The Osoyoos Band is located in the town of Osoyoos in the Okanagan valley, British Columbia. It has over 400 members.

History of the Claim:

When British Columbia entered Confederation in 1871, the province agreed to transfer provincial lands to Canada. The purpose of this was for Canada to be responsible for creating reserves for First Nations. The land transfer process, however, was very slow. In fact, it wasn't until 1938 that most of the lands in British Columbia were transferred to Canada. As a result, the reserves were referred to as "provisional reserves" even though they were administered by Canada.

In 1913, Canada set aside 32,097 acres of land to be set up as a reserve for the Osoyoos Band. The Kettle Valley Railway Company (KVR) was interested in the Osoyoos I.R. #1. It had plans to build a branch line of railway from Penticton to Osoyoos Lake. A few years later, in 1922, the government gave Osoyoos I.R. #1, comprised of 3.97 acres of land, to the KVR for a right of way. The Band approved the Osoyoos Branch Line project. In exchange for their land, the KVR paid $894 to the Crown. The money was to be held in a trust fund for the Band.

The Osoyoos Branch Line project was cancelled in 1978. In 1986, the Band wrote to the Canadian Pacific Railway (CPR) and asked that the land be returned to the Band. The following year, the CPR notified the Band that it was in the process of negotiating the sale of the land with British Columbia. Immediately, the Band contacted the Department of Indian Affairs to notify them that British Columbia was purchasing the land and asked that the lands be returned to them.

According to The Railway Act of 1999, a railway company was permitted to use Crown land for railway purposes only – a company was not permitted to sell the land. These terms also apply to reserve lands since the Crown has legal title to the reserves. Despite this, the CPR transferred the Right of Way Land to British Columbia. Although the Crown had a responsibility to protect the Band’s interest, it did not intervene.

In 2005, the Osoyoos Band submitted the specific claim. The Band asserts that the Crown was in breach of its fiduciary duty when it did not ensure that the land was transferred to the Osoyoos Band. The government had a fiduciary duty to protect the Band’s interest and therefore should have sought legal action on behalf of the Band for the return of the land.

The government rejected the Band’s claim. They argued that Canada does not have an outstanding obligation to the Band because when the KVR obtained the right of way to Osoyoos IR #1, it was a provisional reserve and therefore the terms of the Indian Act did not apply. Since Canada had no obligation to the Band, it was not responsible for ensuring that the land was returned to them. In fact, the Crown argued that the Band could have sued the CPR if they wanted the land back.