July 27, 2015 - 6:30 PM
MEMBER CLAIMED ORAL TRADITION GRANTING LANDS
PENTICTON - A Penticton Indian Band member has lost another round in court against his own band as he tries to reclaim land he says his grandfather was verbally granted in the early 1900s.
The dispute dates back to 2008 when Lavern Jack took up residence on Lots 197 and 198 of the Penticton Indian Band, a piece of property located on the east side of Highway 97, surrounding the weigh scales at the junction of Highway 3A. He erected a tent and also had a trailer on the property, located just north of the weigh scales, and members of the family posted signs laying claim to the lots.The Penticton Indian Band began legal action against Jack soon after.
Jack argued his grandfather was given approval by the band to use the lands in 1911 or 1912 during the court case, which began in May 2012. Lengthy delays, a mistrial and subsequent summary trial resulted in the judge ruling in favour of the Penticton Indian Band, saying there was no evidence Jack’s family had been granted a Certificate of Possession for the disputed property.
Jack’s appeal over the decision was also drawn out, resulting in the appeal becoming inactive in on November 4, 2014. HIs application to remove the appeal from the inactive list was also late, taking place the day before the appeal would have been dismissed as abandoned.
In his reinstatement application, Jack submitted he was self represented and did not understand the steps required after filing his application to appeal.
Jack’s appeal was based on the fact his family follows an oral tradition. That was also the reason behind his grandfather never having obtained a Certificate of Possession. Jack said the family relied on statements telling the grandfather the land was his, referring to a document of the band prior to 1953 that demonstrates an understanding that his grandfather had been allocated the subject lands. Jack argued based on those documents and his tradition, the judge erred in failing to rule in his favour.
The Penticton Indian Band argued against removing the appeal from the inactive list, telling court it would suffer “immediate prejudice” if the appeal were allowed to proceed. The band said significant funds, time and resources had been put into economic development “in the nature of construction of residential and commercial units, and the construction of a bridge to provide access to reserve lands,” in order to develop reserve lands.
In order to finance these developments, the band has been in negotiations with the provincial government to transfer a portion of the lots claimed by Jack to allow for highway improvement at the junction of Highways 3A and 97. The band said the disputed lots are also included in discussions for a lease it hopes to give for commercial development near the intersection.
In her ruling, Justice Mary Saunders noted Jack’s lengthy delay in moving forward on the appeal and also noted the lack of evidence, including a Sept. 12, 1953 letter advising Jack’s grandfather neither the band nor the Department of Indian Affairs recognized him as owner of the land.
The judge did note Jack could take the matter before a Federal court.
The judge also noted the band could potentially suffer economically as a result of reinstating the appeal.
“The appeal itself is weak and pursuit of the appeal will only consume time and resources,” Saunders said. “In these circumstance, I find it is not in the interests of justice that the appeal be reinstated. Mr. Jack’s application to reinstate his appeal is dismissed.”
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News from © InfoTel News Ltd, 2015