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Penticton gas station owner ordered off band land

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The owners of a gas station on Penticton Indian Band land is now facing a deadline to vacate the reserve after a court ruled its lease, signed by the locatee, was useless.

William D. Vandekerkhove operated the Super Save gas station since 1995. The station at that time was owned and operated by Adam Eneas, the band member who held the certificate of possession. Eneas signed a lease with Super Save and it operated there ever since. The owners added propane and other amenities and improvements.

But Eneas never told Vandekerkhove that the lease was unenforceable unless it was signed by the federal Minister of Indigenous Services. And Vandekerkhove didn't ask, nor it seems, did he check it out.

Earlier this year, Eneas and his spouse decided they wanted to run their gas station again and gave Super Save five weeks to vacate the premises. When Super Save argued about it, Eneas tightened the deadline.

Super Save won a temporary injunction but a B.C. Supreme Court decision yesterday made it crystal clear: The Indian Act expressly forbids non band members from possessing reserve lands without the written permission of the minister.

Super Save must go.

But that may not end the legal dispute. While Justice Gareth Morley said the “buckshee” lease cannot stand, Super Save may have a case for damages.

Vandekerkhove said in affidavits that Eneas “represented that he had authority to enter into a lease with them and that they did not need approval of the Penticton Indian Band council,” according to Morley’s decision. Vandekerkhove said he asked Eneas twice if Super Save needed to consult the band but Eneas “repeated several times that the Site was on his land, it was not owned or controlled by the Penticton Indian Band, and that it was his to lease.”

That was true, but not the whole story.

There’s no indication that Super Save did any further checking on the matter and took Eneas at his word. They used a boiler-plate lease document that made no mention of ministerial assent and Super Save had lawyers on its team to deal with lease negotiations and issues.

The parties renewed the lease several times over the years. In 2005, when it was renewed, Eneas demanded Super Save install new underground fuel storage tanks. A 2017 renewal ostensibly gave Super Save the right to further five-year lease extensions to 2035 in exchange for spending $80,000 upgrading the convenience store.

In January 2024, that all changed. Eneas wrote “to advise that we have decided to take back our gas station… as we wish to regain the use and control of our property for our own business plans.”

Eneas offered $80,000 compensation for the improvements to the convenience store.

Super Save refused to leave unless ordered by the court. The first time Super Save was told they were trespassing was in a response letter from Eneas’s lawyer. The deadline for vacation was bumped up, leaving the company with just days to remove a propane tank and equipment and signs.

“Mr. Vandekerkhove (doesn’t) say anything about what, if any, due diligence they did about determining legal rights in relation to reserve land,” Morley wrote. “If this dispute goes to trial, Super Save will have to explain how it was reasonable for a corporation in Super Save’s position to conclude it had an agreement for occupation of reserve land, but I do not need to address this, since I accept that these alleged representations give rise to a 'serious question' as to an action for damages,” Morley wrote.

— This story was corrected at 11:15 a.m. Monday, May 6, 2024 to say Adam Eneas, not Chad Eneas, is the locatee.

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