North Okanagan landowner who tried to force his way through First Nations land denied access by judge

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Relying on century-old maps as evidence, a retired teacher failed to convince a B.C. Supreme Court Justice that he should be allowed to use a road through Splatsin Indian Band lands to access his rural North Okanagan property.

The legal action taken by Gary Roberts against the Splatsin Indian Band came after he took matters into his own hands; filling in trenches the band had dug to prevent the road from being used and using heavy equipment to remove a concrete barricade. At one point the RCMP became involved in the dispute.

Following the altercations, Roberts filed an interim injunction against the Splatsin Indian Band in an effort to prevent the band from blocking his access to the road.

In the recently published Supreme Court decision, Roberts argued the road that leads to his 166-acre property near Salmon River Road is a public road owned by the provincial Crown and not the Splatsin Indian Band.

According to the decision, the 74-year-old purchased the 166-acre property for $300,000 in 2018 and knew of the situation with the road.

In 2009 the band dug trenches in the road to prevent the previous owners from using it and negotiated access through a different road to access the property at the cost of $1,200 a year.

However, when Roberts purchased the land in 2018 he refused to recognize the arrangement calling it a "buckshee agreement" and accused the band of extortion. 

While Roberts owns the land, he lives in Armstrong, and no building exists on what the Justice described as "essentially a large hayfield."

Roberts told the court he tried to negotiate with the Band over the use of the road, but said they bullied, stalled and used intimidation tactics against him. Negotiations failed and ultimately the Band refused to open the road.

Based on plans and maps dating back to the late 1800s Roberts asserted the road was created in 1897 as part of a public highway system and it remained a public road to the present. Armed with this knowledge, he filled in the trenches and started to use the road.

When the Band responded by blocking the road with a concrete bollard, Roberts removed it with a digger. In response, the band placed reinforced concrete blocks on the road.

"The lines were, at that point, drawn in the sand," Justice Gary Weatherill says in his judgement.

According to the decision, a road "of some kind" was in existence in 1881 but there is no evidence it was a public road and "as it then existed, was nothing more than a trail." The decision says the land title does not mention any right-of-way or easement, and there is no evidence the road was ever maintained by the province.

Justice Weatherill says "it can easily be concluded" the road is part of the Band's reserve and not Crown land.

"Just because the petitioner has put forth numerous maps and surveys that identify that a roadway or a trail or something exists does not mean that it is a public roadway," Weatherill said.

Roberts argued if he is not granted the injunction to use the road he will not be able to carry on his farming operations or collect firewood from trees that have fallen onto his land. He also "steadfastly" refuses to agree to pay $1,200 a year to use the second road, which the Justice describes as "a reasonable compromise" until the matter is finalized.

Weatherill goes onto say he does not accept Roberts' claim that the anxiety and uncertainty caused by the issue have done him irreparable harm, saying much of the frustration and anxiety is self-induced.

"The issue of access can, in my view, be easily resolved with the agreement the respondent proposes, but Mr. Roberts, stubbornly and, in my view, unreasonably, refuses to entertain it," Weatherill said. "He bought the property with full knowledge of the access issue and of the respondent's position respecting (the) road."

The Justice goes onto say from comments he heard in the courtroom that day, it appeared Roberts has no intention of building a house on the land and is selling the property for a "handsome profit" but needs the road access in place so he "can get the price he seeks."

Ultimately Justice Weatherill dismisses the application and orders Roberts to pay the Splatsin Indian Band $100 per month to use the second road while also guaranteeing access so long as the price is paid.


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