Tuesday, July 08, 2008
Union of B.C. Indian Chiefs say Province wilfully mislead or withheld information about BCRail
This astonishing information came in today as a comment which provided an URL for reference. BC Mary failed to achieve access to the site. Then Anonymous said...
THE link I gave you must be faulty because there is lots of discussion about BC rail for instance. Please review this item.
Posted: Sat Apr 24, 2004
UBCIC Critical of Proposed merger of BC Rail with CN Rail
Commissioner of Competition
Competition Bureau, Industry Canada
21st Floor, 50 Victoria Street
Hull, Quebec K1A 0C9
Facsimile: (819) 953-5013
April 23, 2004
Attention: Sheridan Scott, Commissioner of Competition
Dear Commissioner Scott:
Re: Proposed merger of BC Rail with CN Rail
The Union of B.C. Indian Chiefs (UBCIC) is concerned that the province
of B.C. may have willfully mislead or withheld information from the
Competition Bureau regarding the proposed merger of BC Rail and CN Rail.
Instead of meaningfully addressing its fiduciary legal obligations to
Indigenous Peoples, the government of B.C. has engaged in fraud and
deceit: details of the deal between B.C. and CN Rail (the
“Revitalization Agreement”) were kept secret, while the province gave
assurances that no Aboriginal Title or Rights would be impacted by the
Agreement. These assurances are blatant lies. Recently leaked portions
of the Revitalization Agreement indicate that the Agreement is for up to
a period of 900 years, and that B.C. may transfer Crown Lands (where
Aboriginal Title continues to exist and has not been ceded or otherwise
addressed) to CN Rail for $1.00 (one dollar).
We wish to draw your urgent attention to information that the
Competition Bureau is bound to consider in rendering a decision on
whether or not to approve the proposed merger (de facto sale) of BC Rail
and CN Rail:
a) Aboriginal Title and Rights exist along the BC Rail corridor, and are
constitutionally protected under s. 35(1) of the Constitution Act, 1982;
b) The BC Rail line and other operations run directly through the
reserve lands of twenty-five Indigenous communities in British Columbia;
c) The province of B.C. has legal fiduciary obligations to meaningfully
consult with Aboriginal Peoples prior to undertaking or authorizing land
transactions that will impact Aboriginal Title and Rights;
d) Indigenous Peoples and communities along the BC Rail corridor will be
severely and negatively impacted by this transaction;
e) The province of B.C. has not meaningfully consulted with Aboriginal
Peoples about the proposed merger (sale) of BC Rail to CN Rail, and
instead has engaged in fraud and deceit with the aim of withholding the
details of the agreement, and its full impact, from Indigenous Peoples;
f) The province of B.C. is not in a legal position to enter or complete
this transaction without engaging in good faith consultations with
Below, we set out further information regarding governments’ legal
obligations to Indigenous Peoples, and why we believe the Competition
Bureau must consider these facts prior to rendering a decision.
A. Aboriginal Title and Rights and Lack of Meaningful Consultation
The BC Rail corridor and rail bed are on Aboriginal Title Lands, and
it’s operations impact Aboriginal Rights. Both Canada and the province
of B.C. have fiduciary obligations to Indigenous Peoples regarding
Aboriginal Title and Rights in the BC Rail corridor which have not been
The province alleges that there are no Aboriginal Title or Rights issues
raised by this transaction, and therefore no duty to consult with, nor
to meaningfully address and accommodate Indigenous Peoples’ rights.
The province argues that there is no need to consult about the BCR/CNR
transfer because there is no “new” interest being created, merely the
continuation of an existing use. This is not a legally correct position.
The long-term lease (for a period of up to 900 years) transfers
effective ownership and control of the rail bed and rail line from B.C.
to CN Rail, and a transfer of this magnitude triggers a legal obligation
to consult. Any purported transfer of Aboriginal Title lands requires
the consent of Indigenous Peoples.
Indigenous communities who live alongside the BC Rail line have their
rights impacted daily, the building and on-going operation of the rail
line continue to impact upon Aboriginal Title and Rights and the use
that Indigenous Peoples can make of Aboriginal Title lands. A transfer
of effective ownership and operation of BC Rail from the provincial
Crown to a private corporation engages issues relating to fiduciary
obligations over the ongoing operation. Indigenous communities along the
BC Rail corridor adamantly oppose the transfer on their assessment that
this transfer will result in the violation of their Aboriginal Title and
Rights. This Indigenous opposition has been ignored, at the same time
that the Aboriginal Title and Rights impacts of this transfer have been
The Supreme Court of Canada has interpreted the constitutional
protection afforded to Indigenous Peoples rights under s. 35(1) of the
Constitution Act, 1982 and has said that meaningful and good faith
consultation is required where governments take actions that will impact
upon Aboriginal Title and Rights: Delgamuukw v. B.C. The
Supreme Court has also said that Aboriginal Title includes the right to
choose to what uses these lands can be put. Where a transaction will
significantly impact the Aboriginal Title of Indigenous Peoples, as this
transaction will do, the consent of Indigenous Peoples is required.
In Haida Nation v. Weyerhaeuser, the Haida Nation challenged the transfer and renewal of an existing Tree Farm Licence. The B.C. Court of Appeal held that there was an enforceable consultation duty on transfers or renewals of existing interests if they might impact upon
Aboriginal Title or Rights. The Haida and Taku River Tlingit v. Ringstad cases clearly found a consultation duty on government prior to the proof of Aboriginal Title and Rights in court. Subsequent to the Haida and Taku decisions, the issue of whether government can approve transfers of corporations, without consultation, where Aboriginal Title and Rights will be impacted was considered in Gitksan and other First Nations v. B.C. (Minister of Forests), where the B.C. Supreme Court ordered government to engage in good faith consultations with the aim of seeking “workable accommodations” of the Indigenous Peoples’ rights.
There has been no consultation with Indigenous Peoples. Instead, the province has acted in bad faith by keeping the details of this Agreement secret from Indigenous Peoples.
B. Interests in Reserve Lands
Where BC Rail operates on rights-of-way running through reserve lands
there are significant questions regarding the legality of B.C.’s
proposed transfer or long-term lease of these rights-of-way. The wording
of the right-of-way grants may prevent this transfer of effective
control and usage. The federal government must approve these transfers
as they hold reserve lands in trust for Indigenous Peoples, and the
consent of Indigenous Peoples is required.
