Among the precedent-setting court decisions in which Mandell Pinder has played a role is the BC Supreme Court’s August 19, 1985 decision in Pasco v. CNR, which resulted in an injunction to prevent Canadian National Railway from constructing a second track along the Thompson River.
The Railway and the River
At issue in Pasco was the Canadian National Railway’s proposed double-tracking of their entire line between Edmonton and Vancouver. The railway company had been tasked by the federal government with doubling their hauling capacity by the end of the 1980s under a new freight rate structure to move more cargo between the Prairies and Pacific ports. Construction east of the Rockies began in 1982 and, by the end of 1984, CNR had completed work on 350 km of the line between Edmonton and Valemont.
Between Valemont and Vancouver, the railway passes through roughly 60 Indian reserves allotted to 36 First Nations. To add a second track through the narrow Thompson and Fraser River valleys, CNR intended to dump rock into the river in many locations to provide space for the additional track. The affected communities formed the Alliance of Tribal Councils (comprised of Stó:lō, Nlaka’pamux, and Secwépemc bands) to collaborate on ways to defend their Aboriginal right to fish and to protect their reserve lands and fish habitat.
Chief Robert Pasco1 of Oregon Jack Creek gave his name to the Pasco litigation and served as one of the Alliance’s spokespeople. His community’s reserves near Ashcroft, BC fell within the 14-kilometre stretch of the Thompson River that was to serve as the beginning of the double-tracking west of the Rockies. Chief Pasco sat on the project’s environmental review panel from late-1983 with the hope of upholding his community’s rights as the project moved through the province. He extolled the goodwill of his fellow panel members, but found that the panel’s terms of reference prevented them from taking any Indigenous input into consideration:
One of the things that became very obvious, and I think this is obvious to the [Environmental Review] panel, is that the majority of the testimony that came before the panel regarding CN twin-tracking was evidence that came from the Indian people. But because of the terms of reference of the panel, the limited terms of reference, the panel could not use that testimony. There was no place for it.
Life with the Railway
The Alliance communities had a long list of historical grievances against CNR’s rights-of-way through their reserves. Most notably, construction crews working on the CNR line at Hells Gate caused a series of land slides between 1911 and 1913 that prevented spawning salmon from ascending into the Thompson and northern Fraser systems. Subsequent salmon runs were a fraction of their pre-slide numbers for decades and never fully recovered.
The rail line caused daily frustrations, too. Though CNR had rights-of-way through the reserves, they did not have rights of ingress or egress, which meant CNR employees frequently trespassed on reserves. Additionally, the continued neglect of ditches on both sides of the tracks led to flooding of many reserves’ agricultural lands, while the passing trains carried noxious weeds that damaged crops and ecosystems. To top it off, the various rights-of-way carved these already too-small reserves into almost unusable parcels. As Edna Louis of the North Thompson Band explained to a Parliamentary Committee in February 1985,
[R]eserve lands are limited lands, and we cannot afford the further destruction of them by CN[R]. We are in a situation where we have the mountains on one side of us. We have the highways. We have the railroads. We have hydro. We have all these other utilities going through our community and, as I said, CN[R] down the middle.
The Project Begins
Matters came to a head in early-December 1984 when Alliance members received the Railway’s internally-prepared environmental assessment report. Chief Pasco had understood from his work on the panel that CNR intended to start construction in 1986 but heard from someone that construction was to start south of Ashcroft on January 1, 1985. Rather than CNR contacting the chief of the community whose reserves would be directly affected by the proposed work, Chief Pasco had to phone a contact of his in order to confirm the rumour and to receive copies of the final plans.
Though the date of construction was soon pushed back to February 1985, Chief Pasco resigned from the environmental assessment panel on January 9, explaining in his resignation letter that, in spite of the professionalism and competence of the panel’s chairman and members, “it has become clear that the majority of Indian issues fall outside the mandate of the panel. These will have to be pursued through other channels.”
Chief Pasco filed a petition in the BC Supreme Court on behalf of the Alliance in the last week of January 1985 seeking an injunction against the double-tracking project. This got everyone’s attention. In a matter of days, Senator Len Marchand, an Okanagan Indian Band member, arranged a meeting between the Alliance, CNR, and the Department of Indian Affairs. During that meeting, the Railway agreed to delay work until March 1 and to form a committee with Alliance members to examine the project’s environmental impacts to fishing and cultural sites. The Alliance agreed to put their injunction application in abeyance to focus on negotiations with the Railway.
