Reacquisition of the KVR by the Penticton Indian Band

Submitted by Michael Brydon on Thu, 2010-02-04 21:58
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[Update 22 March, 2010: I have posted a more detailed summary of this issue here]

The Penticton Indian Band (PIB) has recently made a request to the federal government (Indian and Northern Affairs Canada—INAC) to reacquire the rail bed granted to the Kettle Valley Railroad (and subsequently the Canadian Pacific Railroad).  As you are no doubt aware, this land runs through Sage Mesa and the West Bench.

INAC, as part of its duty to consult, has asked the RDOS to comment on the proposed transfer. Please let me know if you have any comments on this either by using the comment feature below or by email.

Please see the INAC letter for more detail.  Click the map on the left to get a larger version.

 

 

Issues: 
parks
KVR
Neighborhoods: 
West Bench
Sage Mesa

Comments

Michael Brydon - Tue, 2010-02-09 10:06

Here are some of the comments from residents I have received so far.  These arrived by email so I have removed names and edited slightly for brevity.  I invite everyone to pitch in their two cents either by replying or via email.

I have no concerns about this happening. These sections of lands were taken away from the PIB when the government wanted to put in a railway. There is no longer any railway so I feel the land should go back- probably not a popular opinion among some Pentictonites, but I have lived on reserves and worked with aboriginal peoples for many years, so perhaps have a different perspective. It looks to me as if the different parties involved are working on ensuring public access across these lands in those areas where roads are crossing them.

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I oppose any claim the PIB has on these lands.

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I'm very much concerned about the process by which this is being dealt. The information we have been given is sketchy at best; what little information we have is not being made available to the community at large, let alone those local residents who will be most affected by the proposal. [...]  I understand this is a federal matter but that is no excuse for not bring the issue into the public domain, however difficult that may be. Failure to do so, will lead to much greater misunderstanding and dissent.  I understand the matter is coming up at the RDOS Feb 18th Board meeting and I would hope that as Director of this area you will press for disclosure of more information from INAC and for an open public discussion; community input by those intimately affected is of utmost importance.

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If the federal government wishes to give the PIB 130 acres of land, give them crown land that does not affect private property or the lifestyle of the present taxpayers. It seems to me inconceivable that some 400 non-native residential properties could be split down the middle by 80 feet of Indian Reserve.  Provincial bylaws and regulations on both sides of non regulated, non building code, non policed strip of land controlled by the PIB council who can pass policies that are not answerable to either the provincial or federal governments.  Would we have to pay a tariff to use a bridge that crosses Indian land in the future?  What about private road crossing like that to the Pine Hills Golf course?  Could the PIB charge anything they wanted?  There seems to be no controls over them.  How would the RDOS enforce bylaws such as noise, animal control and no discharge of firearms on a strip of Indian land running through our residential areas?  I believe that would be impossible.  They could put up billboards on each end of the bridge on the West Bench.  Why not, they would be on Indian land.

 

I believe a real case could be made for the fed’s to give the entire rail bed to the RDOS, especially in Area F.  In the future there is the possibility of 750 homes constructed on the gravel pit and Pine Hills & Sage Mesa golf courses.  These developments would require sewage disposal.  The rail bed is graded directly to the Penticton disposal plant including a steel structure over the river.  Again think of future water needs.  Presently it is used extensively as a recreational area, walking, biking etc.  This rail bed could be critical for the future development of the Greater West Bench area.  If given to the PIB we could well be paying them for its use in the future.  Could it also be important to Faulder?  I am sure other area directors could also have positive uses for the rail bed. Who pays the taxes anyway, natives or non natives?  No development, no taxes to the Province or Feds.[...] I really think the RDOS should ask for ownership.  Why are the residents of the Greater West Bench having to contest ownership of the rail bed with the PIB when the city of Penticton appeared to have no problem getting all rail beds within the city boundaries?  Is the rail bed part of the Canada Trail?

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This land should revert to the crown or stay with CPR. The band settled their claims with the BC Government about 1988 and received a fair settlement Why should they be given additional land?

