(BEN BULMER / iNFOnews.ca)

A former Okanagan Indian Band elder has spent almost $90,000 on lawyers in an effort to get her band membership back after 20 years of inaction and stonewalling by the Band's leadership.

Recently, at the Federal Court of Canada, Marilyn Johnston did score a minor victory against the Band, but Federal Court Justice Cecily Strickland said she lacked the power to order the Band to reinstate her membership.

The court's decision now leaves Johnston in the hands of the bureaucrats at the Okanagan Indian Band and the Band council who after almost 20 years have failed to approve her paperwork and now appear to have a personal grudge against her.

Unfortunately, even after spending $90,000 on lawyers, it appears Canada's courts are largely powerless to resolve the elder's problems.

The state of limbo over her membership is preventing her from inheriting land where she lives with her daughter and granddaughter.

Without Band membership, Johnston is prevented from inheriting the land, as per the Indian Act.

This gives the Okanagan Indian Band the legal authority to kick Johnston off her land and sell it to the highest bidder.

So far, the Okanagan Indian Band has sold two of the four plots the elder inherited.

One of the plots was later bought by Cecil Louis, a Band councillor’s relative.

Johnston has accused the Band of bias regarding the sale. The story dates back almost 50 years, the details of which are laid out in an Aug. 29 Federal Court of Canada decision.

The decision says Johnston was a member of the Okanagan Indian Band through her father.

Then in 1976, Johnston left the Band to live in Fort St. James.

In 1988, she transferred her membership to the Nak’azdli Whut’en Indian Band to enhance trust within the community where she worked in social work.

At the time, the Okanagan Indian Band had said she could transfer her membership back at any time in the future.

Her first request to transfer her band membership back to Okanagan Indian Band came in 2002.

At the time she was told the Band was in the process of adopting a new band membership transfer policy.

The court documents say she made many attempts over the next several years to have her membership transferred back to the Okanagan Indian Band.

However, for reasons not well explained, the transfer never took place.

In 2009, she moved onto her aunt's land on the Okanagan Indian Band reserve.

The situation was then amplified in 2013 when her aunt died and left her four plots of land on the reserve, which she can't legally inherit because of the inaction.

It's unclear when the Okanagan Indian Band began proceedings to kick her off the land, but in 2020 a B.C. Supreme Court Justice put a temporary halt on its efforts to evict the then 70-year-old elder.

The Justice at the time said it would cause her "irreparable harm" if she was evicted from the land, but the sale would only be on hiatus for a year.

READ MORE: Judge blocks OKIBs attempt to evict elder saying it would cause 'irreparable harm'

Why Johnston hasn't been given her band membership back isn't clear, but an internal memo in 2012 stated Johnston "fulfilled all the requirements," and had "been accepted into the membership." It appears this information was never shared with her.

In 2019, 17 years after Johnston first applied, the Band rejected her application.

The Band said, "we do not believe she would make a positive contribution to the OKIB community."

The Band says Johnston, now approaching her seventies, displayed "threatening, aggressive or obstructive behaviour" as a reason not to give her her membership back.

The Band says Johnston threatened staff members, saying she would go and get her gun when staff and a land surveyor visited her in preparation for selling her land.

The elder denied this and says she doesn't own a gun.

She says she just asked them to get a court order if they wanted to come back on her land.

Her recent win at the Federal Court gives her more breathing room, but no certainties.

The Court ruled the Band didn't given Johnston an opportunity to defend herself against the allegations of threatening behaviour.

"In my view, (the) OKIB breached procedural fairness," the Justice said in the decision.

The Justice sent the case back to the Okanagan Indian Band so the former member can once again argue her case in getting her Band membership back.

The Justice also ordered the Band to pay Johnston $25,000 to cover some of her $87,000 legal bill.

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