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INTERESTS IN LAND - Extinguishment of easements - Positive easement - Right of way

Tuesday, October 05, 2021 @ 5:54 AM  

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Appeal by the First Nation from trial judgment dismissing its action for declaratory relief. In 2012, the appellant granted a right of way through its reserve lands to a railway company that was now owned by the respondent Island Corridor Foundation (ICF). After passenger service ceased and 2011 freight service ceased in 2014, except for freight traffic on a spur line, the railway infrastructure deteriorated. Restoration of full rail service required substantial funding from government. ICF continued to maintain the railway corridor and seek funding from the provincial and federal governments. ICF’s initial funding request in 2010 failed because conditions imposed by both governments were not met. ICF made no formal funding requests since its original request, and there were no current funding commitments from either level of government, no concrete plan of restoration, and no time frame. The appellant sought a declaration that the land subject to the right of way was no longer being used for railway purposes and that the lands reverted to Canada for its use and benefit as part of its reserve. The trial judge dismissed the action, holding the reversionary interest was not triggered by the mere cessation of traffic, considering ICF’s continued maintenance of the rail corridor, the interest of the stakeholders in restoring rail service, and the provincial government’s consideration of restoring the rail corridor as a public transportation option.

HELD: Appeal dismissed. The appellant could bring this matter back before the court if Canada determined that it would not approve funding for infrastructure improvements on the segment of the corridor that included the Reserve or did not decide within 18 months. The trial judge did not err in refusing to consider the appellant’s submission on alienation by the transfer to ICF, which was not a railway company, for failure to plead alienation. The trial judge considered and applied the correct legal principles regarding the requirements of pleadings. The trial judge identified the correct legal test to determine the meaning of the railway purposes condition. Whether the right of way continued to be required for railway purposes was a justiciable issue and not determinable at the sole will of ICF. The trial judge recognized that the test was objective and conducted a careful analysis of relevant objective facts, in addition to ICF’s intended future use, in assessing whether the right of way was no longer required for railway purposes. While the prospects for restoring rail service might be bleak, the options for restoration were not completely foreclosed by various levels of government, and future use of the rail corridor as an active railway remained a possibility. These considerations were sufficient to support the judge’s conclusion that the right of way in issue here continued to be required for railway purposes. Canada was not engaged in this issue since 2017. The province did a considerable amount of work in the past few years but had not yet given any priority to restoring intercity rail service. To determine whether restoration of the railway was a reasonable likelihood, Canada must re‑engage in this issue and decide if restoring all or part of the corridor was in the public interest, and if so, whether the cost to do so was also in the public interest. A period of 18 months from the date of this judgment was sufficient for Canada to determine whether it would approve funding for infrastructure improvements on the segment of the corridor that included the appellant’s Reserve.

Snaw-Naw-As First Nation v. Canada (Attorney General), [2021] B.C.J. No. 1980, British Columbia Court of Appeal, P.M. Willcock, B. Fisher and P. Abrioux JJ.A., September 14, 2021. Digest No. TLD-October42021004