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Al Tinka - Wed, 2010-02-10 09:59

As I see it, there are 2 separate issues, although very closely related: Land ownership and land use. In an ideal world it should be less important who owns these lands, as long as their use can be managed in a fair to all, reasonable and just way (with all its implications). However, from our past experience I am justifiably concerned that this type of use might not be the case, if the lands are owned by the PIB. For this reason, as well as most of those mentioned by other contributors to this forum, see above, I am opposed to reverting the ownership of these lands back to the PIB.

Anonymous (not verified) - Thu, 2010-02-11 09:17

I agree wholeheartedly with you Al. Perhaps PIB can explain to the public what their intentions are for the KVR which may alleviate stakeholders concerns.

Michael Brydon - Tue, 2010-02-09 10:17

Information on the history of the First Nations reserves around Penticton is a bit sketchy.  However, I did find this 1974 report to the Union of BC Indian Chiefs which fills in some of the gaps, especially regarding the cut-off of the West Bench under the Veteran's Land Act (VLA) and the sale of adjacent lots (now Husula Highlands, Westwood Properties, and Sage Mesa) to individuals.  Unfortunately, it says little about the KVR per se, although it does mention the issue of cut-offs for rail right-of-way.

The link to the file is here: http://www.ubcic.bc.ca/files/PDF/McKenna_McBride/lands.pdf. Please note that this is a scanned document, so it is quite large.

Michael Brydon - Wed, 2010-02-17 22:34

This document (link below) does not contain any additional information on the cut-off of the KVR from the Penticton Indian Reserve #1.  But it does contain some background on the relationship between the Okanagan bands and the Department of Indian Affairs (DIA) circa 1900. Some might find this interesting reading.

Another element in the breakdown of peaceful and progressive life on Okanagan reserves was the increasing influence of the DIA bureaucracy, which gradually broadened and strengthened its control over nearly all aspects of reserve life. The DIA was instrumental in destabilizing Indian village politics, [...] Okanagan chiefs became little more than clients of the local agents, and if they offered competition or acted independently, they were summarily deposed. In each era, the dominant European institution buttressed chiefly authority and manipulated chiefs to achieve its goal, whether that goal was making corporate profits, attaching the Indians to the church, or building a bureaucratic feudal empire. In these unequal relationships, support for chiefs lasted only as long as they remained useful and compliant.

THE RESPONSE OF OKANAGAN INDIANS TO EUROPEAN SETTLEMENT by Duane Thomson

Michael Brydon - Thu, 2010-03-04 22:36

I found the following from the Globe and Mail. The article summarizes the court decision at the root of INAC's current actions regarding the KVR land:

February 14, 1985 Thursday

Judge gives CP land back to Indians

DATELINE: Vancouver BC
BYLINE: CP
LENGTH: 286 words

VANCOUVER (CP) - A B.C. Supreme Court judge has ruled that Canadian Pacific Ltd. and its real estate arm, Marathon Realty Co. Ltd., must return 13 acres of land to the Penticton Indian Band. The decision will probably be appealed, CP lawyer Norm Mullins said, because it could affect the outcome of two disputes in Alberta, one in Ontario and one at Hope, B.C.

The CPR paid $6,560 for the land from the band's reserve near the Penticton airport in 1949. It was used as a right of way for CP's Kettle Valley line until 1976, when the railway stopped using the line and later transferred title to the land to it to its subsidiary, Marathon Realty.

Justice department lawyer William Scarth, acting for the federal Government and the band, said the land was appraised at $178,500 in 1979, without an icehouse and pumphouse the railway company had built on it. The claim was for return of the land and damages for loss of revenue from it since CP stopped using it as a right of way.

Mr. Justice Kenneth Meredith dismissed the damages claim, saying the band had not lost 'anything substantial by reason of the deprivation of the lands.' The federal cabinet of the day consented to the the railway's purchase of the land. Judge Meredith interpreted the 1948 cabinet order and relevant sections of the Indian Act and the Railway Act to mean that the railway could not sell or transfer the land and could keep only what it needed and was using to run its railway. 'The purported alienation of the lands by CP to Marathon is illegal as contrary to the Railway Act,' he said. 'Because the lands are no longer necessary and are thus no longer used for purposes of the railway, they must be restored to the Crown.'

