the land they wanted, and occupy it without the land having to be surveyed in advance and offered for sale at public auction. As he explained in his letter to the Duke:
26. At Douglas and Hope various applications were made to me, for rural land, by persons who had taken a fancy to the country, and in some instances made valuable improvements. They asked to be secured in the ownership of any land they might improve, at the upset price of ten shillings an acre; and that it should not be exposed to public sale, with a value enhanced by their own labour and outlay, as in that case they would either have to purchase their own improvements or see their prosperity pass into other hands.
27. There was nothing unreasonable in their proposal, and as meeting their views would, I felt assured, have the effect of promoting the settlement of the country, I had every wish to do so, but there was a difficulty in accomplishing the object, for the reason that no Country land had been surveyed in those Districts, nor could surveys be completed before next year, when the petitioners would probably all have left the Colony in disgust. I therefore had recourse to an expedient which fully met the case, without sacrifice to the Government, and to the perfect satisfaction of the public, by issuing a circular addressed to the Assistant Commissioners of Crown Lands at Hope, Yale, Douglas, Lytton, and Cayoosh, directing them to permit all persons being at the time British subjects, and all persons who have recorded their intention of becoming British Subjects, to hold tracts of unsurveyed Crown Land, not being Town sites, nor sites of Indian Villages, and not exceeding 160 acres in extent, with a guarantee that the same would be fully conveyed to the holder when the land is surveyed, at a price not to exceed ten shillings an acre.
28. This is in fact the basis of a preemption Law founded on occupation and improvement, the Government agreeing on those conditions to convey the land at a fixed price; it being moreover provided that the rights of actual settlers, of those persons only who are found in possession when the land is surveyed will be recognized and allowed. Persons wishing to acquire larger tracts will be required to pay a deposit of five shillings per acre on all land over 160 acres preempted for their benefit; a condition intended to serve as a protection to bona-fide settlers, and to prevent speculators from preying on the public, and defeating the proposed object of encouraging the settlement of the Country.
29. If that plan should fail in attracting a population I think it will be advisable to resort to a Canadian system of making free grants not exceeding 100 acres of rural land to actual settlers, on condition of their making certain specified improvements.
The foregoing outline formed the basis for Douglas’ preemption proclamation of 4 January 1860, Proclamation No. 15. As noted above, Douglas’ instructions to Moody of 5 March 1861 to mark out proposed townsites and Indian reserves were clearly issued in furtherance of Proclamation No. 15. The objective of Douglas’ instructions to Moody of 5 March 1861 was to ensure that settlers, when preempting land of their own choosing, were aware of the sites of proposed towns and the location of Indian reserves so that they did not attempt to preempt on those unsurveyed lands. It thus follows that Douglas’ instructions to Moody of 5 March 1861 had no application whatsoever to land in the Cowichan claim area on Lulu Island in Richmond, which had already been surveyed, and by law, under Proclamation No. 13, had to be offered for sale at public auction, and that Douglas never intended Moody, under his instructions of 5 March 1861, to mark out a reserve on the Cowichan claim lands.
Douglas’ letters to Moody of 17 July and 17 October 1860 mandating the sale of all surveyed land on the BC mainland
The conclusion that Douglas never intended Moody to mark out a reserve on the Cowichan claim lands pursuant to his instructions of 5 March 1861 is further clarified in the strongest possible terms by Douglas’ personal letter to Moody of 17 October 1860.
Five months before his instructions to Moody of 5 March 1861 (see above), and in furtherance of his Proclamation No. 13 which required that all surveyed Crown land on the BC mainland be immediately offered for sale at public auction, on 17 October 1850 Douglas wrote to Moody, following up on an earlier letter of 17 July 1860. In his letter of 17 October 1850, Douglas evinced marked displeasure with Moody for not having put all the surveyed land on the BC mainland up for sale as Douglas had ordered him to do:
British Columbia
Victoria Vancouvers Island
17th October 1860
To The, Chief Commissioner of Lands and Works
Sir, I have had under consideration your letter of the 22d September No 477, together with the previous letter of the 5th July, upon the application of scrip to surveyed lands which have not been exposed for Sale at Public auction.
