A pair of Okanagan Indian Band members have taken the province to court over land on Westside Road they believe they have a right to possess.
In a BC Supreme Court case taking place in Vancouver, Reynold John Bonneau and Mildred Rose Bonneau say the province is in trespass 鈥渁nd has breached its fiduciary duties as a result of its unlawful taking and usage of the lands over which they have a right of possession.鈥� They say Westside Road and Whiteman鈥檚 Creek are in trespass over their lands.
The lands originally belonged to the late Harry Parker, Mildred Bonneau鈥檚 father, and after he died, the Bonneaus eventually came into possession of the lands. They are the current registered holder of the lands.
The two members allege that the trespass has existed since 1964, when Westside Road was realigned and the watercourse of Whiteman鈥檚 Creek was altered.
The plaintiffs are seeking damages for the trespasses and breach of fiduciary duty. They are also seeking an order for possession that would prohibit the province and anyone else from using the realigned portion of Westside Road.
The Bonneaus filed their notice of civil claim in March 2022. A 10-day trial began in Vancouver Dec. 11, 2023.
The province sought to have the claims dismissed, arguing there is no issue for trial, but was unsuccessful.
The province says there is no legal basis for the plaintiffs鈥� claims of trespass and breach of fiduciary duty in connection to Westside Road and Whiteman鈥檚 Creek because those areas are not included within the boundaries of the survey that defines the lands described in the plaintiffs鈥� certificate of possession.
In 1959, the Okanagan Indian Band (OKIB) chief and council passed a resolution that allotted the land to Parker. The next year, the province issued a notice of entitlement to Parker.
Prior to 1964, Parker had an irrigation ditch that flowed to his property from Whiteman鈥檚 Creek. In 1964, the province relocated Westside Road such that the realigned road now cut through Parker鈥檚 lands. The plaintiffs allege that as a result, the irrigation ditch was destroyed and the original watercourse of Whiteman鈥檚 Creek was permanently altered, causing damage and loss for which neither Parker nor the plaintiffs have ever been compensated.
However, the province maintains that the plaintiffs are not lawfully in possession of the disputed lands, given that the lands were left out of a 1983 survey. Meanwhile, the OKIB has not asserted any possessory rights to the disputed lands.
In 2001, the OKIB filed a writ of summons claiming that since the late 1800s, the province has used some or all portions of Westside Road within the boundaries of Indian Reserve No. 1 without legal authority and without compensation to the OKIB. The band sought a declaration that the lands underlying Westside Road are reserve lands for the exclusive use and benefit of the OKIB. Justice Palbinder Shergill, however, found no indication that the OKIB action is still being actively pursued by the band.
Shergill said the issues underlying the dispute are complex and require thorough investigation 鈥渂efore any final determination can be made.鈥�
The BC Supreme Court justice concluded that the province had failed to meet the burden of proving that the plaintiffs are 鈥渂ound to fail in establishing possessory interests鈥� over the lands in question.
鈥淚 am satisfied that the plaintiffs have raised a genuine issue for trial in their claim that the province has breached its fiduciary duties 鈥� by unlawfully taking reserve lands over which the plaintiffs held a possessory interest; failing to act in the best interests of the Indigenous persons that had an interest in those lands; and failing to have honest dealings with the plaintiffs,鈥� Shergill said.
Ahead of the trial, which is ongoing, Shergill awarded the plaintiffs the costs of the application but dismissed their application for special costs.
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