 

 

 

Michael Brydon - Thu, 2010-03-04 23:16

For anyone interested in more of the legal details, I dug up a copy of the Meredith judgement referred to in the Canadian Press story above. The decision was upheld on appeal.

Anonymous (not verified) - Wed, 2010-04-07 17:55

Very good, I really enjoyed that. Is there somewhere I can read more about it?.

Michael Brydon - Fri, 2010-04-09 11:58

Well, you asked for it... The transcript of the appeal has been posted here.

Michael Brydon - Wed, 2010-02-10 14:17

Ron Perrie gave me this clipping (warning: large scanned file) from August, 1998.  The story provides a bit more background on the KVR issue.

See also these stories which provide a follow-up on meetings with the Provincial Minister of Environment, Land and Parks in 1998.  Minister McGregor's response to the RDOS at that time was that the province did not have enough money to buy the land from Canadian Pacific Rail and that the RDOS should try to strike its own deal with the company for the land.

 

Frank Martens - Wed, 2010-02-10 16:40

Here we go again! I'm not a native, but I have been a property owner in Summerland since 1968. As with the Penticton Airport, when the federal government "expropriated" that land for the construction of an airport, it "expropriated" the land along the CPR right of way many years ago for the specific use of building a railway along its corridor. Now "whitey" wants to use the right of way for his own use. I have been a member of the Trans-Canda Trail since its beginning here in BC and have contributed larger than average sums of money towards the trail, and have an oversize plaque in the Penticton plaza to prove it. Just what do you think the PIB is going to do with the right-of-way? Build houses along it? I'd be more worried that Penticton land developers would be more apt to do that than the PIB. I wholeheartedly approve of giving it back to the PIB who are the rightful owners of the land.

Anonymous (not verified) - Thu, 2010-02-11 11:02

Several years ago on a trip along the Chilean coastline we noticed that as they were building the Pan American freeway they were also building new over and underpasses for an abandoned rail grade. When we asked why, the explanation was that at some time in the future, all they would have to do is reinstall the steel rails. Is our future so written in stone that we will never go back to rail transportation, or should we learn something from the Chileans.

Anonymous (not verified) - Tue, 2010-02-16 03:15

As long as the PIB is willing to sign a statement guaranteeing free and open, public access to the entire length of land in question for a period of 100 years (or more), then I have no problem with them taking ownership.

Andrew Drouin

Michael Brydon - Wed, 2010-02-17 17:22

Several people have contacted me pointing out that roads and water lines cross the KVR land.  Just to clarify: INAC has a separate process for organizations  that have "encumbrances" on the land in question.  Organizations such as the provincial Ministry of Highways and Infrastructure and the West Bench Irrigation District have already been notified by INAC that they will have to make arrangements with the Penticton Indian Band just like they do with any other land owner (e.g., here is a copy of the letter sent by INAC to the WBID).  These negotiations have nothing to do with the RDOS.

 

Anonymous (not verified) - Thu, 2010-02-25 22:43

 This well used recreational trail has been a great benefit to those using it and is a source of pleasure and physical exercise to many people not only those residing along it but from Penticton and other areas.  I am really concerned that Inac would possibly give this valuable land to the Penticton Indian band who would be free to use it for their own use without any legal or statutory control from taxpayers and residents.  Who knows what they would do with it ; perhaps they would blockade it or refuse use by non natives or even charge a fee for its use. Any agreement for its use or development with the Band would not be worth the paper it was written on, in my opinion.  As the band is unaccountable to anyone, we would lose any leverage to retain this valuble valuble track of land which I belief is already part of the Trans - Canada Trail

 

I am totally against PIB having any jurisdiction or ownership of the trail ; being currently open for free usage by anyone, including Band Members, we must not contemplate its loss to our community.  To protect our access and to manage its maintenance and use ,I I would suggest that Inac deed this trail in its entirety to the R.D.O.S. which would assure its usage by all people today and in the future.