As the full contents of the Revitalization Agreement have been kept
secret we cannot comment on the full impact, but it is likely that
conditions of the grants creating the province’s rights-of-way may
prevent a transfer of the nature contemplated by the Revitalization
Agreement. This issue affects interests in reserve lands, directly
engages federal fiduciary obligations, and must be addressed prior to
approval by the Competition Bureau.
C. Competition Bureau’s Legal Obligation to Consider government’s
failure to consult:
The UBCIC is concerned that the province of B.C. may have mislead the
Competition Bureau by claiming an exclusive right to transfer its
interests in BC Rail without first addressing the constitutionally
protected rights of Indigenous Peoples. In making the decision of
whether or not to approve the merger (transfer) of BC Rail to CN Rail
the Competition Bureau is under an obligation to inquire into the full
extent of governments’ consultations with Indigenous Peoples.
The Supreme Court of Canada has found that federally-created tribunals
must consider whether or not government has fulfilled their fiduciary
legal obligations to Indigenous Peoples in rendering their decisions. In
Quebec (A.G.) and Grand Council of the Crees v. Canada (N.E.B.)
<#_ftn5> the Supreme Court said that the National Energy Board “must
exercise its decision-making function, including the interpretation and
application of its governing legislation, in accordance with the
dictates of the Constitution, including s. 35(1) of the Constitution
The constitutional rights of Indigenous Peoples must be addressed. In
the absence of evidence of consultation this transaction cannot be
approved. There has been no consultation; Instead, the province of B.C.
willfully mislead and lied to Indigenous Peoples about this transaction.
The Competition Bureau must be mindful of existing constitutional rights
and consider the privatization deal from the perspective of the impact
that it will have on Aboriginal Title and Rights. Absent proof of
government’s fulfillment of its legal obligations to Indigenous Peoples,
this merger (transfer) cannot be approved.
The UBCIC recommends that:
1) The Competition Bureau require both the federal and provincial
governments to show evidence that they fully and meaningfully consulted
with Indigenous Peoples about the impact of this Agreement on Aboriginal
Title, Rights and interests in reserve lands including a full and complete disclosure of the details of the transactions, so that Indigenous Peoples can fully assess its impact;
2) The Competition Bureau advise the province that it considers the
application incomplete absent evidence of full, meaningful, and good
faith consultations with Indigenous Peoples, including a full disclosure
of all details of the agreement; and
3) That the Competition Bureau undertake a full public inquiry about
this matter, or request that the Competition Tribunal do so. Hearings
should be held in the Indigenous communities along the BC Rail corridor
whose Aboriginal Title, Rights and interests in reserves lands will be
directly and significantly affected.
The Competition Bureau is under a legal duty to refuse to approve this
transaction absent evidence that the federal and provincial governments
have fulfilled their fiduciary obligation to consult with Indigenous
Peoples. That consultation has not occurred. We urge the Competition
Bureau to hold the federal and provincial governments to account for
their failure to address the Aboriginal Title and Rights impacted by the
BC Rail/CN Rail deal.
We look forward to hearing from you how the Competition Bureau is
considering and addressing the constitutional rights of Indigenous
Peoples in its assessment of the BC Rail/CN Rail transaction. We would
be pleased to provide you with further information if this would be of
Union of B.C. Indian Chiefs
[Original signed by Chief Stewart Phillip]
Chief Stewart Phillip
C.C.: Union of BC Indian Chiefs’ Chiefs Council
First Nations Summit, Task Group
Vice-Chief Shawn Atleo, Assembly of First Nations, BC Region
National Chief Phil Fontaine, Assembly of First Nations, Ottawa
Honourable Lucienne Robillard
Minister of Industry
11th Floor, CD Howe Building
235 Queen Street
Ottawa, Ontario K1A 0H5 Facsimile: (613) 992-0302
Thomas D’Arcy McGee Building
90 Sparks Street, Suite 600
Ottawa, Ontario K1P 5B4 Facsimile: (613) 957-3170
Anonymous 3:10, I am still boggle-eyed over this. It's the first I've heard about this kind of conflict-of-interest (if that's what it's called). Would you mind giving me another URL to access the site this comes from ... it could've been my fault that I couldn't get the first URL to work. Or Google's fault -- it often balks like this. Or the computer's fault. I think this is the final signal that I need a new computer.
Thanks again, very much. - BC Mary.
More at: http://www.turtleisland.org/discussion/viewtopic.php? where I found this quote:
"BC Accused of offering First Nations HUSH MONEY"
without the quotes in a google search it should show up first on the list
Wonder if BC Rail would have prospered under this new initiative?
July 7, 2008
plans two British Columbia port terminals
Two new port facilities will be built in B.C. to help ship Saskatchewan potash around the world.
A Saskatchewan potash export agency is planning to almost double its West Coast shipping capacity with new port facilities in Prince Rupert and North Vancouver.
Canpotex Limited plans to add about 11 million tonnes of potash shipping capacity to its current 12 million tonnes of annual capacity by the end of 2012.
The projects include a new greenfield terminal on Ridley Island near Prince Rupert, B.C. and a brownfield terminal expansion adjacent to Neptune Bulk Terminals (Canada) Ltd. in North Vancouver, B.C.
“These projects are essential and strategic steps in preparing for long-term growth in global potash demand” said Steven Dechka, president and CEO of Canpotex.
“With Canpotex shareholders working to significantly increase production over the next several years, we have a responsibility to build on our long-term ability to deliver this essential nutrient to offshore markets.
“In addition to increasing shipping capacity, the terminals will provide access to the fastest shipping routes to certain key offshore markets such as China.”
The combined cost of these projects is expected to be in excess of $500 million.
The Vancouver Fraser Port Authority, also known as Port Metro Vancouver, is on board with the announcement.
“We are encouraged that this important Canadian commodity will continue to be shipped through Canadian ports and at substantially increased volumes,” said Captain Gordon Houston, president and CEO of Port Metro Vancouver.
“We look forward to expanding our existing potash capacity...”
Both projects are subject to the finalization of acceptable agreements with the respective port authorities and other stakeholders.
