Case information

Aboriginal law — Real Property — Indian reserves — Easements — Rights of way —Reversionary interests — First Nation seeking reversion of right of way granted on reserve land for railway purposes where rail service has been discontinued but railway owner continues to seek to restore railway — Under what circumstances should expropriated reserve lands revert to a First Nation? — How do the fiduciary principles of a bona fide public purpose and minimal impairment apply to determine whether an expropriated right of way reverts to a First Nation? — How should the statutory conditions imposed by previous Railway Acts apply to determine whether an expropriated right of way reverts to a First Nation? — How do the principles of reconciliation and access to justice apply to ensure that litigation is resolved efficiently and with finality?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

This application concerns the grant of a right of way through the reserve lands of the applicant, Snaw naw as First Nation (“SFN”). This right of way was granted to a railway company in 1912 as part of a rail corridor on Vancouver Island. The respondent, Island Corridor Foundation (“ICF”), has owned the railway since 2005. In recent years, railway use has declined and the railway infrastructure has deteriorated. Both passenger service and freight service were discontinued. ICF maintains various aspects of the railway and has not abandoned its efforts to restore and run the railway. SFN sought a declaration that its lands subject to the right of way were no longer being used for railway purposes, and a corresponding declaration that the lands revert to Her Majesty the Queen in Right of Canada (“Canada”) as part of its reserve. The trial judge concluded that objectively it could not be said that the right of way was no longer required for railway purposes. The Court of Appeal, by majority, dismissed SFN’s appeal. It found a void in the evidence on Canada’s part, and concluded that in order to determine whether restoration of the railway is a reasonable likelihood, Canada must re engage in this issue and decide if restoring the rail corridor is in the public interest. In dismissing the appeal, it did so with liberty to SFN to bring the matter back before the Court of Appeal if Canada determines that it will not approve funding for infrastructure improvements on the segment of the corridor that includes the SFN reserve, or does not make a determination, within 18 months. A dissenting judge would have allowed the appeal.