Sincerely.

E.A.Anderson.  West bench Resident

Michael Brydon - Tue, 2010-03-02 23:25

The administrative (staff) report on this issue can be found on the RDOS site.

Anonymous (not verified) - Wed, 2010-03-03 20:36

I am very much against this proposal. I am appalled that there has been no consultation with the area residents and suggest that no transfer of this property be done until such a process has been completed. There are many issues that I find have not been answered. I can't help but think about the residents of Caledonia Ontario and how that has evolved into civil chaos for those residents and is still not resolved after many years. The past performance by this Band has been of confrontation when issues arise that have not been resolved to their satisifaction. The blockade of area roads occurred in the past. I am concerned that property values will decline as there are no assurances that access will not be altered or stopped at some point in the future. Will area residents be charged a fee to cross the rail bed? Will area residents be held hostage when the local Band has non related issues with goverrnment that are not resolved to their benefit? Threats have been issued from the Band in the past. The list goes on. I have no confidence in the INA Ministry as there has been no offers made to the RDOS or Penticton or anyone else to take over the right of way other than to the Band. Why is this? There has been no development plans presented as to what the property will be used for. In fact the right of way is totally useless to the Band as it is too narrow for residentail development but could be used for non approved industrial development in the middle of a residential area. The Band does not have follow the development guidelines and bylaws that the residents of the area do. I have grave concerns about this and can think of nothing good coming from it. I will not be in support of any change other than the property be left the way it is, a trail to be used by all in a responsible manor.

Michael Brydon - Thu, 2010-03-04 22:26

The City of Penticton has responded to the request for comment from INAC with an objection.  Please see the story in the Penticton Western News.

Anonymous (not verified) - Sun, 2010-03-07 16:01

I am a owner in Sage Mesa and have been paying my property taxes for the last twenty years.  I have not received any information from you or the RDOS with regards to the railbed.  When I first purchased my property I did contact Canadian Pacific Railroad and advised that I would be interested in purchasing the property that runs along side of my property. They advised me then in early 1990 and 1991 that they have had numerous owners that had been in contact with them advising that they would be interested in purchasing a portion of this land.   I question you as to why were the residents not notified about this situation.  This land I was told is controlled by the federal government.  Why would the federal government consider allowing the Penticton Indian Band to reaquire this land when there are roadways, bridges and driveways that pass through the railbed.  This has also been used as a walking path for numerous years.  Why have the residents of Westbench and Sage Mesa not notified about this situation.  I found out from friends that were online looking for trails for mountain biking when they came across this web link.  I think a mailout should be sent to all owners in these areas to let them know what is being considered.  The federal government should be made aware of the fact that the residents of these areas have not been advised of this situation.


 


Concerned property owner in Sage Mesa


Debbie Desgagne

Anonymous (not verified) - Tue, 2010-03-23 15:22

Michael

 

The information on your blog certainly backs up your opinions.  Having your own opinion is one thing.  Not asking the opinions of the people you have sworn to represent is entirely another issue.  You have failed to put a mail out as requested by myself and other APC members.  In front of the board you gave only your own point of view and did not give the views of the residents of this area.  Your actions indubitably influenced the other directors as they had no idea of the situation in our area and swayed their vote on the motion.  In my opinion and 99% of the residents I have polled, you have failed in your duty as Director of Area F and particularly the residents of West Bench/ Sage Mesa.

 

You seem to miss the point entirely.  The vast majority of our residents want to be able to have control over whatever is done with the railbed which we consider an integral part of our community.  You seem consumed with walking trails and parks.  If this 5 km of railbed becomes Indian reserve we will have lost control and all our rights to use this land forever.

 

Many residents fear what would happen in the future.  One only has to remember the actions of the PIB in the past, roadblocks on Green Mtn Rd bankrupting Apex Alpine, masked braves in camouflage occupying the Penticton Airport, the same PIB braves jumping out of vans creating roadblocks and intimidating people in other parts of BC.  The leadership of the PIB used these tactics to leverage the Federal Government whenever they believed it was necessary.  Even today, Past PIB Chief, Stewart Phillips is at a roadblock in West Kelowna.