2. I find that on the 17th July last I conveyed to you explicit instructions to cause all the surveyed land in British Columbia to be put up for sale at public auction, so that if not sold, there could be no obstacle to the disposal of such land by private sale. You were also informed at the same time that surveyed land could be disposed of in no other manner. From the tenor of your letter of the 22 Ultimo, I gather that these instructions have not been carried out I therefore beg you will inform me without delay whether I am correct in this inference; - and if so, that you will explain why you have deferred action in so important a matter. [bolding added]
3 I disapprove altogether of your answering any categorical questions shaped in the manner adopted by Mr Robson, and your entering into any controversy with Mr White, such a course would be both impolitic and undignified. The scrip held by those gentlemen is of the value it purports to be, and it will entitle the holder to select any unreserved surveyed land he may desire, provided that in the first instance such surveyed land has been exposed for sale by Public auction, as by law required.
I have the honor to be Sir,
Your most obedt servt
James Douglas
Douglas is crystal clear about the reason for his irritation. In a letter on 17 July 1860 he had explicitly instructed Moody to sell all remaining surveyed Crown land on the BC mainland at public auction, including, of course, the lands in the Cowichan claim area, and Moody had failed to carry out those instructions.
There is no trace of Moody’s reply. However Moody did proceed to carry out Douglas’ unequivocal instructions to sell all the surveyed land on the BC mainland which remained unsold. Notice of a public auction to be held on 9 February 1861 was published in the 26 January 1861 issue of the New Westminster Times (see attachment), and on that date, along with other surveyed lands, the surveyed lands in the Cowichan claim area were offered for sale at public auction.
There were no bids at the public auction of 9 February 1861 for the surveyed lands in the Cowichan claim area. In fact no private buyers were found for any of the Cowichan claim area lands until 8 September 1863, when Moody purchased Sections 27 and 34 shortly before his return to England.
Summary
Several facts are thus clear from the foregoing discussion:
a) Douglas authorized, and paid for, the Trutch survey of the Cowichan claim area in the summer of 1859, indicating that it was always his intention to sell the Cowichan claim lands since his Proclamation No. 13 mandated that all surveyed Crown lands on the BC mainland were to be sold at public auction immediately after completion of the survey;
b) On 17 July 1860 Douglas explicitly instructed Moody to sell at public auction all surveyed lands on the BC mainland, including the Cowichan claim lands, again indicating that he clearly always intended the Cowichan claim lands to be sold;
c) On 17 October 1860, having learned that Moody had not followed his directive to sell all the surveyed lands, Douglas penned a peremptory personal letter once again directing Moody to put all the surveyed lands up for sale at public auction, including, of course, the lands in the Cowichan claim area, since his letter in no way exempts them;
d) On 9 February 1861 Moody put surveyed lands, including the Cowichan claim area lands, up for sale at public auction, and because there were no bidders for the lands in the Cowichan claim area at the auction, they then became legally available for private sale to individuals, including Moody.
The foregoing facts directly contract Madam Justice Young’s findings of fact in Paragraph 1853 of her decision quoted earlier:
[1853] There is a lack of evidence as to why an Indian reserve was not established at Tl’uqtinus. Moody knew about the Cowichan village and Tl’uqtinus. Douglas directed Moody to cause permanent Indian reserves to be established at the sites of Indian settlements. This would have included the Cowichan village. Moody did not fulfill his responsibilities. Instead, he purchased some of the Cowichan’s land for himself shortly before leaving the Province. The honour of the Crown requires servants of the Crown to act with honour when acting on behalf of the Sovereign: Manitoba Metis at para. 65. This conduct was dishonourable.
In Paragraphs 1851 and 1855 she wrote further:
[1851] The plaintiffs ask the Court to infer that Moody used a land agent to conceal his identity, and to draw a connection between Moody’s covert acquisition of Cowichan Title Lands and the Crown’s failure to establish an Indian reserve at Tl’uqtinus. I accept that Moody’s use of a land agent had the effect of concealing his identity. Given my finding that he acted contrary to Douglas’ directions and his responsibilities with respect to setting apart Indian reserves in making this purchase, I find it is likely that he used a land agent to conceal his acquisition.