The Alliance in Ottawa
The Alliance also presented their concerns with the double-tracking project to the Standing Parliamentary Committee on Fisheries and Forestry on February 7, 1985. Chief Pasco told the Committee that no one from the affected communities or from Department of Indian Affairs had a place on the project’s steering committee. “Therefore,” Chief Pasco told the Committee, “the people with the most to lose because of this project have been excluded from the main decision-making process to-date.”
Chief Pasco also clarified that the Alliance did not want the project stopped, but would be pleased to cooperate fully with CNR and other regulatory agencies to ensure that “the best design is developed to protect the river, the salmon, and our access [to the River] and fishing sites—not just the cheapest or the most expedient designs for the CNR.” The Alliance’s desire to settle their outstanding issues with CNR required both Canada and CNR to “[a]cknowledge that our aboriginal rights are a central factor to this project and that our communities have much at stake in the way the project proceeds over the next 20 years.”
The Parliamentary Committee unanimously endorsed all of the Alliance’s recommendations–including delaying further construction for one year to allow for a full social and environmental assessment of the project–but it lacked the authority to make any binding decisions. Similarly, in late-March, a panel of the federal Environmental Assessment Review Office issued a report that said CNR’s project would have little environmental impact on fisheries provided the railway company adhered to specific safeguards. However, the panel’s manager Paul Scott told the Vancouver Sun that, “[t]here’s nothing really from CN[R]’s point of view that can force them to consider all the Indians’ concerns. There’s nothing to stop the railroad from going ahead and doing it their own way.”2
Failed Negotiations
Federal Transportation Minister Don Mazankowski appointed UBC law professor Andrew Thompson as a facilitator to work with the Alliance and CNR. These talks bore fruit in an informal agreement struck in early-April that allowed CNR to start work along an 11 km section along the Thompson where the damage caused by the original track’s construction minimized the potential damage of adding the second track.
However, by June, the Vancouver Sun described the parties as “at each other’s throats again” after the Alliance reported that CNR’s work crews had damaged spawning grounds and blocked public access to the river. A final three-day informal hearing in early-August in chambers before BC Supreme Court Chief Justice Allan McEachern failed at reaching agreement, which brought the original injunction application out of abeyance.
The Injunction Decision
Mr. Justice Macdonald heard arguments during the middle of August and rendered his judgement on August 19, 1985. His decision gave the most weight to the arguments surrounding Oregon Jack Creek’s proprietary right to their reserve lands, a right that extended beyond the surveyed boundary to the centre of the river and that was not affected by the Railway’s right-of-way that ran along the riverbank.
Justice Macdonald understood his task as one to determine whether the Alliance’s case for proprietary rights was robust enough that the double-tracking should remain on hold until the underlying Aboriginal title claim was heard. He decided that it was and so issued the injunction.
Justice Macdonald was not convinced by CNR’s arguments that delaying the project would result in a lack of rail capacity. He wrote that Oregon Jack Creek did not dispute the company’s claims that railway expansion was in the nation’s economic interest, “but they maintain that the urgency is not so pressing as to demand that the work proceed before the nature and extent of their rights is determined at trial. I accept that position.”
CNR appealed the decision, but the court dismissed their appeal on October 8, 1985.
The Aftermath
Not long after the injunction decision, the CNR proved the Alliance and Justice Macdonald correct. The company had been unnecessarily rushing its double-tracking project. About a year after the injunction took effect, CNR paused further work on double-tracking when it realised its economic projections had been too optimistic. Facing a $30-million loss for 1986 and limited growth in the short-term, the company announced in August 1986 its intention to reduce their workforce by 14,000 by 1990. While CNR continued to litigate its right to continue with the project into the 1990s, on-the-ground work in the Thompson and Fraser canyons has never resumed.
The Alliance’s victory in Pasco v. CNR extended far beyond the small portion of the Thompson River covered by the injunction. It protected reserve lands and salmon populations by stopping CNR’s ultimately unnecessary project. And it made clear to industry, the legal profession, and policy makers the importance of adequate consultation with Indigenous communities.
1 He received the honourific of “Grand Chief” in 2013.
2 Vancouver Sun, March 29, 1985, page A12.