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Constitution (Non-Charter) - Railways. BNSF Railway Company v. Greater Vancouver Water District
In BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal [under the Canada Transportation Act, s.41(1)], here from a CTA decision that "found the rerouting works suitable and authorized the District to construct and maintain them at the District’s cost".
Here the court considers the federal 'division-of-powers' over railways:[129] I pause here to observe that Parliament has exclusive legislative jurisdiction over federal railways: Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5. This includes exclusive legislative authority to prescribe the powers of federal railways and to regulate their construction, repair and management: Canadian Pacific Railway v. Notre Dame de Bonsecours (Parish), [1899] A.C. 367, C.R. [12] A.C. 145 (P.C.).
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[131] A province has no jurisdiction to expropriate, or require a railway to permit the construction of a road or utility line on, a railway right of way subject to federal jurisdiction: AG Alberta at 503; Campbell-Bennett v. Comstock Midwestern Ltd., 1954 CanLII 216 (SCC), [1954] S.C.R. 207, [1954] 3 D.L.R. 481 at 216; C.N.R. v. Nor-Min Supplies, 1976 CanLII 22 (SCC), [1977] 1 S.C.R. 322, 66 D.L.R. (3d) 366 at 324-325. See also Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322, 156 D.L.R. (4th) 456 at 356; Vancouver International Airport Authority v. British Columbia (Attorney General), 2011 BCCA 89 at para. 29, leave to appeal to SCC refused, 34213 (25 August 2011); Canadian Pacific Railway Company v. Kelly Panteluk Construction Ltd., 2020 SKCA 123 at para. 86; Greater Toronto Airports Authority v. Mississauga (City) (2000), 2000 CanLII 16948 (ON CA), 50 O.R. (3d) 641, 192 D.L.R. (4th) 443 (C.A.), leave to appeal to SCC refused, [2001] S.C.C.A. No. 83.
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