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

Coaches with the Juan de Fuca Minor Hockey association have had to get creative during their weekly practices to keep players interested and improving their skills without physical contact. (Damian Kowalewich photo)
West Shore minor hockey coach shares what it’s like on the ice without parents, fans

Most practices consist of relay races, goalie shots and passing drills

The Songhees Wellness Centre is a symbol of First Nations strength in the region. Representatives of local First Nations will soon play a greater role in decision making and governance relating to the Capital Regional District. (Courtesy Royal Roads University)
Capital Regional District to add First Nations representatives to advisory committees

Board approves bylaw, looks forward to Indigenous input on future decisions

Central Saanich will investigate ways in which the municipality along with funding partners Sidney and North Saanich can financially support the Panorama Recreation Centre. (Black Press Media File)
Central Saanich to spell out options for financially supporting Panorama Recreation Centre

Municipality looks for best use of COVID-19 restart grant worth some $3.5 million

Willow, a kitten belonging to a Victoria family, was rescued by firefighters on Thursday after she got stuck in a basement drain pipe. (City of Victoria/Twitter)
Victoria kitten stuck in basement drain pipe rescued by firefighters

Willow the cat on the mend, owner feeling ‘enormous gratitude’

(Black Press Media file photo)
Blue-green algae bloom confirmed in Elk Lake, water-based activities not recommended

Blue-green algae can be lethal to dogs, cause health issues for humans

Justin Kripps of Summerland and his team have competed in Olympic action and World Cup competitions in bobsleigh. (Jason Ransom-Canadian Olympic Comittee).
QUIZ: Are you ready for some winter sports?

It’s cold outside, but there are plenty of recreation opportunities in the winter months

A health-care worker prepares a dose of the Pfizer-BioNTech COVID-19 vaccine at a UHN COVID-19 vaccine clinic in Toronto on Thursday, January 7, 2021. THE CANADIAN PRESS/Nathan Denette
COVID-19: Provinces work on revised plans as Pfizer-BioNTech shipments to slow down

Anita Anand said she understands and shares Canadians’ concerns about the drug company’s decision

(Black Press Media file photo)
From arts to environment, nominate your West Shore hero

Nominations for the Goldstream Gazette’s Local Hero awards are open to Jan. 15

Tourists take photographs outside the British Columbia Legislature in Victoria, B.C., on Friday August 26, 2011. A coalition of British Columbia tourism industry groups is urging the provincial government to not pursue plans to ban domestic travel to fight the spread of COVID-19. THE CANADIAN PRESS/Darryl Dyck
B.C. travel ban will harm struggling tourism sector, says industry coalition

B.C. government would have to show evidence a travel ban is necessary

(Phil McLachlan - Capital News)
‘Targeted’ shooting in Coquitlam leaves woman in hospital

The woman suffered non-life threatening injuries in what police believe to be a targeted shooting Saturday morning

JaHyung Lee, “Canada’s oldest senior” at 110 years old, received his first dose of the COVID-19 vaccine on Thursday, Jan. 14, 2021. He lives at Amenida Seniors Community in Newton. (Submitted photo: Amenida Seniors Community)
A unique-looking deer has been visiting a Nanoose Bay property with its mother. (Frieda Van der Ree photo)
A deer with 3 ears? Unique animal routinely visits B.C. property

Experts say interesting look may be result of an injury rather than an odd birth defect

Terry David Mulligan. (Submitted photo)
Podcast: Interview with longtime actor/broadcaster and B.C. resident Terry David Mulligan

Podcast: Talk includes TDM’s RCMP career, radio, TV, wine, Janis Joplin and much more

Lilly and Poppy, two cats owned by Kalmar Cat Hotel ownder Donna Goodenough, both have cerebellAr hypoplasia, a genetic neurological condition that affects their ability to control their muscles and bones. Photo by Alistair Taylor – Campbell River Mirror
VIDEO: Wobbly Cats a riot of flailing legs and paws but bundles of love and joy to their owner

Woman urges others to not fear adopting cats with disabilities

Most Read