The projected increase in potash export capacity complements the North Shore Trade Corridor Initiative, a port program to develop road and rail enhancements in the Lower Mainland.
Partners in this initiative include Port Metro Vancouver, CN Rail and North Shore terminal operators, along with Transport Canada, the B.C. Ministry of Transportation and TransLink.
Port Metro Vancouver is Canada’s largest and most diversified port, annually trading more than $53 billion in goods with more than 100 trading economies. Port activities generate 69,000 jobs across Canada with $4 billion in gross domestic product and $8.9 billion in economic output.
Canpotex is the offshore marketing company owned by the three Saskatchewan potash producing companies: Agrium Inc., Mosaic Canada Crop Nutrition, LP, a subsidiary of The Mosaic Company, and Potash Corporation of Saskatchewan Inc.
Exact Location unknown, especially in light of the fact that the postal code given for the property is in the City of North Vancouver (two blocks west of Lonsdale and one block up from Burrard Inlet on Esplanade). Maybe what BCR Properties is really trying to say is that their headquarters on the North Shore is for sale as well.
Address: Lakeside Drive
City: Williams Lake
Region: Prince George
Postal Code: V7M 3J3
Property Size: 7,000 sq.ft
Full Description: 40 sleeping rooms, kitchen and recreation room. Possible use, crew quarters at a camp.
UBCIC Legal Review at
For Background refer to the BC Rail Revitalization document at
It amazes me that so many people were on to this all those years ago, and still nothing substantive has taken place to air the facts.
Anyway the extent of the possibilities are staggering to imagine and nearly nausea inducing at the same time.
To Anonymice 10:33 and 7:34,
Yes, it's logical that many people know many things about the BCRail Case. Thank goodness they are speaking out.
From day #1 (that would be Dec 29/03) I've hoped people would find ways of revealing what they saw, heard, know about the sale of BCRail.
Well, several have done so -- right here on this web-site -- and we owe them tremendous appreciation.
As well, we owe it to them and ourselves to follow up on the links, URLs, clues they provide.
I'm certain, dmc, there's "STILL more to come" ... some of it, even, at trial.
That's why we need to activate the TV camera in the Supreme Courtroom for the BCRail Case. NOT commercial TV ... we need the fixed focus camera without comment or advertising; TV like the Legislature or House of Commons sessions: just one eyeball watching, enabling viewers all around B.C. to feel that they are right there, watching/hearing the evidence as spoken, deciding for themselves.
Thanks for the potash bulletin and the surprising announcement that "we" are going to build two new ports. Huh?
Next reaction is why on earth are we re-re-naming Vancouver again? Jumpin' Jehosophat:
It's Port Metro Vancouver now????
I gotta look up "obscurantism" in the dictionary while asking myself: Is nothing sacred?
It used to be that when Customs & Immigration asked me "Where were you born?" I could say "Vancouver."
Now, I'm beginning to wonder. Will it be Port Best Place on Earth Metro Not GVRD & Not GasTown Place once discovered by Capt. George VANCOUVER??
I would suggest that the province (or the BC liaR cabinet) has not "meaningfully consulted" with any of the people of BC, with the possible exception of Gordo's neighbor, the CEO of Canadian National Railway, and perhaps a few others of his ilk! Just replace "Aboriginal" and "Indigenous" and the statement is just as accurate.
Read this Especially about IPOs and BC Rail interesting
The article has a copy write on it
Canadian National Railway Company (CN)
State of the Railroad and Indigenous Nations
Distributed: April 12, 2005, Winnipeg, MB, Offices of the Assembly of Manitoba Chiefs
Prepared by: Janice G.A.E. Switlo, B.Com (Sauder), LL.B (Osgoode) (800) 332-1191 firstname.lastname@example.org
Exceeding of statutory authority means CN has void titles and transfers thereof are void. CN owes significant liability to the owners from whom lands were originally purported to have been lawfully taken and to transferees of same, and the value of CN assets is inflated.
Exceeding of statutory authority means BC Rail has void titles and transfers thereof to CN are void, and the value of BC Rail assets is inflated thereby inflating the value of BC Rail shares purchased by CN, and the value of CN assets is inflated. “BC Rail’s real estate subsidiary owns a considerable amount of non-railway related land.”(BC Backgrounder Nov. 25, 2003)
Exceeding of statutory authority means BC Railway Company has void titles and transfers of interests therein (i.e. to enable CN to operate thereon) are void, thus precluding the ability for CN to operate thereon. British Columbia has expressed increased interest in solidifying rights of way to insulate from challenge.
There is no disclosure of any of the above in CN business risks section for its annual report, the Form 40-F, and the Annual Information Form.
“Aboriginal claims” disclosure is inadequate and does not cover the void title lands, covering only lands lawfully taken that remain certain so long as they continue to be used for the railway lines. The $15 million trust established by the B.C. Rail Benefits (First Nations) Trust Act, SBC 2004, c. 58 is completely unrelated to all of the above:
“9 (1) The purpose of the B.C. Rail Benefits (First Nations) Trust Account is to provide funding for Beneficiary First Nations' projects that are approved by the directors of the B.C. Rail Benefits (First Nations) Trust and that advance one or more of the following goals:
(a) economic development;
(b) educational advancement;
(c) cultural renewal.”
Indigenous Nations want their land back and they want restitution, including for waiver of tort (including the tort of trespass and the tort of conversion) and accounting of profits.
CN is hereby put on notice of all of the above, which may trigger duties to shareholders and to the United States Securities and Exchange Commission and the Canadian Securities Regulators.
On April 20, 2005, E. Hunter Harrison, president and chief executive officer and director, Claude Mongeau, executive vice-president and chief financial officer, and James Foote, executive vice-president, sales and marketing will provide CN’s outlook in a presentation/conference call/webcast in Toronto, Ontario at the Four Seasons Hotel, Lancaster Room, 21 Avenue Road at 3 p.m. ET.
On April 21, 2005, the Annual Meeting of CN’s Shareholders is being held at Fairmont The Queen Elizabeth, 900 René-Lévesque Boulevard West, Le Grand Salon, Montreal, at 10:00 a.m. ET.
