Snaw-Naw-As First Nation v Canada (AG), 2021 BCCA 89

Application dismissed. Cowichan Tribes does not meet the criteria for a public interest intervention. It does not have a sufficiently broad representative base regardless of its size as a single First Nation, to be a public interest intervenor in the Snaw-Naw-As First Nation’s appeal regarding the status of a railway that runs through reserve lands. Cowichan’s similar litigation to the underlying appeal can be adequately presented by the appellant.

Indigenous Law Centre
Indigenous CaseWatch Blog

Cowichan Tribes [“Cowichan”] seeks leave to intervene an appeal by the Snaw-Naw-As First Nation [“SFN”] concerning the status of a railway right of way that runs through the SFN reserve. The dispute underlying the appeal concerns the E&N Railway on Vancouver Island [“Railway”] and the grant of a right of way through reserve lands. Use and operations of the Railway changed and declined over time, eventually being contracted out for some freight use.

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 is subject to a right of way in favour of ICF. SFN sought a declaration that its lands subject to the right of way were no longer being used for railway operations and purposes, and a corresponding declaration that the lands revert to the administration and control of Canada for the use and benefit of SFN as part of the SFN reserve. SFN asserted that the railway corridor was not being used for railway purposes, had been abandoned, and there was no business case for the ICF to restore and operate it. The trial judge found that there had been no formal abandonment of the railway, as ICF had not abandoned efforts to fulfill its mandate despite lack of funds, and was maintaining the railway corridor to the extent possible. In the appeal, the SFN alleges errors of law by the trial judge.

In this matter, Cowichan, a band within the meaning of the Indian Act with reserve lands in and around the Cowichan Valley on Vancouver Island, is a large First Nation with over 5,000 members. Similar to SFN, the Railway passes through Cowichan’s reserve lands. Cowichan is also a member of ICF. Cowichan commenced litigation in the Supreme Court of British Columbia, making similar claims to SFN. Cowichan did not advance its action, as it was waiting for the outcome of the SFN litigation. Cowichan seeks to intervene on a public interest basis to make submissions on the principles that should guide the court’s interpretation of the interests at stake in light of the character of the right of way as Indigenous lands.

Section 10(2)(a) of the Court of Appeal Act provides that a justice may make an order granting leave to intervene as an order incidental to an appeal. A justice’s discretion to grant intervenor status is governed by the following principles: 1) the applicant must have a direct interest in the matter; or 2) must have a public interest in a public law issue in question; and 3) can make a valuable contribution or bring a different perspective to a consideration of the issues on appeal that differs from that advanced by the parties (Halalt First Nation v British Columbia (Environment), 2012 BCCA 191).

Cowichan does not claim to have a direct interest in this appeal and acknowledges the importance of the decision as precedential value in its own case. As a proposed public interest intervenor, it must have a distinctive perspective on the interpretation of the right of way that would be of assistance to the court (Equustek Solutions). While an intervenor’s submission may support one party’s position, the intervenor’s role is not to support the position of a party but to make principled submissions on pertinent points of law (Araya v Nevsun Resources Ltd, 2017 BCCA 402). Repetition is to be avoided and the appeal must remain focused on the issues raised by the parties (Ahousaht Indian Band and Nation v Canada (AG), 2012 BCCA 330; British Columbia Civil Liberties Association (AG), 2018 BCCA 282).

In consenting to Cowichan’s application, SFN submits that the trial decision did not engage the Indigenous perspective, and hearing from another First Nation at the appellate level would assist the court to understand the nuance and contours of the Indigenous perspective. Although Cowichan seeks only public interest intervention, however, its own interest in this litigation distorts the basis for this application. In assessing a proposed public interest intervenor, the court’s focus is not on the interest of the intervenor but on the court’s interest in ensuring that important points of view are not overlooked. The Court is not satisfied that Cowichan’s distinct perspective about the principles of interpretation of historical takings will be of assistance.

The broader interpretive principles can be adequately presented by SFN and Cowichan’s proposed submissions are largely duplicative of those of SFN. The focus will be the interpretation of the limiting conditions of the right of way in the context of the sui generis nature of reserve lands. In all of these circumstances, Cowichan does not meet the criteria for public interest intervention and the application is dismissed.

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
Indigenous CaseWatch Blog

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.