Snaw-Naw-As First Nation v Canada (AG), 2020 BCSC 979

Claim dismissed. It is understandable the First Nation no longer wants their reserve lands bifurcated by a railway functioning under limited use, but it is not so abandoned that “inefficient” use triggers the right of reversion.

Indigenous Law Centre
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The plaintiff, Snaw-Naw-As First Nation, wants a maintained railway that has bifurcated its reserve lands for decades, no longer alienated from them. The railway is located on Vancouver Island runs from Victoria to Courtenay and transects 1.3 km of the plaintiff’s reserve lands in Nanoose. The right of way is in favour of the defendant, Island Corridor Foundation [“ICF”], that currently owns and operates the railway. It is self-evident that the bifurcation of the plaintiff’s lands imposes limitations on each side and impedes access and development.

At issue is whether this 1.3 km strip of railway should remain alienated from the plaintiff as the infrastructure has deteriorated and rail service has been discontinued except for freight traffic on the Nanaimo spur line. There are circumstances where a court will find that lands held for railway purposes have ceased to be so held and as a result ownership of the right of way ends. However, no authorities have been located that holds a right of way be set aside where the owner holds the lands expressly for railway purposes, uses them for alleged railway purposes, even if in a limited way, and intends to continue to do so. Nor have authorities been found that a right of way may be set aside on the basis of something that may happen in the future.

A formal process must be undertaken to declare or designate the railway “inactive” and to apply for its closure, and there is no intention on the part of the defendant to do so. The entire railway is treated under all laws and regulations as an active railway, although such do not require that actual freight and passenger services be provided. The defendant and its stakeholders operate on the basis that the railway is open and remains active and they continue to conduct business, undertake activities, satisfy all safety regulations, and incur expenses on this basis. Therefore, the claim must be dismissed.