Failed market confidence in CN fuelled by complex litigation that will likely proceed to the Supreme Court of Canada and liabilities arising from void titles and transfers thereof throughout the rail network requiring restitution damaging share values and the ability to raise capital, such as the estimated $4 billion needed to connect Alaska to the North America rail network:
“The Canadian government is set to join in a railway feasibility study that [may] lead to the construction of train tracks through the Yukon linking British Columbia and Alaska. … The cost of connecting Alaska to the North American rail network has been estimated at $4 billion. … Depending on the route chosen, the tracks would run through Dawson City and Ross River in the Yukon en route to Fort Nelson, or through Whitehorse to Dease Lake, proposed terminus of a long-planned but never-finished B.C. Rail extension north of Prince George.”
(Randy Boswell, “Rail Link proposed between northern B.C, central Alaska,” Canwest news Service, March 22, 2005.)
Repercussions for CN’s failure to disclose in Form 40-F filed with the United States Securities and Exchange Commission, and the Annual Information Form filed with the Canadian Securities Regulators.
“Only a fool would ignore what is happening in today’s market. To succeed, a CEO must now demonstrate a high degree of corporate responsibility.”
(E. Hunter Harrison, President and CEO)
“Within the rail industry, CN has moved from worst to first. We're now the best railroad in North America. Best in service. Best in operating efficiency. Best in safety. Best in return on investment to the shareholder.”
(E. Hunter Harrison, President and CEO)
Failure to act in a timely and fair manner to resolve matters satisfactory to Indigenous Nations may attract less patient responses than protracted litigation, including direct action.
CN pursue timely and fair resolution of the issues with the Indigenous nations. CN is in the position to do so financially and through application of human resources and expertise, being in the best interests of CN and the Indigenous nations:
“March 29, 2005 - CN announced today it has successfully refinanced, by way of amendment, its US$1-billion revolving credit facility for a five-year period with an international banking syndicate led by BMO Nesbitt Burns Inc.
The credit facility is available for working capital and general corporate purposes at CN, including back-stopping the company’s commercial paper program. It contains customary terms and conditions and extends to March 2010 the current credit facility, which was scheduled to expire in December 2005.”
If CN truly “seeks to promote a harmonious working relationship with the many Aboriginal communities,” what is involved and required goes well beyond issues of access, clean up, flashing lights at crossings, derailment training, ice and snow removal, and community and cultural support, which are essentially a given. The core is land and restitution.
CN was incorporated in 1922 by special act of the Parliament of Canada. CN was continued under the Canada Business Corporations Act as authorized by the CN Commercialization Act, given effect by Certificate of Continuance dated August 24, 1995. On November 9, 1995, CN filed Articles of Amendment in order to subdivide its outstanding Common Shares. As of November 28, 1995, CN ceased to be a Crown corporation. The Canadian National Railways Act was repealed, 1995, c. 24, s.19.
“CN will pay the Province $1 billion in cash to acquire the outstanding shares of BC Rail Ltd., along with the right to operate over BC Rail’s railbed under a 60-year-lease, which is renewable for a further 30 years.
BC Rail’s railbed will remain in public hands - under the BC Railway Company, which remains a provincial Crown corporation - with CN assuming responsibility for rail transportation and infrastructure maintenance.
Railway infrastructure will be returned to the Province in present condition at the end of the lease.”
(BC Backgrounder Nov. 25, 2003)
“July 2, 2004 - CN announced today that it has reached a consent agreement with Canada’s Competition Bureau regarding its BC Rail Partnership … The consent agreement, filed with the Competition Tribunal today, builds on CN’s promise of last fall to share merger efficiencies with BC Rail shippers and assure them competitive transportation options through its Open Gateway Rate and Service Commitment. Under that commitment, shippers will be able to choose CN to reach markets, enjoying faster transit times, or they can route traffic over BC Rail to connecting railways at the Vancouver gateway at lower rates and with better service than exist today on BC Rail. CN has negotiated agreements with three connecting railroads at Vancouver - Canadian Pacific, Burlington Northern Santa Fe and Union Pacific - to ensure shippers routing options.
The consent agreement will also maintain competitive rates and service for grain shippers in the Peace River region. …
The Competition Bureau began its review of the CN-BC Rail Partnership after CN and the British Columbia government announced Nov. 25, 2003, that CN would acquire all shares outstanding of BC Rail, and the right to operate over BC Rail’s roadbed under a long-term lease. Provincial legislation approving the partnership became law in December 2003.” (CN)
“On July 14, 2004, CN completed its $1-billion transaction with the British Columbia government, acquiring BC Rail Ltd. and the BC Rail Partnership, and the right to operate over BC Rail’s roadbed under a long-term lease. The transaction received regulatory clearance on July 2, 2004.” (CN)
Stocks: NYSE: CNI TSX: CNR
* Assets (Cdn): $19,271,000,000 (2004) $20,337,000,000 (2003)
* Revenue (Cdn): $6,548,000,000 (2004) $5,694,000,000 (2003)
* Net Income (Cdn): $1,297,000,000 (2004) $1,014,000,000 (2003)
CN posted “best ever” financial profit of $1.3 Billion Cdn for 2004: earnings rose 24%. CN shares (TSX: CNR) gained $.57 cent closing at $75.85 Cdn on Tuesday March 22, 2005 on the Toronto Stock Exchange.
E. Hunter Harrison, President and CEO beginning January 2003, compensation for 2004:
* Earnings $16 million US
* Bonus $3.5 million US
* Salary $1.25 million US
* Other compensation $1.2 million US
* Granted shares valued at $10.75 million US when they were issued in 2004
* Unexercised options at end of 2004: $56 million US
“Canada's largest railroad system, having approximately 17,500 route miles of track, spans Canada and mid-America, from the Atlantic and Pacific oceans to the Gulf of Mexico, and serves the ports of Vancouver, Prince Rupert (British Columbia), Montreal, Halifax, New Orleans, and Mobile (Alabama), and the key cities of Toronto, Buffalo, Chicago, Detroit, Memphis, St. Louis, and Jackson (Mississippi), with connections to all points in North America. CN moves a diversified set of commodities and goods including petroleum and chemicals, metals and minerals, forest products, coal, grains and fertilizers, and automobiles as well as intermodal shipments.” (CN)
There are a number of ways to look at remedies.
