Technicians wait at the gate as elders smudge the property. A provincial order was issued to allow the Lower Similkameen Indian Band to repatriate ancestral remains on an orchard property near Keremeos. (Black Press file photo)

Orchardists in Cawston have filed a lawsuit against the province after the discovery of a First Nations burial ground on their property in 2016 claiming it has allegedly diminished its value and negatively affected business.

READ MORE: ‘Ancient’ remains found in Cawston orchard

Carmela and Antonio Celentano, who own Celentano Vineyard, filed a lawsuit on Sept. 10 in B.C. Supreme Court that states natural resource officers along with an archaeologist entered their property by force in September 2017. It also states they allowed people on the property who were not conducting a heritage inspection on the burial grounds and had no right to be there, which included members of the Lower Similkameen Indian Band (LSIB).

In 2016, a contractor unearthed human remains while leveling out a grassy hill on the Celentanos property so more apple trees could be planted on the land at the corner of Upper Bench Road and Daly Drive, the Keremeos Review reported. The owners purchased the property, which is within the Agricultural Land Reserve, in 1994 and were unaware of any existing archaeological sites.

The owners reported the discovery to the authorities and negotiations began between the Celetantos, provincial government and LSIB. The aim was to respectfully “re-interment” the remains in a way that “honoured LSIB’s traditions” while also allowing the owners to “continue earning their livelihood as farmers,” the lawsuit states. It adds the LSIB had said it would “forcefully” enter the property if its requests were not met by early September 2017.

On Sept. 7, 2017, the minister ordered a heritage inspection under the Heritage Conservation Act, and, on Sept. 11, Natural Resource officers obtained a warrant to enter the property to conduct the inspection, according to the lawsuit.

READ MORE: Lower Similkameen Indian Band wants answers about future of ancestral remains found near Cawston

In the lawsuit, the Calentanos allege natural resource officers and an archaeologist named Meghan Fisher “knowingly and willfully exceeded the scope of the warrant and the ministerial order in that they did not conduct an investigation but rather used their authority as a pretext to conduct unauthorized remedial work and to trespass on the Celentano property for purposes unrelated to their lawful authorization.”

Some of these violations include conducting remedial work and reburying human remains that were previously removed from the property and placing a boulder as a monument in the orchard which interferes with farming operations, the lawsuit states.

READ MORE: Work begins to repatriate ancestral remains

The Celentanos also allege the province knew about the burial site when they bought the property in 1994 but failed to notify them.

“The province owed the Celentanos a duty to disclose this information and, by failing to do so, wrongfully induced them to purchase the property,” it states in the court documents.

The Celentanos claim that after the discovery, the province declared protection of the burial site, but under a provision of the Heritage Conservation Act that avoids it having to pay compensation.

The orchardists allege they have suffered damage, loss and harm, such as a decrease in property value, loss of use and income and loss of opportunity to sell the property, as well as the “disruption of their retirement plans.”

The province has not yet filed a response and none of the allegations have been proven in court.

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