The Songhees Nation is suing the federal government and Island Corridor Foundation in hopes of getting an order requiring contamination removal and restoration of lands used for a century of rail service.
The lawsuit, filed Nov. 8 in the Supreme Court of B.C. in Victoria, calls on the court to declare that the right-of-way for rail service through Songhees lands has expired and the property has reverted to reserve land “held by Canada for the use and benefit of the Songhees Nation.”
E&N passenger rail service stopped in 2011 due to the poor condition of the rails, with all service ending in 2014, the claim says.
Once the E&N right-of-way was no longer being used for rail in 2014, the Crown should have immediately carried out an environment cleanup, the nation’s 22-page claim says.
The lawsuit has its roots in the late 1800s, when rights-of-way on Vancouver Island were approved by the federal government to establish the E&N railway, owned and operated by Canadian Pacific Railway.
Today, the railway corridor is owned by the Island Corridor Foundation, which is made up of 14 First Nations and five regional districts on Vancouver Island. While some have called for rail service to be restored, others say that will never happen and the corridor would be better used as a walking and biking trail.
The Songhees claim says that while the rail service was running, the corridor was contaminated by railway ties treated with chemicals as well by as by coal, ash and cinder containing arsenic and lead.
Liquids such as cleaning solvents and gasoline also seeped into the ground, says the claim, which points to herbicides, metals, and transformers as additional sources of contamination.
The E&N Railway Company began building the rail line across the Songhees Point Reserve toward Victoria Harbour about 1886, with the Johnson Street bridge constructed to bring the railway across the harbour into the city of Victoria.
The claim says construction of the E&N Railway across the Songhees Point reserve was done “unilaterally and without the permission of the Songhees Nation or the federal government.”
In 1891, the railway company formally applied for a right-of-way, and the following year, the federal government approved expropriation of 6.91 acres from the Songhees Point reserve for the right-of-way and another 15 acres for terminal buildings, for a total of 21.91 acres, the claim says.
In about 1910, Songhees people were moved off Songhees Point on the Victoria Harbour waterfront to their current location on Admirals Road in Esquimalt.
The lawsuit is the second filed recently in the Supreme Court of B.C. over contamination and damage to the lands on the E&N rail corridor.
The Snaw-naw-as (Nanoose) First Nation filed a suit on Oct. 3 to force the cleanup of the former right-of-way through its reserve, naming the Attorney General of Canada and the Island Corridor Foundation.
In March of last year, the province and federal government announced that the right-of-way would be returned to the Snaw-naw-as nation, which had fought in court to get the land back.
Snaw-naw-as elected Chief Brent Edwards has said that the the right of-way was left in a contaminated and dilapidated state. The nation hired a contractor that has been working to clean it up.
The Attorney General and the Corridor Foundation have not yet filed responses to either lawsuit.
Thomas Bevan, chief executive of the Island Corridor Foundation, said he can’t talk about the suits but “we’re working now with legal counsel on decisions for next steps and evaluating the situation.”
Last year, the province announced $18 million for island Corridor Foundation members to start looking at the future of the corridor.
Bevan said the foundation is working with its members to see “if this corridor can continue to serve a collective interest. Or if that’s not possible, then what is the alternative path.”
