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Gas station operator ordered out of location on Penticton Indian Band Land

Gas operator ordered out

After previously being awarded an injunction from the B.C. Supreme Court to stay on Penticton Indian Band land, the operator of Actton Super-Save Gas Station has now been ordered out.

William Vandekerkhove, the sole director of Actton, has operated the business located at Green Mountain Road and Channel Parkway for the last 20 years on Penticton Indian Band land. He had been leasing it for over two decades from Adam Eneas and Sandi Detjen.

At the end of February, Justice Neena Sharma awarded Actton an interim injunction after the business claimed it been ordered off the land with no notice.

This would prevent Eneas and Detjen from interfering with business operations at the gas station for 60 days. That order has now expired.

Actton applied further to the courts for an interlocutory injunction, pending a trial to be allowed to stay in place, but has now been ordered to leave.

Justice Gareth Morley dismissed the application in a decision published Thursday, and made a declaration that Actton has no right to continue in possession of the 101 Green Mountain Road gas station.

"Any continued occupation is a trespass, contrary to s. 30 of the Indian Act," the decision reads.

According to the decision, Eneas holds a Certificate of Possession over lands located on the Penticton Reserve, which he inherited from his mother. In 1987, he built a gas station on these lands, which he ran first with a partner and then with Detjen.

Eneas, Detjen, Vandekerkhove and Jim Allen, Actton's president of retail, met in 1995, and made a handshake deal that Super Save would give payments to Eneas and Detjen in order to operate the gas station beginning June 1, 1995.

The business had extended their lease multiple times, up to 2035. But Eneas and Detjen gave notice back in January by letter of an intention to terminate the lease, and demanded vacant possession by Feb. 25, 2024.

The landlords' counsel then sent a notice moving up the demand for vacant possession, claiming the lease was void because it was never registered properly or approved by the Minister of Indigenous Services.

Justice Sharma previously ruled that since Actton could be responsible for decommissioning and remediating the earth around the gas storage tanks, he would face the possibility of being held financially and legally responsible while at the same time having no ability to ensure that the storage tanks are decommissioned appropriately.

While it is debated whether the lease agreement was made clear that it should be authorized under the Indian Act or that it would have to seek approval of a lease from the Minister responsible for the Indian Act, the agreement is referred to as an informal arrangement known as a “buckshee lease.”

Justice Morley said the leases exist as a matter of social fact, but they are “illegal and unenforceable."

In Actton's petition to obtain an interlocutory injunction, Morley stated that since the relief sought involves occupation or possession of reserve land, its application must be denied.



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