Is there any difference between whether the right of way is actually required for railway purposes and whether it is determinable at the sole will of the Indian Community Fund?

British Columbia, Canada


The following excerpt is from Snaw-Naw-As First Nation v. Canada (Attorney General), 2021 BCCA 333 (CanLII):

Whether the right of way continues to be “actually required for railway purposes” is a justiciable issue and is not determinable “at the sole will” of ICF. While ICF’s intentions are relevant, the question is properly determined by an assessment of objective evidence: see Opetchesaht Indian Band v. Canada, 1997 CanLII 344 (SCC), [1997] 2 S.C.R. 119 at paras. 28–29.

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