RCMP investigates as review finds First Nation staff member sold land for a third of its value

The elected chief of Westbank First Nation is promising swift action, including a criminal investigation, following revelations that a staff member sold a plot of land assessed at more than $5 million for less than a third of its value.

The findings come from an independent report written by retired judge Marion Buller, who was asked to look into the March 2021 sale of about 60 hectares of land in Peachland, B.C., to a numbered company for just $1.5 million, a figure that was based on a 12-year-old appraisal.

Buller wrote that she found "substandard" management of the land and its sale, thanks to the "actions and inactions" of current and former Westbank chiefs and council, legal services and the Nation's former chief administrative officer.

Chief Christopher Derickson told CBC that RCMP have already opened an investigation into the matter.

"This land was purportedly sold without valid authorization, and ultimately that purported sale of these lands without an updated appraisal has cost the Nation millions of dollars," he said.

He acknowledged the report "clearly demonstrates multiple failures" of the Nation's government, and vowed to do what is necessary to fix the problems Buller identified.

"I want the members to know that we are taking this very seriously," Derickson said. "We are welcoming the accountability and scrutiny of our membership."

Buller's report identifies the staff member responsible for the sale as Raf De Guevara, who was a director of intergovernmental affairs and title and rights for the Nation at the time. Derickson said De Guevara no longer works for the Nation, and contact information could not be immediately located.

Sale price based on 'guesstimation'

The independent review was prompted by a petition from members of the First Nation who were concerned about how the sale was handled, Derickson said.

According to Buller's report, the land in question was supposed to be part of the planned Ponderosa/Pincushion Ridge Development, a 185-hectare project including a championship golf course, housing, sports facilities, shopping and a winery.

The Peachland property at issue in the report was originally Crown land within the Westbank First Nation's traditional territory, and ownership was transferred to the Nation for $1 in 2011.

That area of the development did not go ahead as planned, and in 2019 chief and council passed a band council resolution authorizing the sale of the land for $1.5 million, based on a staff report citing an outdated appraisal.

"Chief and council knew, or ought to have known, that Mr. De Guevara's recommendation of an initial asking price of $2 million and sale price of $1.5 million was based on a 2009 real estate appraisal and not a current one," Buller wrote.

"Chief Derickson did ask Mr. De Guevara for an updated real estate appraisal of the Peachland property to justify the selling price, but Mr. De Guevara failed to obtain one."

De Guevara also failed to get specific permission from chief and council when he signed the sales agreement with the numbered company, the report says. The numbered company, 1284464 B.C. Ltd., has three listed directors: Charles Westgard and Norman Porter, who are both associated with a Surrey, B.C.-based development firm, and James Marshall of West Vancouver, B.C.

Buller wrote that when she interviewed De Guevara, he told her the sale price was a "guesstimation" and he believed a sale of $1.5 million was a "huge win" for the Nation.

She said that was a "careless way of determining the appropriate value of the land" and not in the best interests of the Nation.

Buller outlined a number of other issues with how the sale was handled, including problems with record-keeping, non-compliance with the Nation's policies about in-camera meetings, a lack of public discussion about the planned development, and the failure of Derickson to act as negotiator during the sale, as required by the Nation's constitution.

Unknown whether anyone benefited

But some big question remains: why did this happen and did anyone benefit from selling the land at such a low price?

"I was unable to determine whether any WFN chief, councillor, member or staff personally gained from any of the transactions involved in the Peachland property or Ponderosa," Buller wrote, noting she did not have the ability to issue subpoenas or place people under oath.

Derickson said he hopes that further investigations will lead to more answers.

In the meantime, he said chief and council have already taken action on a number of Buller's recommendations, including recording all council meetings and making them available to the public online.

They're also working on developing structures for managing all assets, including land. The Nation's constitution has clear rules for managing reserve lands, but the Peachland property was owned in fee simple, so it fell outside of the existing policies.