Case Brief: Snaw-Naw-As First Nation v. Canada (Attorney General), 2021 BCCA 333
By Christopher Devlin and Courtney Jacklin
What this case is about
In 1912, the federal government granted a right of way to the E&N Railway Company through Snaw-naw-as First Nation’s (“SFN”) reserve lands. The grant was subject to a condition that the lands were “actually required for railway purposes”. This created a reversionary interest: if the lands are not used for railway purposes, they revert to the administration and control of Canada for the use and benefit of SFN as reserve land.
SFN sought a declaration that the right of way was no longer being used for railway purposes such that the lands revert to the administration and control of Canada. The rail service was discontinued in 2003 and the railway infrastructure has since deteriorated significantly. The Island Corridor Foundation, which has owned the railway since 2005, argued that the right of way is still used for railway purposes despite the discontinuation of service. The Island Corridor Foundation continues to maintain the railway corridor and, if it is able to secure sufficient government funding, intends to restore rail service.
The court considered whether the right of way lands continue to be “actually required for railway purposes”.
What the Court found
The issue on appeal was whether the possibilities for restoration and future use of the rail corridor as an active railway were sufficient to conclude the right of way in issue here continues to be actually required for railway purposes.
The court applied the principle of minimum impairment to the interpretation of the railway purposes condition. The principle of minimum impairment requires the Crown, where its fiduciary duty is engaged, to impair the “Indian interest” in land as little as possible. The minimal impairment principle serves to balance the public interest (where the Crown does not have a fiduciary duty) and the Aboriginal interest (where it does), and is consistent with the policy of preventing the erosion of the Aboriginal land base that underlies the rule of inalienability under the Indian Act.
Applying the principle of minimal impairment, the court concluded in this case that a right of way is no longer “actually required for railway purposes” when there is a cessation of railway services to an extent that the purpose for which the lands were taken no longer serves the public. The court listed three objective factors: (i) the cessation of rail services must be more than temporary, (ii) there must be no intention to restore the railway, and (iii) there must be no reasonable likelihood of doing so.
The court found that the cessation of rail service along the railway corridor is beyond temporary. The railway corridor is currently unfit for safe operation and any future use will require substantial government investment. While the Island Corridor Foundation intends to restore rail service if it can secure sufficient funding, the reasonable likelihood of restoring service depends on the likelihood of provincial and federal government funding. The court noted that there are no current funding commitments, no concrete plans of restoration, and no time frames.
While the Province has not foreclosed the possibility of restoring rail service, the court noted that Canada has been conspicuously absent leaving an “evidentiary void”. The railway served the public for many years since it was originally constructed over a century ago, it has been in decline for many years and in disuse for less than a decade, and the consideration of whether it may again serve the same public interest in the 21st century will take time.
To determine whether there is a reasonable likelihood of restoration, Canada must re-engage and consider whether restoration is in the public interest. The court provided Canada with 18 months to decide whether it will approve funding for infrastructure improvements on the segment of the railway corridor that includes SFN’s reserve. If Canada does not approve funding or does not make a decision within 18 months, SFN may return to court to enforce its right of reversion.
Why this case is important
This case is important because it affirmed that the principle of minimal impairment does not only apply at the time of a Crown taking of reserve land but also continues post-expropriation including with respect to the interpretation of enactments relating to Indigenous peoples. Ambiguous expressions in Crown grants, such as “required for railway purposes”, should be interpreted in a way that is favourable to the Indigenous interests.
Where there is a right of reversion, the mere possibility of future use is insufficient. There must be a reasonable likelihood that the lands will actually be used for the purpose they were granted for. While SFN technically lost the appeal, it now has a clear path forward to assert its right of reversion in the near future.