IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Snaw-Naw-As First Nation v. Attorney General of Canada, 2020 BCSC 979 Date: 20200630 Docket: 154903 Registry: Victoria Between: Snaw-Naw-As First Nation Plaintiff And: Attorney General of Canada and Island Corridor Foundation Defendants Before: The Honourable Mr. Justice Punnett Reasons for Judgment Counsel for the Plaintiff: K. Brooks and M. Price Counsel for the Defendant: J. Chow, Q.C. Attorney General of Canada and D. McIntosh Counsel for the Defendant: G. Plant, Q.C. Island Corridor Foundation and S. Gyawali Place and Date of Trial: Victoria, B.C. February 24-28, 2020; and June 8, 2020 Place and Date of Judgment: Victoria, B.C. June 30, 2020 Snaw-Naw-As First Nation v. Attorney General of Canada Page 2 Introduction [1] The E&N Railway (the “Railway”) on Vancouver Island runs from Victoria to Courtenay, with a branch line from Parksville to Port Alberni and a spur from the main line in Nanaimo to a rail yard and barge loading facility. The Railway, now owned and operated by the defendant Island Corridor Foundation (“ICF”), transects 1.3 km of the plaintiff First Nation’s reserve lands in Nanoose. This strip of land (the “Lands”) is subject to a right of way in favour of ICF (the “ROW”). [2] At issue is whether the Lands remain alienated from the plaintiff and subject to the ROW given the Railway infrastructure has deteriorated and rail service has been discontinued except for freight traffic on the Nanaimo spur line. [3] The plaintiff seeks: a) A declaration that the lands subject to the ROW revert to the administration and control of Canada for the use and benefit of Snaw- Naw-As as a part of the Snaw-Naw-As reserve upon the cessation of railway operations; b) In the alternative, a declaration that the lands subject to the ROW revert to the administration and control of Canada in trust for Snaw-Naw-As upon the cessation of railway operations. c) A declaration that the lands subject to the ROW are no longer being used for railway operations, and as such are no longer being used for railway purposes; d) A declaration that the lands subject to the ROW have reverted to the administration and control of Canada for the use and benefit of Snaw- Naw-As as part of the Snaw-Naw-As reserve; e) In the alternative, that the lands subject to the ROW have reverted to the administration and control of Canada in trust for Snaw-Naw-As. [4] ICF submits the Lands continue to be used for railway purposes and that the ROW has never been formally or informally abandoned, nor is there any intention to do so. Background [5] The history of the Lands in issue is summarized by the “Agreed Statement of Facts Re: Historical Facts” filed by the parties: Snaw-Naw-As First Nation v. Attorney General of Canada Page 3 Creation of SFN Reserve 1. Snaw-Naw-As First Nation, also known as the Nanoose Indian Band (“SFN”), is a band within the meaning of the Indian Act, R.S.C. 1985, c.1-5. 2. On or about January 4, 1877, the Joint Indian Reserve Commission allotted the Nanoose Indian Reserve (“SFN Reserve”). From this date forward, both Canada and British Columbia acted on the basis that the Reserve was controlled and administered by Canada for the use and benefit of SFN. 3. In or about 1878 the SFN Reserve was surveyed and it was determined that the SFN Reserve contained approximately 209 acres. 4. On July 30, 1938, British Columbia transferred the administration and control of, among other things, the SFN Reserve to Canada by Order in Council 1036. 5. The SFN Reserve is held for the use and benefit of SFN, pursuant to s. 18(1) of the Indian Act. Railway Right-of-Way over SFN Reserve 6. In 1871, pursuant to Term 11 of the Terms of Union dated May 16, 1871, BC agreed to join Canada on the basis that Canada was to “secure the completion” of a rail line across British Columbia: The Government of the Dominion undertake to secure the commencement simultaneously, within two years from the date of the Union, of the construction of a railway from the Pacific towards the Rocky Mountains, and from such point as may be selected, east of the Rocky Mountains, towards the Pacific, to connect the seaboard of British Columbia with the railway system of Canada; and, further to secure the completion of such railway within ten years from the date of the Union. 