The Snaw-Naw-As (Nanoose) First Nation is calling for the re-purposing of the E&N Railway Corridor. (File photo)

The Snaw-Naw-As (Nanoose) First Nation is calling for the re-purposing of the E&N Railway Corridor. (File photo)

B.C. Supreme Court dismisses claim against Island Corridor Foundation

Snaw-Naw-As (Nanoose) First Nation was seeking return of reserve land as railway sits unused

The B.C. Supreme Court has dismissed a claim put forward by the Snaw-Naw-As (Nanoose) First Nation against the Island Corridor Foundation.

The civil lawsuit, initiated in late 2015, indicated that Snaw-Naw-As reserve land was wrongfully taken away to build the railway and the land now sits unused.

It asked for the return of the reserve land, which was expropriated in 1911. They said the inefficient use of their land “must trigger the right of reversion,” according to the court document. However, the court dismissed the case on June 30, saying that the ICF is attempting to restore rail on the land, rather than leaving it indefinitely.

The conclusion, from Justice Robert D. Punnett, reads: “[147] The desire of the plaintiff to have the Lands returned to their reserve is understandable. However, for the reasons given the ROW has not ceased to be used for railway purposes. The claim is dismissed. [148] In light of the conclusion I have reached respecting the plaintiff’s claim, I need not address the claim against the Crown seeking reversion to the plaintiff, not the Crown. [149] No submissions were made concerning costs. The parties have liberty to apply if required.”

Brent Edwards, a Snaw-Naw-As council member, said it was difficult getting the decision back, but that it doesn’t mean it’s all over for the First Nation.

“Of course, obviously, we’re disappointed in the decision, but we respect it,” said Edwards. “We’re going to take some time to see what steps we’re going to do next.”

Edwards said although it’s been decided that the ICF is still active by the courts, in his eyes a question still remains: what does the future of the ICF actually look like? The Snaw-Naw-As have called for repurposing the rail line into a trail system, saying that investment needed to reopen the line makes the project infeasible.

“There’s a lot of work to do to make sure that First Nations’ visions and values are instilled and interests are instilled into the future of the ICF,” he said. “We’ve got a lot of work to do.”

As part of his decision, Punnett indicated he accepts “the future of the railway is unclear and will depend on funding from various levels of government which is uncertain.”

“Indeed, the likelihood of its future use for rail traffic may be bleak given it depends on the largess of government,” the decision read. “However, government support of passenger rail service is not uncommon. As evidenced by the Updated Condition Assessment, the provincial government has apparently not foreclosed the possibility of restoring service on the Railway. To the contrary, they have invested resources studying the viability of such. ICF, its stakeholders and other levels of government do not consider the corridor abandoned. Nor do they consider the future potential of the corridor hopeless. They at least contemplate its future use as an active railway as a possibility.”

READ MORE: Officials hope to resolve E&N rail dispute as court date looms

READ MORE: Snaw-Naw-As First Nation calls for repurposing of E&N rail line

READ MORE: Snaw-Naw-As lawsuit looms over Island Corridor Foundation

A release from the ICF said they were happy with the decision, but that the case highlights the frustration among both Indigenous nations along the line and the public regarding the lack of progress. The ICF owns the line, which stretches 220 kilometres from Victoria to Courtenay. Passenger service halted in 2011 due to concerns around track safety, while freight service continues sparingly on Vancouver Island. The ICF has been trying to restore freight and passenger service on the line, but have had difficulties getting the funds needed to do so.

Fifty per cent of the board seats on the ICF are represented by Indigenous nations, with the corridor running through 14 First Nation territories, including Snaw-Naw-As.

“While we are pleased with the determination, we also believe this case highlights the level of frustration among our First Nations partners, and the public at large, for the lack of progress on the return of rail service to the island,” read part of the July 2 release. “This determination should not be mistaken for an invitation to delay progress but as a clarion call to move forward with restoration of rail service. It should also send a clear message to our provincial and federal governments that they need to justly, and equitably, resolve Aboriginal title and rights issues with our First Nations partners which are in part behind this case.”

cloe.logan@pqbnews.com

BC Supreme Courtrailwaysvancouverisland

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Trevor Davis, base manager of the Western Canada Marine Response Corporation in Sidney, stands in front of the Hecate Sentinal, an oil skimming vessel based at Sidney’s Van Isle Marina. (Wolf Depner/News Staff)
Oil spill response base taking shape on Saanich Peninsula

Enhanced base with elements in North Saanich and Sidney to be fully operational in fall 2022

The O’Meara family – (left to right) Mari, Max, Adam and Rei – spent Saturday afternoon picking out the perfect tree. (Devon Bidal/News Staff)
Santa’s Forest tree sale in Saanich implements one-way perusing, curbside pick up

Christmas tree, wreath sales in Braefoot Park through Dec. 24

Environment Canada has issued a special weather statement forecasting windy weather Sunday and Monday. (News Bulletin file photo)
More windy weather on the way for Vancouver Island

Environment Canada issues special weather statement for Victoria, east coast of Island, north Island

(Black Press Media file)
Webinars help Greater Victoria residents affected by dementia prepare for the holidays

COVID-19 pandemic, restrictions can add additional challenges for people living with dementia

Mary Cox and Jack Plant dance in their pyjamas and slippers at the morning pyjama dance during the Rhythm Reelers’ 25 Annual Rally in the Valley Square Dance Festival in Chilliwack on June 4, 2011. Sunday, Nov. 29, 2020 is Square Dancing Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of Nov. 29 to Dec. 5

Square Dancing Day, Disability Day and International Ninja Day are all coming up this week

Black Press Media and BraveFace have come together to support children facing life-threatening conditions. Net proceeds from these washable, reusable, three-layer masks go to Make-A-Wish Foundation BC & Yukon.
Put on a BraveFace: Help make children’s wishes come true

Black Press Media, BraveFace host mask fundraiser for Make-A-Wish Foundation

Kevin Bieksa during his days playing with the Vancouver Canucks. (Photo: commons.wikimedia.org)
Bieksa to guest on free Canucks Alumni ‘Hot Stove’ on Zoom app

Former NHL player has become a game analyst on Sportsnet

A small crash in the water south of Courtenay Saturday afternoon. Two men had to be rescued, but reports indicate there were no serious injuries. Photo by Mike Chouinard
Small plane crash in Comox Valley waters Saturday afternoon

Two rescued from plane that had flipped in water; no serious injuries reported

A photo from 2017, of Nuchatlaht First Nation members outside court after filing a land title case in B.C. ( Submitted photo/Nuchatlaht First Nation).
Vancouver Island First Nation calls on B.C. to honour UNDRIP in historic title case

Nuchatlaht First Nation says Crown counsel continues to stall the case using the ‘distasteful’ argument that the Nation ‘abandoned’ their land

West Vancouver Island’s Ehattesaht First Nation continues lock down after 9 active cases were reported today after a visitor tested positive last week. (Ehattesaht First Nation/Facebook)
Ehattesaht First Nation’s COVID-19 nightmare: nine active cases, a storm and a power outage

The Vancouver Island First Nation in a lockdown since the first case was reported last week

114 Canadians were appointed Nov. 27 to the Order of Canada. (Governor General of Canada photo)
Indigenous actor, author, elder, leaders appointed to Order of Canada

Outstanding achievement, community dedication and service recognized

The Ahousaht First Nation confirmed its first case of COVID-19 on Nov. 26, 2020. (Westerly file photo)
Ahousaht First Nation on lockdown over COVID-19

“Emotions are high. The anxiety is high. We want our community to pull through.”

Most Read