Buyer beware.
That is the message from the chief of the Okanagan Indian Band (OKIB) as a multi-jurisdictional group looks to complete a deal to purchase the old CN Rail line from Kelowna to Coldstream over the next three-plus months.
OKIB chief Byron Louis, who represents some 2,000 band members, says about 20 kilometres of the old CN Rail line, stretching from Oyama to near Vernon, is land that belongs to Okanagan Indian Band and rightfully, should not have been up for sale by CN.
"We've never surrendered our territory and it's never been legally taken away so we still hold title to our land," said Louis. "One of the things we have warned (the municipalities) is buyer beware. That land is not clear title."
According to Louis, the land the CN Rail line travels from Oyama to Coldstream is reserve land, set aside as a reserve in 1877 before it was taken back by the government of the day shortly thereafter and given to white ranchers.
Okanagan Indian Band chief Byron Louis to group of municipalities looking to buy CN Rail Line: "Buyer beware. That land is not clear title"
— Kevin Parnell (@KP_media1) December 16, 2014
Louis says when CN Rail was give the land to run a rail line through, it was on the condition the land would be returned to the native band when it was not in use as a railway.
"The reserve has been set aside and is privately held by us," said Louis. "Every last band member owns an interest in it. It's privately held land so if people just walk in and think they can do whatever they want, that is trespassing."
During the abandonment process for the rail line, CN offered it for sale first to the federal and then the provincial government before the group of municipalities had their chance and agreed to a $22 million dollar purchase price.
Along the way, the municipalities invited the Okanagan Indian Band to be part of the process but Louis declined and maintains the band's position that they legally own the land.
"I think the municipalities see an opportunity or a benefit and they are taking it and they are doing it with their eyes wide open," he said. "What they are doing is taking a wait and see approach, but they are taking it at their own peril. We identified what our position is and that is that claim was never surrendered (by the band). That has been our position since the 1880's and we haven't waivered from it."
Lake Country mayor James Baker, a retired university professor, said while he understands the issue well, it didn't stop the group from moving ahead to try and secure the rail line as a possible transportation corridor that links the communities of Kelowna, Lake Country, Coldstream and Vernon.
Baker says the land in question, like a lot of the province, is under what's known as a commonage claim.
"It was a mess in 1891 and it's still a mess," said Baker. "Commonage reserves never got properly registered and the province considered it vacant land. It's concerning because it hasn't been settled and the province has been stonewalling for years when all of this could have been settled if the province had taken a more enlightened approach and do what's right."
VOICES OF THE LAND - Commonage Indian Reserve I.R. #9 from Joey Jack on Vimeo.
Baker, who interestingly taught chief Louis in university, defended the purchase of the line and said it's an issue that will have to be dealt with as the process moves along.
"It's really not local government that should be dealing with this because it's a federal and provincial deal," he said. "This will be something that needs to be settled before we can do anything much with the rail line. The courts have pointed out time and again that there is underlying aboriginal title to those lands that have not been settled by a treaty."
Baker expects the issue may eventually be dealt with in a cash settlement with the band or a possible land swap.
So as the due diligence continues and the municipalities attempt to raise enough money to buy the land—Lake Country will go through the Alternate Approval Procecss to try and raise taxes for its portion—Louis and the rest of the Okanagan Indian Band are waiting to see what happens with their land claim.
And Louis says the governments both know exactly what's going on with the land in question.
"They have done their risk analysis and they believe there is a low risk here," he said. "We're saying that's not the case. I'm saying there is a definite risk. They have to deal with the issue of damages. I would strongly advise the government to sit down and negotiate with us instead of gambling. Under the Indian Act there are laws against trespass. If people just think they can just walk in and do whatever they want (on our land) they are trespassing."
According to Baker, another two kilometre stretch of the rail line that passes through part of the Okanagan Indian Band reserve near Duck Lake wasn't included in the deal to purchase the land.