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Court rejects First Nation’s bid to appeal Island railway land decision for now

B.C. Court of Appeal upholds Supreme Court decision, but leaves Snaw-Naw-As opening to try again
A freight train makes its way over the Black Bridge in Duncan, back when rail was still running on the E&N corridor. (Black Press file)

A B.C. Supreme Court judge’s dismissal of a First Nation’s lawsuit, seeking return of E&N railway land, has been upheld by the B.C. Court of Appeal.

The Nanoose-area Snaw-Naw-As launched the suit against the Island Corridor Foundation and the Attorney General of Canada in 2015, seeking return of land which was granted to E&N Railway in 1912 by the Government of Canada. Snaw-Naw-As claimed it wasn’t being used for railway purposes.

B.C. Supreme Court Judge Robert D. Punnett dismissed the suit in June 2020, ruling it couldn’t be said that the [right of way] is no longer required for railway purposes. ICF’s plans to continue upkeep on the rail line, with present funding and its intention to continue to use the lands for railway purposes did not constitute an inefficient use that would trigger the right of reversion, he said.

In its appeal, Snaw-Naw-As alleged Punnett refused to consider legal arguments regarding the “alienation” of the lands from the Canadian Pacific Railway to ICF, which it said “breached the limiting conditions,” according to information in the decision.

The First Nation alleged the judge failed to “apply an objective test” in relation to whether the right-of-way was needed for the rail line and the “legal principles requiring a nation’s interest” in lands impacted when “expropriated.”

RELATED: B.C. Supreme Court dismisses lawsuit against ICF

Snaw-Naw-As entered a September 2020 B.C. Ministry of Transportation and Infrastructure report as evidence in the appeal, which it said showed the Government of B.C. had “no plans” to repair the line between Victoria and Duncan, and which it said “undermines” Punnett’s finding that government had not revealed the “possibility of restoring” E&N rail service.

Judges Barbara Fisher and Patrice Abrioux voted to uphold the decision, while Judge Peter Willcock dissented. While the appeal was withheld, an allowance was made allowing for Snaw-Naw-As to bring the matter back before the court if “Canada determines that it will not approve funding for infrastructure improvements on the segment of the corridor … or does not make a determination within 18 months.”

Fisher stated that without question, “almost all” train service on the rail corridor has ceased. Passengers have not ridden the line for 10 years and there has been no freight transported, with the exception of within Nanaimo, in seven years.

The condition of tracks along the corridor are unsuitable for “safe operations” and would require significant money from government, said Fisher. Snaw-Naw-As brings up valid concerns about ICF completing any repairs on the line in the near future and while the foundation is not obligated to “hold the lands indefinitely without some restoration,” B.C. and Canadian governments must first decide whether the public would be best served with the significant expenditures, she said.

The Canadian government had “not been engaged” on the subject since 2017, said Fisher, and while the B.C. government has done some notable work in the past few years, it has given no indication it would prioritize “restoring inter-city rail service.”

RELATED: Snaw-Naw-As files lawsuit seeking return of E&N Railway land

According to Willcock, the caveat that Snaw-Naw-As can return to the court in 18 months allows the ICF to keep land “on speculation, and keeps land out of the hands of [Snaw-Naw-As] after the railway use has come to an end and is not consistent with a grant that minimally impairs the appellant’s rights.”

In an e-mail, Snaw-Naw-As Chief Gordon Edwards said the nation is calling on the provincial and federal governments to “fulfill its duty to reconciliation and immediately declare that the operation of this railway is no longer in the public interest. Reconciliation and common sense demand that lands taken for a long-abandoned railway be restored to First Nations communities without delay.”

Edwards said there is “new and greater purpose for these lands” including housing and economic development and noted that Snaw-Naw-As is one of the smallest residential reserves in the country.

“The rail line is in a state of irrecoverable decay, and it bisects our reserve as does the highway greatly hindering opportunities for us to deliver on community priorities,” he said.

Edwards said Snaw-Naw-As will review the decision carefully, including whether to appeal to the Supreme Court of Canada.

Island Corridor Foundation did not immediately respond to a request for comment.

The hearing occurred May 17-18 and the judgment was issued Sept. 14.

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RELATED: ICF seeks dismissal of Snaw-Naw-As First Nation lawsuit

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Karl Yu

About the Author: Karl Yu

I joined Black Press in 2010 and cover education, court and RDN. I am a Ma Murray and CCNA award winner.
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