E&N: derailment ahead?

By Roszan Holmen, July 2016

A First Nation’s claim to Vancouver Island’s rail corridor could spell the end of the E&N revival.

E&N DaylinerRUN A TRAIN, OR LOSE THE CORRIDOR. That’s the latest message from the Attorney General of Canada, in its response to a First Nation’s lawsuit. The Snaw-Naw-As is calling for a return of the land taken from its reserve more than 100 years ago for the purpose of extending the E&N rail line to Courtenay. In December, it filed a civil claim in the BC Supreme Court against the Island Corridor Foundation and the Attorney General.

This spring, the AG filed its response, sending a clear message to the ICF: the clock is ticking to fix the tracks and revive the railway.

When the Right-Of-Way through Snaw-Naw-As territory ceases to be used for “railway purposes,” the land reverts to Canada in trust for the Snaw-Naw-As, reads the AG’s response. If successful, the lawsuit could remove a 1.4-kilometre section from the midpoint of the 225-kilometre railway line, ending any hope of reviving passenger service from Courtenay to Victoria. The ruling could also set a precedent for the other 12 First Nations whose reserves the corridor intersects.  

“The Island Corridor Foundation says it was founded to protect the Corridor. Unfortunately, they’ve also inherited a bunch of historical grievances,” said Snaw-Naw-As Chief Brent Edwards. 

These grievances date back to the creation of the reserve.  

In 1877, the Joint Indian Reserve Commission carved out the boundaries for what is now the Snaw-Naw-As reserve on the south shore of Nanoose Bay. At the time, a wagon road intersected the reserve. In 1912, the reserve was sliced a second time when the Canadian Pacific Railway was granted a 10.79-acre Right-Of-Way through the 140-acre reserve for $650.

Today, that sleepy dirt road has grown into  a four-lane, divided highway, effectively cutting the community in two, without so much as an intersection to connect both sides. Adding to the frustration is the E&N’s current state of limbo.

It’s been five years since the emergency suspension of the E&N’s passenger rail service, and almost two years since the last freight train travelled this section of rail. For the 250 members of the Snaw-Naw-As, the unused corridor represents nothing but an opportunity cost.

“That railway is in our way,” said Chief Edwards. “For us it’s really simple. That piece of property is not being used for what it was expropriated for…so the civil claim is basically asking to have that portion of property returned to us so we can make better use of it.”

Hypothetically, the same logic could apply to the road: “If they invented flying cars, and they stopped using Highway 19, we would expect them to give that property back,” he said. 

“Snaw-Naw-As is really pushed to its limits of its ability to develop,” said Robert Janes, the lawyer representing the Snaw-Naw-As. For instance, the rail corridor monopolizes highway-side land that could be commercially developed. Where the tracks split off from the highway, they create a wedge of unusable land. Also, the Nation is working on building a new traffic light to better connect the community, but the adjacent rail crossing adds complexity and expense, Janes explained. 

“Snaw-Naw-As needs are such that it cannot just stand by and wait until some day somebody decides to do something about the railway,” said Janes. “My hope is the political actors behind the Island Corridor Foundation use this (case) as an opportunity to evaluate what really are their needs…We don’t anticipate there will be any significant rail traffic between Nanaimo and Comox at any time in the future.” 

To win its civil suit, the Snaw-Naw-As must convince the judge of a two-point argument: first, that rail is dead, at least running north of Nanaimo; and second, that in this scenario, the Snaw-Naw-As has an historical claim to the corridor within its reserve boundaries. We’ll look at the case for both. 

 

IN ITS NOTICE OF CIVIL CLAIM, the Snaw-Naw-As argues the Right-Of-Way through its territory is no longer being used for the railway, and there is no reasonable prospect that railway infrastructure will be restored to a condition sufficient to operate trains.

It’s an argument the Island Corridor Foundation rejects entirely. 

“The railway continues to operate” according to its filed response. The ICF continues to maintain tracks and crossing signals, and continues to consult with stakeholders, it argues. Further, the ICF says it intends to refurbish the rail corridor, and has raised more than $20 million to do so. 

On this issue, the Attorney General takes no position, claiming no knowledge of the state of rail operations. 

It’s a conspicuous silence, considering track upgrades have been waiting on federal approval for more than four years, thereby tying up a matching provincial grant. To quickly recap: In April 2012, Infrastructure Canada pledged $7.5 million for the E&N, pending completion of five conditions. For instance, the ICF must confirm no further federal investment will be required, and must pass a federal project review. 

To this day, Infrastructure Canada will not say which of the conditions have been met, or give a timeline for a funding decision. Instead, it says only that it “is reviewing the (Snaw-Naw-As) lawsuit to understand any potential impacts,” according to a written response. 

It’s a bit of a circular argument: The federal government won’t hand over the money because of the lawsuit, and the lawsuit could win because of the lack of federal funding required to kickstart track upgrades.

Meanwhile, regional funding commitments are now starting to unravel, poking holes in the ICF’s $20.9 million plan to upgrade the tracks. What’s more, there’s plenty of evidence to suggest the upgrade plan does not pass muster to begin with, and may not pass a federal review.

So is rail dead? Officially, no. Realistically, maybe. 

 

IF THE ISLAND CORRIDOR FOUNDATION is eventually forced to abandon its mission to revive the rail line, the future of the corridor depends on whom you ask. 

According to the ICF, the answer is straightforward. 

“The corridor is owned by the Island Corridor Foundation as fee simple,” said ICF chair Judith Sayers. “I’ve never seen a court take away fee simple lands from anyone…If we ever get to that point where we can’t get the train going…then of course we’ll continue to use it as bike paths and trails.” 

This Plan B might not be realized without a fight, however. If the Right-of-Way reverts to Canadian ownership in trust for the Snaw-Naw-As—as the AG argues—it’s clear the First Nation will have little appetite for cycling trails. 

“How can we support people utilizing that as a recreational thoroughfare when we administrate poverty?” asked Chief Edwards. “One of the reasons we administrate poverty is our access to infrastructure and lands…are being hindered by a corridor that’s not being used.”

Resentment toward the E&N is not unique to the Snaw-Naw-As. 

“Songhees does not support the Island Corridor Foundation,” said its Chief Ron Sam in an email. “We share the same frustrations of Snaw-Naw-As and other Nations whose lands this rail line impacts.” 

Judith Sayers says she can sympathize, though she doesn’t agree. She has a unique insight into the issue, as chair of the Island Corridor Foundation, but also as a former Hupacasath Chief and former chair of National Aboriginal Economic Development at UVic. 

“The E&N land grant has been a huge issue for most of the First Nations on Vancouver Island; it’s an outstanding issue that needs to be resolved,” she said. However, Sayers insists the federal government created these problems and needs to be the one to resolve them—not the ICF. 

“We’ve always looked at this as an opportunity for First Nations to have a say in the rail running through their communities,” Sayers said, adding the E&N promises new economic opportunities. 

Now, her challenge is to prove the case for rail, and convince her funders. It will be no small job and time is running out. 

Roszan Holmen, a producer for CFAX 1070, has covered the E&N and ICF’s challenges in previous Focus articles, including her Webster award-winning feature “More Red Lights Ahead?” (Dec 2014) and “Critical Crossroads for Rail on the Island” (May/June 2016).