Classically, given the often less than fair market value paid for lands purportedly lawfully taken, damages are calculated assessing, inter alia, the present value of the difference between that paid and fair market value at the time, including loss of use of the money, adverse impacts of taking to use and enjoyment of remaining lands,
In the Canadian specific claims approach, bands must surrender the lands and issue release, thereby validate the unlawful taking, receive compensation which includes assistance with negotiation expenses to resolve the claim, try to purchase the subject lands, then try to get the federal government to set those lands aside as reserve when the policy to do so has grown cold. They are unable to be put in the position that they would have been in but for the unlawful taking as this also precludes them “ ‘from rekindling embers of sovereignty that long ago grew cold.’ ” (Switlo, “Fanning the embers: Indigenous sovereignty”
There is the cost, actual and in the market sense, that presents another view to CN now that it is no longer a Crown corporation but rather a public company. There is the matter of confident in the company, impact on reputation, asset and share values, and ability to raise capital and renew debt arrangements so as to engage in growth caused by the publication of void titles and cost of dealing with all that through years of complex litigation, not to mentioned the human resources costs.
Restitutionary remedies have long been granted for proprietary torts, such as conversion, and trespass. The tort of trespass is committed whenever there is interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession. The tort of conversion is the wrongful withholding of property. Claims based on waiver of tort seek restitution of benefits received by a defendant as a consequence of tortuous conduct, rather than damages to compensate the plaintiffs for a loss. This involves an accounting of profits on the basis that CN has
“unjustly enriched itself by doing a wrong to plaintiff in such manner and in such circumstances that in equity and good conscience defendant should not be permitted to retain that by which it has been enriched.”
(Maddaugh and McCamus on the Law of Restitution (2nd edition, 2004))
“When the plaintiff waived the tort and brought assumpsit, he did not thereby elect to be treated from that time forward on the basis that no tort had been committed; indeed, if it were to be understood that no tort had been committed, how could an action in assumpsit lie? It lies only because the acquisition of the defendant is wrongful and there is thus an obligation to make restitution ... The substance of the matter is that on certain facts he is claiming redress either in the form of compensation, ie damages as for a tort, or in the form of restitution of money to which he is entitled, but which the defendant has wrongfully received. The same set of facts entitles the plaintiff to claim either form of redress. At some stage of the proceedings the plaintiff must elect which remedy he will have.”
(United Australia Ltd v. Barclays Bank Ltd.,  AC 1, 18-19 (Viscount Simon LC).
In Squamish Indian Band v. Canadian Pacific Ltd., Squamish Indian Band v. Canada (A.G.), 2003 BCCA 283, the BC Court of Appeal affirmed that when reserve lands taken for railway purposes are no longer needed for those purposes, the land is restored to the use and benefit of the band as a reserve.
“In written reasons delivered 27 August 2002, we dismissed all of the appeals before us in these actions. Leaving aside the multiplicity of proceedings which led to eight appeals in four actions, that decision can be summarized as follows:
1. CPR’s appeal against the decision of the trial judge that the disputed lands reverted to Canada on ceasing to be used for railway purposes was dismissed.
2. Canada’s appeal against the trial decision that the disputed lands, upon reverting to Canada, would be held by Canada for the use and benefit of one or more of the three Indian Bands, was dismissed.
… As explained there, the trial judge found, based on an interpretation of the Indian Act as it existed from time to time, that the reserve status of the lands was suspended upon the taking by the railway but revived upon the lands reverting to Canada. She therefore gave effect to what has been described as the ‘Statutory Scheme Issue’.
To cover the possibility that she might be found to have erred in that decision, she also found in favour of the Squamish Band on what has been called the “Resulting Trust Issue”. In concluding my reasons for the Court, I held in effect that it was unnecessary to reach a conclusion on the question whether the trial judge was right to find against Canada on the Statutory Scheme Issue because, on the Resulting Trust Issue, she had clearly reached the right decision for the right reasons.” [Emphasis added]
Osoyoos Indian Band v. Oliver (Town),  S.C.J. No. 82,  3 S.C.R. 746, 2001 SCC 85 involves a 1957 section 35 Indian Act taking of a strip of land for a canal for public purposes. The Supreme Court of Canada found the Crown had the right to use the lands for public purposes, but also had a fiduciary duty to grant only the minimum interest required to meet the public purpose. The canal was regarded as having been granted through statutory easement to the province, thus the canal land was still in reserve for taxation purposes.
“52 In my view, the fiduciary duty of the Crown is not restricted to instances of surrender. Section 35 clearly permits the Governor in Council to allow the use of reserve land for public purposes. However, once it has been determined that an expropriation of Indian lands is in the public interest, a fiduciary duty arises on the part of the Crown to expropriate or grant only the minimum interest required in order to fulfill that public purpose, thus ensuring a minimal impairment of the use and enjoyment of Indian lands by the band. This is consistent with the provisions of s. 35 which give the Governor in Council the absolute discretion to prescribe the terms to which the expropriation or transfer is to be subject. In this way, instead of having the public interest trump the Indian interests, the approach I advocate attempts to reconcile the two interests involved.
53 This two-step process minimizes any inconsistency between the Crown's public duty to expropriate lands and its fiduciary duty to Indians whose lands are affected by the expropriation. In the first stage, the Crown acts in the public interest in determining that an expropriation involving Indian lands is required in order to fulfill some public purpose. At this stage, no fiduciary duty exists. However, once the general decision to expropriate has been made, the fiduciary obligations of the Crown arise, requiring the Crown to expropriate an interest that will fulfill the public purpose while preserving the Indian interest in the land to the greatest extent practicable.
54 The duty to impair minimally Indian interests in reserve land not only serves to balance the public interest and the Indian interest, it is also consistent with the policy behind the rule of general inalienability in the Indian Act which is to prevent the erosion of the native land base: Opetchesaht Indian Band v. Canada,  2 S.C.R. 119, at para. 52 [see below]. The contention of the Attorney General that the duty of the Crown to the Band is restricted to appropriate compensation cannot be maintained in light of the special features of reserve land discussed above, in particular, the facts that the aboriginal interest in land has a unique cultural component, and that reserve lands cannot be unilaterally added to or replaced.
