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: “ 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.  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.  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.”
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.”