 

What guarantee would we have to use the railbeds when needed, without problems?  And, why should we have to negotiate with the PIB every time we want to make use of or improve the railbed in the West Bench/Sage Mesa community?  We do not make claims on the railbed outside of our community, only the 5 km within our boundaries. The present Chief Kruger may be more amiable, but he is only empowered for a short term as are you.  Since the Federal Government is the only body that can settle land claims why do you believe you should be negotiating with Chief Kruger?  Are you after Stockwell Day’s job?  It is hard for me to state how disappointed many of the people are who supported you in the last election.  We hope that you will start to voice the opinions and represent the majority of the residents instead of working on your own agenda.

 

Randall Enns

 

Anonymous (not verified) - Tue, 2010-03-23 18:00

This is a comment in today's issue of the pen Herald by Fred Ritchie of Naramata.


Dear Editor:


The Penticton Indian Band has a point......the 56 hectares of band land in question was stolen from the band for the Kettle Valley Railroad some 100 years ago with no remuneration.


The column (in the Herald) missed the point that Chief Kruger is sincerely anxious to sit down with the concerned citizens and develop a comprehensive community plan via the RDOS, which would please everyone.  In spite of the fact that in the past we took away hundres of acres of their best land from the reserve.


The citizens have to realize that the land is a part of the reserve and alwys has been since Governor Douglas laid it out.  It was stolen from the the band for the railroad.  It is band land and they just want that fact formalized and recognized.


Chief Kruger is extending his hand and inviting the concerned citizens to sit down at the RDOS table and forget the crazy suggest that it be brought up to the Stockwell Day level.


The age of cowboys and Indians is long past.  We are presently into a better era of working together.  Let us not spoil it.


signed Fred Ritchie


Naramata


 


I concur with Fred's point of view whole heartedly!


Frank Martens


Summerland


 

Anonymous (not verified) - Mon, 2010-03-29 10:53

Fred and Frank, you don't live in our community and this will have no impact on you.  You do not have to cross the railbed everyday to go home.  How would you like to have Naramata Rd. owned by the PIB or for that matter any outside enterprise?  I think you would be singing a different song.  As for the stealing, the natives were paid $500 per acre.  We are not asking for the whole railbed.  We just want the 5km running through our community.


Evelyn 


Sage Mesa

Anonymous (not verified) - Mon, 2010-03-29 16:52

Thanks for  not jumping all over me, Evelyn.   I sympathize with your situation as to your location, however, we are all neighbours, including members of the Penticton Indian Band.  Therefore we should all empathise with them as well.  I'm not sure where you got your information about them having received $500 an acre for the right-of-way.  I have never heard that before.  Incidentally, I have a relative in the PIB and my grandchildren are members, although they don't live there.  As I mentioned in an earlier note, I have contributed quite a bit of money to this section of the Trans Canada Trail so feel somewhat of an owner.  But that still doesn't mean that I don't think the PIB should have control of that section that goes through their reserve as well as the railway line all the way to Faulder.  I don't think there will be a great deal of difference as to the Trail's usuage.  In any case I think the case has been more than settled already.

Anonymous (not verified) - Tue, 2010-03-30 00:39

I got my info from this blog under the Meredith Report. 


WEDNESDAY, the 15th day of DECEMBER, 1948.


PRESENT: HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL:


WHEREAS the Canadian Pacific Railway Company requires the land herein described


for a railway right of way through Penticton Indian Reserve No. 1;


AND WHEREAS the Railway Company has agreed with the individual Indian owners on


compensation at Five Hundred Dollars per acre amounting to Six Thousand, Five Hundred


and Sixty Dollars, payment of which amount has been received from the Company;


AND WHEREAS the Indian Commissioner for British Columbia and the Director of


Indian Affairs advise that the land be sold to the Company for Six Thousand, Five Hundred


and Sixty Dollars;


THEREFORE His Excellency the Governor General in Council, on the recommendation


of the Minister of Mines and Resources and under the authority of section 48 of the Indian


Act, is pleased to consent to and doth hereby consent to the sale of the land herein


described to the Canadian Pacific Railway Company for Six Thousand, Five Hundred and


Sixty Dollars without any terms or conditions other than the payment of the said sum of


money.