59 In seeking to expropriate reserve land under s. 35(1) of the Indian Act, the Province was only able to take or use land that it was empowered to take under an Act of the provincial legislature. Section 35(1) reads:
‘35. (1) Where by an Act of . . . a provincial legislature Her Majesty in right of a province . . . is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council . . . be exercised in relation to lands in a reserve or any interest therein.’
The words ‘the power’ clearly refer to that power contained in the Act of the provincial legislature referred to in the opening lines of s. 35(1). Thus, the Province could only exercise ‘the power’ given to it by the relevant Act of the legislature.
61 Thus, under s. 21 of the Water Act, the Minister of Agriculture was only empowered to expropriate the ‘estate or interest in or easement over land’ that was ‘reasonably required’ for the purposes of the canal, not more. The Province could not do an end run around the limitations on its powers inherent in the Water Act and expropriate a greater interest than was reasonably required for the canal by proceeding under s. 35(1) of the Indian Act.
62 In the same way, although s. 35(3) permitted the Governor in Council to short-cut the formal expropriation process, neither could the Governor in Council do an end run around the limitations on provincial powers of expropriation and grant an interest greater than the one the Province was authorized to take under its own legislation. Section 35(3) provides:
‘(3) Whenever the Governor in Council has consented to the exercise by a province … of the powers referred to in subsection (1), the Governor in Council may, in lieu of the province … taking or using the lands without the consent of the owner, authorize a transfer or grant of such lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council.’
63 By reference to ‘the powers referred to in subsection (1)’, s. 35(3) authorizes the Governor in Council to grant or transfer only ‘such lands’ as could have been taken by the Province under the relevant statutory authority, in this case, the Water Act. In other words, the Governor in Council could only grant the ‘estate or interest in or easement over land’ that was ‘reasonably required’ for the canal. This interpretation of s. 35 is not only consistent with its plain and ordinary meaning, but it is also supported by the principle of interpretation which favours a narrow reading of statutes which limit Indian rights (see para. 67 below).
64 In the result, in the circumstances of this case, because the source of the power to expropriate was the Water Act, the discretion to grant ‘land’ pursuant to s. 35(3) was limited to the land or interest in land ‘reasonably required’ for the canal.
This raises the question of what type of interest is reasonably required for the canal. The evidence before the Court is insufficient to provide a clear answer. The respondents argue that since the canal is a permanent structure, they therefore must have the exclusive right to use and occupy the land. However, while the canal seems to be a permanent structure on the land, this fact should not be overstated. There was no evidence to indicate what kind of structure the canal is. Stripped to its essence, it is a ditch lined with concrete. Furthermore, it may be inferred that the fee simple to the land was not necessary to construct the canal since no transfer of title was made at the time of its construction. As well, since the canal was already built when the transfer was made, the interest in question is that which is reasonably required to operate and maintain the canal only. Moreover, it is obvious that the fee simple is not necessary to operate and maintain the canal since those activities are currently the responsibility of the Town of Oliver, which appears to have some kind of leasehold interest in the land. A canal is similar in nature to a railway in that both are permanent structures on the land involving operation and maintenance activities, and this Court has found that a grant of a statutory easement can be sufficient for the purposes of building and maintaining a railway (Canadian Pacific Ltd. v. Paul,  2 S.C.R. 654, at p. 671). As noted above, as a general matter the Court should be reluctant to take away interests in land in the absence of conclusive evidence.”
BC Tel v. Seabird Island Indian Band (Assessor of), 2002 CarsellNat 1697, 2002 FCA 288,  F.C.J. No. 1032 (Fed. C.A.) followed the Osoyoos Indian Band v. Oliver (Town) case. The Crown was bound to impair the Indian interest in the land as little as possible, the Court held that the Order in Council should be interpreted to leave some Indian interest in the land, so the land was “in the reserve” and the taxing by-law assessing Telus for stringing aerial fibre optic cable along the road corridor properly applied.
For example, section 134 of The Railway Act, S.C. 1903, c. 58 only stipulates that
“No company shall take possession of, use or occupy any lands vested in the Crown, without the consent of the Governor in Council; but with such consent, any such company may, upon such terms as the Governor in Council prescribes, take and appropriate, for the use of its railway and works, but not alienate, so much of the lands of the Crown lying on the route of the railway as have not been granted or sold, and as is necessary for such railway …” [Emphasis added]
“ ‘Railway work’ includes not only road and utility crossings of railways, but also railway lines and their supporting structures, any system of switches or signals that facilitates railway operations, or any other structure along, across or beside a line of railway that also facilitates railway operations. Typically, such railway works include warning systems - such as bells, lights and gates - at road crossings of railways, or structures such as fences along railway rights-of-way”
(Canadian Transport Agency)
Railway Safety Act, R.S., 1985, c. 32 (4th Supp.):
“ ‘railway work’ means a line work or any part thereof, a crossing work or any part thereof, or any combination of the foregoing;”
“ ‘line work’ means
(a) a line of railway, including any structure supporting or protecting that line of railway or providing for drainage thereof,
(b) a system of switches, signals or other like devices that facilitates railway operations, or
(c) any other structure built across, beside, under or over a line of railway, that facilitates railway operations,
but does not include a crossing work;”
“ ‘crossing work’ means a road crossing or a utility crossing;”
All other purported lawful takings for other purposes, for example, resources to construct the railway or lands held in speculation or in anticipation of future expansion including by double-tracking, are unlawful and exceed statutory authority and are therefore void.
Matsqui Indian Band v. Canadian Pacific Ltd. 176 D.L.R. (4th) 35,  1 C.N.L.R. 21:
Even though CP received letters patent purporting to convey fee simply title, Robertson J.A. and Desjardins, J.A. said the Consolidated Railway Act stated that land would be given to railways on the condition that the land would not be alienated. Such a grant was short of fee simple title. The issue proper of band taxation of the line through the reserves did not make it to the Supreme Court of Canada because CP came to an agreement with the 5 bands involved (Matsqui Indian Band, Little Shuswap Indian Band, Seabird Island Indian Band, Boothroyd Indian Band, and Cook's Ferry Indian Band). It remains to be decided whether the Crown had the authority to convey title in fee simple, notwithstanding the provisions of the Indian Act and the Railway Act.