[1855] However, I do not find that the evidence supports an inference that a permanent Indian reserve was not created at Tl’uqtinus because Moody wished to acquire some of the lands himself. The colonial correspondence suggests a number of possible reasons why this step was not taken. For example, there is evidence related to the expense associated with Indian reserve creation as a cause for delay. There is also evidence that in 1861, reserve creation instructions from Parsons to Sinett, which initially included establishing reserves at Indian settlements below Fort Langley, were inexplicably modified to exclude Indian settlements below Fort Langley. On the whole, there is insufficient evidence to determine why an Indian reserve was not created.
Not only do the facts summarized above contradict Madam Justice Young’s finding concerning Douglas’ intentions conveyed in Good’s letter of instruction to Moody on 5 March 1861, they raise a related question. Madam Justice Young makes the astonishing admission in Paragraphs 1851, 1853 and 1855 that she had no evidence before her as to why an Indian reserve was not established in the Cowichan claim area.
In effect, in the paragraphs of her decision quoted above, Madam Justice Young admits that after a 513-day trial, what really happened was still a mystery to her. She admits she did not have evidence before her at trial which allowed her understand why an Indian reserve was not created in the Cowichan claim area.
Should that not have been a red flag to her? Should she not have dismissed the case since the plaintiffs had not provided substantive evidence at trial as to why a reserve was not established in the Cowichan claim area?
Moreover, her findings in the paragraphs quoted above are contradictory. In Paragraph 1853 she makes a finding of fact that Moody’s failure to fulfil his responsibility to mark out a reserve in the Cowichan claim area, and his purchase of some of the Cowichan claim lands for himself, contravened the honour of the Crown, and was dishonourable. Yet in Paragraph 1855 she says the evidence did not allow her to draw the inference that Moody failed to mark out a reserve in the Cowichan claim area because he wanted to acquire some of the lands himself. So which was it? It obviously couldn’t be both. Either Moody deliberately failed to mark out a reserve in the Cowichan claim area because he wanted to acquire some of the lands himself, which was dishonourable, and contravened the honour of the Crown, or the evidence did not allow her to draw that inference.
It seems clear from the facts outlined above that we do know why Moody failed to mark out a reserve in the Cowichan claim area. It was because Douglas never intended him to do so. Douglas authorized and paid for the Trutch survey of the lands in the Cowichan claim area, and on 17 July 1860 and 17 October 1860 specifically ordered Moody to put them up for sale at public auction in accordance with Proclamation No. 13, which Moody did on 9 February 1861. These facts, as well as Madam Justice Young’s astonishing admission that there was a lack of evidence at trial on the crucial issue of why an Indian reserve was not marked out in the Cowichan claim area, and her contradictory statements about Moody’s culpability, cause the entire Cowichan decision to collapse, and mandate that the BC Court of Appeal order a new trial so that the private property rights of BC residents can be protected.
Fin.
Postscript: Prime Minister Mark Carney recently stated during Question Period that he “fundamentally disagrees” with the Cowichan decision, that the federal government had immediately appealed the decision, and that he would ‘always advance viable legal arguments to protect private property’. In reality, the appeal has been stalled for eight months. The public has been told nothing since Madam Justice Young’s decision was released on 7 August 2025, and the federal government has not rescinded its litigation directive which prevented federal government lawyers from arguing significant defences at trial.
Thanks for reading. For more from this author, read Did Madam Justice Young misinterpret Sir James Douglas and Colonel Richard Moody's letters of 27-28 April and 11 May 1863?
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Excellent research. Jody Wilson Raybold created a law to prevent the government from fighting back against first nation decisions in the courts. It was called the "lay down your tools act" by lawyers. Lorne Gunter wrote a piece about it.
Nina, thank you so much for sharing your insights.
This should be the story on everyone's mind, but no.