 


I don't jump all over people. I just figure you are talking from an uninformed perspective. I have nothing against the PIB.  I know many of them and think they are nice people. You said," doesn't mean that I don't think the PIB should have control of that section that goes through their reserve".  I ask shouldn't we have the same consideration?  Or do you think we non-natives are second class citizens and shouldn’t have that right. The 5 km in our community is TOTALLY surrounded by private homes and does not border any native land. Why does the PIB need to have it?  I can see them wanting the railbed running through their community.  For the PIB to own our piece of railbed would be like your street or back lane being owned by the city of Summerland and if you wanted to put in sewer or water lines you would have to ask Summerland’s council.  It doesn’t make any sense.  I would be against any private party owning this land. I just want access and usage of the land in our area to stay neutral. Why can’t it stay as crown land?  Why must a group own it?   And no it is not a done deal! 


Evelyn


PS: Sorry for the typo, the last comment should have been titled "You're an Outsider"  Also 'outsider' was not meant to be a derogative comment.  I just meant you don’t live here.  Yes we are neighbours, but I wouldn't want you to tell me what I can do with my backyard and I wouldn't think of telling you what you can do with yours. 


 


 


 

Michael Brydon - Tue, 2010-03-30 15:02

Hi Evelyn,

Please see my explanation of this under "The Proposed Addition to Reserve (ATR)" on my summary page (http://areaf.rdos.bc.ca/cms/KVR).  Briefly, the issue here is not whether the PIB was paid fair market value or any other amount for the KVR lands.  The issue is the limited nature of the contract between the CPR and the Penticton Indian Band.  The 1985 court decision was that the KVR land had to be returned to IR#1. In the May 14, 1986 appeal of this decision, Judge Carrothers explained:

It is clear from this that the Crown gave a qualified consent for a limited conveyance to the taking by the railway of the parcel in question. That qualification took the form of a limited conveyance, that is, a conveyance for railway right-of-way purposes [...] In short, I agree with the conclusions of the trial judge and for his reasons, together with what I have said, I would dismiss this appeal.

I post this information not to argue, but simply to help residents of Area F understand why, as Mr. Day made clear, this transfer of KVR/CPR land to the PIB is a legal, not a political issue.

Anonymous (not verified) - Tue, 2010-03-30 16:26

 


Evelyn said:


Yes we are neighbours, but I wouldn't want you to tell me what I can do with my backyard and I wouldn't think of telling you what you can do with yours. 


I can't agree with your argument that we own our land.  As a matter of opinion (note I didn't say fact) none of us own the land on which we are squatting.  All the land belongs to our dearly beloved government (which is all of us) and it can, indeed, tell you what you can and cannot do with it.  Which in turn does mean that I can tell you what you can or cannot do with your backyard, and vise versa.  Just as an argumentive example, if city bylaws state that you cannot have chickens in your backyard, I, your distant neighbour, can lodge a complaint against you if I see chickens there.  You may pay taxes on "your" property, and you may have "title" to your property, but that doesn't mean a darn thing to the government.


Therefore, if the highest court in the land has said that the land should be returned to the PIB, there is nothing you or I can do about it, $500 per acre or not.  Thanks for researching that for me, though.

Anonymous (not verified) - Tue, 2010-03-30 23:28

BINGO! You hit the nail right on the head!  If the railbed is owned by the crown, RDOS or the city of Penticton,  we all have to live within bylaws.  If it is native land, they do not have to go by our bylaws. 

Anonymous (not verified) - Fri, 2010-04-02 13:06

Evelyn said:Yes we are


This comment was not posted by Evelyn.  I take it was posted by Fred.

Anonymous (not verified) - Sun, 2011-01-02 19:27

This is a non-starter. The land was turned into a linear park to be enjoyed by ALL Canadians.

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