Canadian Pacific Ltd. v. Matsqui Indian Band (T.D.)  3 F.C. 373 offers an example “authorized taking”:
“An authorized taking is the exercise of federal expropriation power over reserve land, as permitted by the Indian Act. An authorized taking requires the consent of the Governor in Council and the taking provision may be used only to authorize grants of interest required for the purposes of an entity having its own powers of compulsory taking. The authorized takings were made pursuant to section 48 (now section 35) of the Indian Act, R.S.C. 1927, c. 98. … The railway's power of expropriation is contained in section 162 of The Railway Act, R.S.C. 1927, c. 170. This section outlines the steps that need to be taken before an expropriation is effective, e.g. the railway must survey the route along which the line will run and draw up plans showing the parcels of land over which the tracks will cross. The plan, along with a vertical profile of the tracks, must be reviewed by the Railway Commission Board now known as the Canadian Transportation Agency.”
Per Robertson J.A. in the BC Court of Appeal in Canadian Pacific Ltd. v. Matsqui Indian Band no doubt encouraged the resulting settlement between the parties on the taxation issue before the court, beginning at para. 85:
“ There are 15 rights-of-way in issue and, therefore, 15 conveyances which need to be examined to determine whether fee simple title passed to Canadian Pacific or a determinable fee as found by the Motions Judge. [The conveyancing documents received by CP and presented to the Court purport to convey fee simple title to each right-of-way.]
[131 ]In summary, at all relevant times, Canadian Pacific could not have validly obtained fee simple title to the reserve lands in question under The Railway Act because of the prohibition against alienation of lands acquired from the Crown for railway purposes. At best, Canadian Pacific obtained statutory easements to the rights-of-way or licences to use or occupy reserve lands required for railway purposes. For this reason, it is necessary to determine whether the provisions of the CPR Act of 1881 override those outlined in The Railway Act.
 In conclusion, I am of the view that article 22 of the contract does not displace or override the restraint on alienation imposed on Crown lands acquired by railway companies. Accordingly, Canadian Pacific could not legally obtain fee simple title to the right-of-ways. This determination means that the right-of-ways are ‘in the reserve’ and that the notices of assessment are valid. It also follows that if article 22 of the contract is insufficient to override subsection 7(3) of The Consolidated Railway Act, 1879, because of its failure to expressly do so, then other provisions of the CPR Act and the contract which purport to transfer absolute title to the railway and which impose an obligation on the government to extinguish Indian title also lack the specificity required to oust the application of subsection 7(3). Nonetheless, I feel compelled to deal with the alternative issue as to whether the provisions of the CPR Act and contract override those of the Indian Act. As discussed earlier, under the latter Act fee simple title can be obtained only by way of a surrender as required by section 37 or by a taking under section 35. …
 This analysis is further supported by the seminal decision of Justice La Forest, then of the New Brunswick Court of Appeal, in Re Estabrooks Pontiac Buick Ltd. in which he held that a restrictive interpretation of legislation which attempts to diminish the proprietary rights of third parties is preferable, absent specific statutory directions to the contrary. Justice La Forest's comments regarding statutory interpretation are of some significance in this regard:
‘There is no doubt that the duty of the courts is to give effect to the intention of the Legislature as expressed in the words of the statute. And however reprehensible the result may appear, it is our duty if the words are clear to give them effect. This follows from the constitutional doctrine of the supremacy of the Legislature when acting within its legislative powers. The fact that the words as interpreted would give an unreasonable result, however, is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation. For it should not be readily assumed that the Legislature intends an unreasonable result or to perpetrate an injustice or absurdity.’
 The general rule applicable when interpreting statutes relating to Indians is that ambiguities and "doubtful expressions" should be resolved in favour of the Indians. Indeed, as Justice La Forest stated in Mitchell v. Peguis Indian Band:
‘… it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. Thus if legislation bears on treaty promises, the courts will always strain against adopting an interpretation that has the effect of negating commitments undertaken by the Crown …’
Similarly, in the case at bar, this Court should balk at adopting an interpretation which is tantamount to an implied extinguishment of the Indians' interest in reserve lands.
 This approach is further supported by the concurring reasons of Chief Justice Dickson, in which he applies the general rule to third parties, stating:
‘It is Canadian society at large which bears the historical burden of the current situation of native peoples and, as a result, the liberal interpretive approach applies to any statute relating to Indians, even if the relationship thereby affected is a private one. Underlying Nowegijick is an appreciation of societal responsibility and a concern with remedying disadvantage, if only in the somewhat marginal context of treaty and statutory interpretation.’
His reasons were uncontradicted on this point.
 In conclusion, Canadian Pacific has never needed any more than a statutory easement to effectively operate its railway lines across reserve lands and a statutory licence with respect to adjacent lands used in railway operations. In the absence of an express extinguishment, Canadian Pacific cannot legitimately claim more than is necessary to effectively operate its railway. The obligation imposed on the Crown to convey to Canadian Pacific absolute title to the railway, when properly construed, does not derogate from these two propositions.
 In closing, I would like to draw attention to the fact that the numbered treaties expressly provided that the government would not sell, lease or otherwise dispose of reserve lands without the consent of the Indians. Treaty 3, which was signed in 1873, states:
‘… the aforesaid reserves of lands, or any interest or right therein or appurtenant thereto, may be sold, leased or otherwise disposed of by the said Government for the use and benefit of the said Indians, with the consent of the Indians entitled thereto first had and obtained. …’
 Treaties 4 (1875), 5 (1875), 6 (1876) and 7 (1877) contain similar provisions and were entered into between 1873 and 1877. With respect to Treaty 7, signed in 1877, confusion arose over the exact location of the original Blackfoot reserve and there was concern that Canadian Pacific's railway was traversing reserve lands. On June 27, 1883, and after the CPR Act of 1881 had been brought into force, a new treaty was signed whereby the ‘Indian tribe’ agreed to give up its strip of land in return for a new reserve bordering on the railway right-of-way. This particular historical episode supports the view that the CPR Act was never intended to extinguish Indian title to reserve lands without the consent of the Indians. Quaere: Why is it presumed that extinguishment of Indian title would be achieved by the mere adoption of the CPR Act, as opposed to the treaty process? Why bother negotiating treaties only to pass legislation which overrides fundamental concessions granted to the Indians? These are questions I need not address. But in the event that this case proceeds to another judicial forum, those questions might warrant serious consideration.
