Was Madam Justice Young's declaration of Aboriginal title in the Cowichan decision based on lost original documents and findings of fact unsupported by evidence?
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By Nina Green
Was Madam Justice Young’s declaration of Aboriginal title in the Cowichan decision based on lost original documents and findings of fact unsupported by evidence?
It was.
Two documents which are foundational to Madam Justice Young’s decision were lost in the 1800s — Sir James Douglas’ 1853 journal on which she relied to establish that Douglas engaged the honour of the Crown in a promise made to the Cowichan during a military expedition on Vancouver Island, and Lieutenant Aemilius Simpson’s original manuscript chart of the lower Fraser River on which she relied to establish the specific location of ‘Cowitchen Villages’ in the area claimed by the Cowichan in Richmond on the BC mainland.
A. Sir James Douglas’ lost 1853 journal
Sir James Douglas’ original journal recounting his military expedition on Vancouver Island in January 1853 to apprehend two Indian murderers has been lost since 1878 when excerpts were transcribed in Victoria, BC, by Thomas H. Long, an employee of the American historian and book collector Hubert Howe Bancroft.
Madam Justice Young relied on Douglas’ 1853 journal to establish a key finding in the Cowichan decision — the finding that Douglas recorded in a 7 January 1853 entry in his journal that while apprehending a Cowichan murderer, he told the assembled Cowichan that ‘Her Majesty the Queen had given me a special charge to treat them with justice and humanity’, and that by this promise he engaged the honour of the Crown, which was breached by the Crown’s failure in 1861 to mark out a reserve at the Cowichan summer fishing village of Tl’uqtinus on what is now Crown and privately-owned land in Richmond, BC.
The finding that Douglas engaged the honour of the Crown in his journal entry was of such importance to her decision that Madam Justice Young referred to Douglas’ promise to treat the Cowichan with ‘justice and humanity’ 17 times, and used the phrase ‘honour of the Crown’ almost 100 times.
It is thus startling to note that Madam Justice Young failed to mention in her decision that the original 1853 journal on which she placed such reliance is lost, and was last heard of in 1878.
A misunderstanding of the facts regarding Douglas’ speech to the Cowichan
Madam Justice Young also failed to mention another highly relevant fact in her decision — that Douglas’ 7 January 1853 journal entry did not record his actual words to the Cowichan.
According to Lieutenant Moresby’s eyewitness account, which is readily available but was inexplicably not mentioned during the trial, Douglas spoke to the Cowichan on 7 January 1853 in Chinook jargon, not in English (see attachment). Chinook jargon is a very limited means of communication. It is an Indian trade language with a vocabulary of only about 700 words, and has no words at all for abstract concepts such as ‘justice’ and ‘humanity’. In February 1878, Gilbert Sproat described it as ‘a very untrustworthy medium for doing important business with the Indians’.
Moreover although Madam Justice Young repeatedly stresses the fact that Douglas told the Cowichan he had a special charge from Her Majesty to treat them with justice and humanity, Lieutenant Moresby states that Douglas spoke to the Cowichan about King George, not Queen Victoria (see attachment).
In consequence, Douglas’ 7 January 1853 entry in his long-lost original journal was merely a very imperfect paraphrase of what he actually said in his speech to the Cowichan in Chinook jargon, and a completely unreliable evidentiary basis for a judicial finding that Douglas engaged the honour of the Crown in that speech.
The importance of Madam Justice Young’s finding that Douglas engaged the honour of the Crown in his speech to the Cowichan cannot be over-estimated as it underpins her declaration of Aboriginal title over the Cowichan claim lands in Richmond. Since her finding that the honour of the Crown was engaged was based on a lost document and her erroneous finding of fact that Douglas spoke to the Cowichan in English, the only remedy is a new trial in which the claim that the honour of the Crown was engaged can be evaluated on a proper evidentiary basis.
B. Lieutenant Aemilius Simpson’s lost manuscript hydrographic chart of the Fraser River allegedly pinpointing the location of ‘Cowitchen Villages’ within the Cowichan claim area in Richmond
In making the vitally-important determination that the former Cowichan summer fishing village of Tl’uqtinus was located precisely within the 1846 acres claimed by the Cowichan in Richmond, BC, Madam Justice Young again relied on a lost document.
In Paragraph 773, she writes:
[773] The 1827 Simpson sketch is of the south arm of the Fraser River, and depicts the Cowichan villages on the south shore of Lulu Island, across from what appears to be Tilbury Island. Barnston recorded the toponym “Cowitchen Villages” and three adjacent clusters of six rectangles along the north bank of the south arm. [bolding added]
Madam Justice Young speaks of the 1827 Simpson sketch in Paragraph 773 as though the document introduced into evidence at the trial was Simpson’s original manuscript chart.
In fact, the records of the Hudson’s Bay Company Archives in Winnipeg indicate that Simpson’s original manuscript chart was lost more than a century ago.