7. An agreement was reached between Robert Dunsmuir and his financiers to build the Esquimalt & Nanaimo Railway (the “Railway"), and in 1883 BC passed An Act relating to the Island Railway, the Graving Dock, and Railway Lands of the Province, S.B.C. 1884 c.14 (the “Settlement Act'). 8. The Settlement Act granted to Canada the land necessary to construct the Railway, and exempted any Indian reserve, settlements or naval or military reserve from the land grant. 9. The Settlement Act also incorporated the E&N Railway Company; whose purpose was to construct the Railway between Esquimalt and Nanaimo. 10. On or about April 21, 1887, by way of a Dominion Land Grant, Canada conveyed the lands to E&N Railway Company for the construction of the railroad. The relevant portions of the 1887 Land Grant stated: Snaw-Naw-As First Nation v. Attorney General of Canada Page 4 Now know ye that we do by these presents in consideration of the premise and under and by virtue of the said Act of Parliament of Canada [...] of Our Privy Council for Canada, Grant, Assign and Convey unto the Esquimalt and Nanaimo Railway Company, its successors and assigns, All and Singular the land situated on Vancouver Island which had been granted to Us by the Act of the Legislature of the Province of British Columbia passed in the Forty Seventh year of Our reign, chaptered Fourteen and entitled “An Act relating to the Island Railway, the Graving Dock, and Railway lands of the Province” in aid of the construction of the said line of Railway in as far as such lands are vested in Us and held by Us for the purposes of the said Railway or to aid in the construction of the same ... 11. By operation of s. 6 of the Settlement Act, this grant did not include the SFN Reserve. 12. In or about 1905, the Canadian Pacific Railway (CPR) acquired the E&N Railway Company (“E&N (CPR)”. 13. As the E&N Railway had been declared to be a “work for the general advantage of Canada” by s. 1 of the Act respecting the Esquimalt and Nanaimo Railway Company, S.C. 1905, c. 90, it fell within the purview of s. 6 of the Railway Act, R.S.C. 1906, c. 37. 14. To facilitate the extension of the E&N Railway line from Nanaimo to Port Alberni, the E&N (CPR) sought a right of way across the Snaw- Naw-As Reserve. 15. E&N (CPR)’s authority to “take possession of, use or occupy” Crown lands was pursuant to section 172 of the Railway Act, R.S.C. 1906, c.37 (“1906 Railway Act”). Subsection 172(2) states that: Any company may, with such consent, upon such terms as the Governor in Council prescribes, take and appropriate, for the use of its railway and works, so much of the lands of the Crown lying on the route of the railway as have not been granted or sold, and as is necessary for such railway ... 16. Subsection 172(3) further states that … a railway company acquiring Crown lands “may not alienate any such lands so taken, used or occupied.” 17. The SFN Reserve is Crown land within the meaning of subsections 172 (2) and (3) of the 1906 Railway Act. 18. Section 46 of the Indian Act, R.S.C. 1906, c. 81 (1906 Indian Act), as amended by SC 1911, c 14, permitted the taking of reserve lands for “the purposes of any railway” with the consent of the Governor in Council. It stated: No portion of any reserve shall be taken for the purpose of any railway, road, public work, or work designed for any public utility without the consent of the Governor in Council, but any company or municipal or local authority having statutory Snaw-Naw-As First Nation v. Attorney General of Canada Page 5 power, either Dominion or provincial, for taking or using lands or any interest in lands without the consent of the owner may, with the consent of the Governor in Council as aforesaid, and subject to the terms and conditions imposed by such consent, exercise such statutory power with respect to any reserve or portion of a reserve; ... 19. On October 16, 1907, E&N (CPR) requested permission from the Department of Indian Affairs for a right of way across the SFN reserve amounting to a strip of land about 50 feet wide on either side of the centre line of the Railway containing approximately 10.79 acres. 20. On November 30, 1908, the right of way plans were certified by the Department of Railways and Canals as lands “actually required for Railway purposes". 21. On or about July 30, 1912, the Governor in Council consented to the taking [of] a right of way of 10.78 acres of land through the SFN Reserve, pursuant to s. 46 of the Indian Act. The taking was formalized by federal Order in Council P.C.