… It is sufficient to note that, to the extent that the tax exemption for the Indian interest in reserve lands flows from notions of Aboriginal sovereignty, such exemption should be protected in the absence of statutory directions to the contrary.” [Emphasis added]
It should be noted that the lawyers in the above case conceded sovereignty, (Gary S. Snarch and Fiona C. M. Anderson (law firm Snarch & Allen), Arthur M. Grant (law firm Grant, Kovacs, Norell) Leslie J. Pinder and Clarine Ostrove (law firm [Louise] Mandell Pinder) Arthur Pape (law firm Pape & Salter)), Robertson J.A. in the BC Court of Appeal:
“ Both the appellants and respondents discouraged this Court from delving into the issue of whether the underlying title to reserve lands lies with the Crown in right of Canada or the province of British Columbia. The parties agree that the underlying title is with the former. Therefore, if the CPR Act, The Railway Act and the Indian Act interact to authorize the conveyance of fee simple title to the rights-of-way, those conveyances are valid against the Crown in right of the province of British Columbia. While I am willing to accept that the reversionary interest in reserve lands in British Columbia lies with the federal Crown for the purposes of this appeal, I doubt that such a concession could have been made between 1871 and 1938.”
However my work focuses on Indigenous sovereignty, Indigenous peoples, Indigenous nations. I do not concede that mere bare assertion of Her Majesty’s sovereignty together with administration over time is constitutionally solid, and explain this variously in articles and publications that can be found on my website: www.switlo.com, all of which have very serious implications.
Canadian Pacific Ltd. v. Matsqui Indian Band (C.A.),  2 F.C. 641 discusses why the issue did not arise therein:
“… it may or may not be that the federal Crown failed in its obligations toward the Indian bands, or that the Crown exceeded or did not exceed its statutory authority and granted to the railways an interest in land that the applicants ought not to have received. I say this without ruling on this issue in that the Crown was not a party to the present proceedings. The facts before me satisfy me that the applicants are bona fide purchasers of land for good value without notice of fraud or deceit. Indeed, the respondents never argued that they had been deceived by the Crown or the applicants. As a matter of fact, I am satisfied that the evidence before me suggests that the Indians were apprised of all negotiations with the railways. The money received by the Crown went toward benefiting the Indian bands as stated in the opening remarks of the letters patent. Accordingly, I do not have to decide these issues and they do not prevent me from reaching my conclusion.
I am satisfied that there is a common theme that runs through the letters patent, the orders in council and the applicable legislation; and, that theme is the applicants were granted the lands specifically for railway purposes. Therefore, I am satisfied that the interest in the lands granted to the railways was a determinable fee. Consequently, title vests with the applicants and the lands do not fall within the Indian bands' taxing authority.”
In Opetchesaht Indian Band v. Canada,  2 S.C.R. 119 the Court held that the 1959 permit granted to Hydro under s. 28(2) of the Indian Act is valid and stated at that the interests conveyed by the permit are analogous to an easement over the band's reserve lands, subject to termination when there is no longer a requirement for the power transmission right-of-way, at para. 28:
“28. Nor can the permit be characterized as perpetual because its duration is purely under the control of the respondent Hydro. In Canada (Attorney General) v. Canadian Pacific Ltd.,  1 C.N.L.R. 1 (B.C.S.C.), aff'd  B.C.J. No. 407 (C.A.), it was held that a grant of an interest in reserve land for so long as required for railway purposes was not an interest determinable at the sole will of the railroad. The Court of Appeal found that the reserve land was no longer required for railway purposes, and that therefore, the transfer of the land from CP to its subsidiary, Marathon Realty Corporation, was void.”
Kruger v. The Queen,  1 F.C. 3 (C.A.), at page 42, quoting from Point v. Dibblee Construction Co. Ltd., et al.,  O.R. 142 (H.C.), at page 152:
The provisions of sec. 48 [authorized taking] . . . refer, obviously, to the case where land is taken away or withdrawn from the reserve and the title to the land so taken passes from the Crown to the company, municipal or local authority concerned. …
Secondly, the respondents submit that the case at bar is on all fours with Attorney General of Canada v. Canadian Pacific Limited and Marathon Realty Company Limited,  1 C.N.L.R. 1 (B.C.S.C.), affirmed by B.C.C.A. (May 14, 1986, CA003686, unreported) [sub nom. Canada (Attorney General) v. Canadian Pacific Ltd.,  B.C.J. No. 407 (C.A.) (QL)].
In Marathon, the impugned lands comprised a strip of the Penticton Indian Reserve that had been appropriated by Canadian Pacific Limited for railway purposes pursuant to section 48 of the Indian Act of 1927. CP had ceased operating on the land and conveyed it to Marathon Realty. The British Columbia Court of Appeal upheld the lower Court's decision ordering CP to restore4 the lands to the Crown.
Marathon is easily distinguishable from the applications before me. In the applications before me, the land is still used for railway purposes. It ceased being so used in Marathon.
At the trial level of Marathon, supra, Meredith J. held, at page 4:
“The restraint against alienation is clear. The conveyance to Marathon is thus, as I say, illegal.
And I think, by necessary implication, that as the lands are no longer necessary for the use of the railway, and thus are not used for the purposes of the railway, the lands must be restored to the Crown.”
A.G. Can v. C.P. (1985),  1 C.N.L.R. 1,  B.C.W.L.D. 3036 (BCSC):
The Court ordered return of railway lands originally expropriated from the Penticton Band once CP no longer needed the land for railway purposes, applying the wording of the Indian Act and The Railways Act.
eg. the Vancouver Arbutus corridor
This blog is focused on BC Rail, not on First Nations.
This particular section is focused on BC Rail lands ... and that BC Rail trackage runs through (I think, from memory) 17 Indian Reserves. Did you know that? And that NOBODY is entitled to sell this off without consultation.
And in any nation which governs itself by the rule of law, appropriation, use, re-sale, and abuse of lands owned by a 3rd party cannot be legal, therefore cannot be allowed.
That's allegedly what has happened here between BC Rail and the Bands representing the 17Indian Reserves.
If it's proven that the Campbell government made an illegal sale of the BCRail operating route, the whole deal might be declared illegal. And Canada's 3rd largest railway might be returned to public ownership.
You call that "nonsense"?
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