Judge blocks OKIBs attempt to evict elder saying it would cause 'irreparable harm' | iNFOnews | Thompson-Okanagan's News Source

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

November 20, 2020 - 7:00 AM

A B.C. Supreme Court Judge has put a halt on the Okanagan Indian Band's efforts to evict a 70-year-old former band member living on land left to her in her aunt's will.

In a recently published decision, Oct. 14, Supreme Court Justice Jeanne Watchuk granted a temporary one-year hiatus on the band's legal action against former band member Marilyn Johnston, ruling that continuing through the courts would cause "irreparable harm" to the senior.

The case revolves around Johnston's efforts to transfer her membership back to the Okanagan Indian Band, further complicated after she was left the land where she lives on the reserve in her aunt's will. The Indian Act states a person can't inherit land on a reserve if they're not a member.

Because Johnston isn't an Okanagan Indian Band member, the band took her to court saying she is trespassing and owes them rent, but Johnston argued if the Band had processed her membership application in a timely manner, she would have inherited the land and the entire situation would have been avoided.

Johnston’s argument seemed to sit well with the judge.

"Had the band completed the process promptly or at least in 2012, the defendant would have been a member of the band when her aunt died," Justice Watchuk said. "The lack of certainty of the future of the (land) lies at the feet of the band as a result of their delays."

In granting the 12-month adjournment, the Supreme Court Justice said it was "important to note" that Johnston first applied for band membership in 2002 and had made many attempts to communicate with the band before it refused her application 17 years later.

According to the decision, Johnston was an Okanagan Indian Band member and left to live in Fort St. James in 1976. In 1988 she transferred her membership to the Nak’azdli Whut’en Indian Band to enhance trust within the community where she worked at the victim services program.

The decision says it was always Johnston's plan to return to the Okanagan Indian Band as she had been raised on the reserve and her father and siblings were all band members.

In 2002, Johnston applied to transfer her membership back to the Okanagan Indian Band. The band wrote back to her saying it was in the process of adopting a new band membership transfer policy and that it was currently dealing with 20 other applications.

The court documents give a detailed description of letters that went back and forth between the Band and Johnston, including a $50 transfer fee cheque that she sent them.

However, the Okanagan Indian Band failed to do anything with Johnston's application.

In 2009 Johnston moved back to the Okanagan Indian band reserve to live with her aunt. She wrote again requesting the band process her membership application.

Two years later the band wrote back asking her to reapply. There was no explanation as to why the band hadn't processed the paperwork she'd sent them nine years earlier.

According to the decision, internal documents disclosed during the court proceeding show the Okanagan Indian Band confirmed in January 2012 that Johnston had reapplied, "fulfilled all the requirements," and had "been accepted into the membership" of the Okanagan Indian Band. It appears this information was never shared with Johnston.

However, for reasons not explained, the Okanagan Indian Band didn't process the transfer and later in 2012 Johnston wrote to Aboriginal Affairs and Northern Development Canada for assistance.

One year later, Johnston's aunt died leaving her four lots of land on the reserve.

Because a person can only inherit reserve land if they are a member, the Okanagan Indian Band started procedures to sell the land. By 2015 it had sold two of the four parcels, giving the money to Johnston as is their legal requirement.

READ MORE: MEMBERS ONLY: Widow evicted from Westbank First Nation home after husband dies

The decision says Johnston lives in a two-bedroom home and her daughter and grandson live in a trailer on a 60-acre property. The Okanagan Indian Band has attempted to survey the land in preparation for its sale.

Johnston continued to push for her band membership application to be processed and in 2018 involved Indigenous Services Canada who told the Okanagan Indian Band to postpone the sale of Johnston’s land until her application was dealt with.

In January 2019, 17 years after she first applied — the Okanagan Indian Band refused her application for membership saying Johnston had “displayed aggressive and threatening behaviour to the OKIB staff” and that “she would not make a positive contribution to the community.”

The Okanagan Indian Band alleges Johnston threatened surveyors with a gun if they did not leave her property and was aggressive and rude in the band office.

The senior denies both the alleged incidents and says she doesn’t own a gun.

Johnston then appealed the decision with Indigenous Services Canada and is currently waiting for a response.

The court's ruling gives Johnston until October 2021 to rectify her membership issue. If the issue has not been resolved by then Johnston could apply for another adjournment.

READ MORE: Woman evicted by Westbank First Nation taking eviction story to national stage

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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