According to the HBC Archives, a catalogue of maps, charts and drawings held by the Hudson’s Bay Company was created ca. 1860-1888. An entry in that catalogue states that Lieutenant Simpson’s original charts of not only the Fraser River, but also the Columbia River, were received by the Hudson’s Bay Company in London in 1829 (see entry below, and attachment):
133. Charts of the Columbia and Fraser’s River by Lieut. Simpson [received] 1829
It is important to note that the foregoing entry in the Hudson’s Bay Company records states that Simpson’s original manuscript charts of the Fraser and Columbia Rivers were received in London in 1829, not 1827, and were attributed in the Hudson’s Bay Company catalogue to Lieutenant Simpson alone, not to a collaboration between Simpson and Barnston.
The HBC Archives also advises that the entry for Lieutenant Simpson’s original manuscript charts of the Columbia and Fraser Rivers and other entries in the catalogue were marked with an ‘x’ in pencil (see attachment), and that the items so marked were sent at the time to the Arrowsmith map firm. The HBC Archives advises that Lieutenant Simpson’s original manuscript chart of the Fraser River was never returned to the HBC by the Arrowsmith firm as the HBC Archives has no further record of it (emails from HBC Archives 6 and 12 February 2026).
The HBC archivist states that Lieutenant Simpson’s original manuscript chart is also discussed in Richard Ruggles’ “A Country So Interesting: The Hudson’s Bay Company and Two Centuries of Mapping, 1670-1870“, and that Ruggles places Simpson’s 1829 chart of the Fraser in “Catalogue C”, a list of HBC Manuscript Maps that have not been located (see attachments, pp. 90, 249).
In pinpointing Tl’uqtinus within the Cowichan claim area, Madam Justice Young was thus not relying on Lieutenant Simpson’s original manuscript chart received in London in 1829, which is lost, but was instead relying on manuscript copies made at later dates by unknown persons. In her decision she refers to the first of these manuscript copies as ‘the 1827 sketch’ or ‘the 1827 Simpson sketch’, and to the second as ‘the 1833 Manuscript‘.
Madam Justice Young’s reliance on these later manuscript copies in making the key finding of fact that Tl’uqtinus was located within the Cowichan claim area led her into speculation that Lieutenant Simpson and Hudson’s Bay Company clerk George Barnston collaborated on Simpson’s original manuscript chart. These speculations are too complicated to enter into here. For the present, suffice to say that, as noted above, Simpson’s original manuscript charts of the Fraser and Columbia Rivers were received in London in 1829, not 1827, and were attributed in the only primary source now available — the Hudson’s Bay Company catalogue of ca. 1860-1888 — to Lieutenant Simpson alone, not to a collaboration between Simpson and Barnston.
Summary
In short, Madam Justice Young failed to state in her decision that the originals of two primary source documents are lost — Sir James Douglas’ 1853 journal, and Lieutenant Simpson’s original manuscript chart received in London in 1829 — and that in the case of the journal she was relying on excerpts transcribed from Simpson’s original journal by Thomas Long in 1878, and that in the case of the chart she was relying on copies, made by unknown persons, of Lieutenant Simpson’s original manuscript chart.
In addition to relying on lost documents, Madam Justice Young also made erroneous findings of fact. She made a finding of fact that Douglas made a promise in English to the Cowichan to treat them with ‘justice and humanity’ in which he spoke of Queen Victoria, whereas Lieutenant Moresby’s eyewitness account states that Douglas spoke to the Cowichan in Chinook, which has no words for ‘justice’ and ‘humanity’, and that he spoke of King George, not ‘her Majesty the Queen’.
In addition, in making the vital determination as to whether Tl’uqtinus was actually located within the Cowichan claim area, Madam Justice Young ignored the only primary source document which mentions Lieutenant Simpson’s original manuscript chart, the ca. 1860-1888 Hudson’s Bay Company catalogue which credits the manuscript charts of the Fraser and Columbia Rivers to Lieutenant Simpson alone. Instead of relying on the HBC primary source document which credits the original manuscript chart to Lieutenant Simpson alone, Madam Justice Young speculated that Lieutenant Simpson collaborated on the original manuscript chart with George Barnston, thus muddying the issue of whether Tl’uqtinus was actually located within the Cowichan claim area.
The Cowichan decision has sweeping ramifications for private property owners and for Crown land throughout British Columbia, and across Canada, and it appears from the foregoing analysis that serious errors were made at trial. The only remedy is a new trial in which all the above relevant evidence can be fully taken into consideration by the trial judge.
For an in-depth discussion of the issues in the Cowichan case, see the attached PowerPoint presentation.
Postscript. The BC court system needs to establish a new rule for reporting trial court decisions in Aboriginal title cases which make extensive use of historical documents from archival sources. Citations for these historical documents are not currently provided in trial court decisions such as the decision in the Cowichan case, thus rendering it almost impossible for members of the public and journalists to identify, and thus obtain access to for purposes of verification, the archival documents which underlie the findings of fact in Aboriginal title decisions. The Cowichan case made use of dozens if not hundreds of archival documents, but no citations are available for them in the trial court decision, thus preventing independent verification of the facts relied on at trial.
Thanks for reading. For more from this author, read Is the BC government forcing private private property owners to go it alone to regain title to their properties?
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Our judicial system is becoming a total mess: property rights in jeopardy, lesser criminal sentences for fn and blacks, ultralenient sentences and parole for terrible crimes, ...
If the choice comes down to a rotten judicial system and 51st state, 51st state.
Fantastic and difficult work, Nina. Thank you on behalf of the country for doing this. You are a national treasure.