Buildings subject of another legal move

The Yukon government is appealing a decision in the case involving a big game outfitter the government believes is illegally occupying a piece of land along the Bonnet Plume River.

The Yukon government is appealing a decision in the case involving a big game outfitter the government believes is illegally occupying a piece of land along the Bonnet Plume River.

The appeal filed with the Yukon-B.C. earlier this month by lawyer Michael Winstanley of the Yukon’s Department of Justice asserts that Yukon Supreme Court Justice Leigh Gower erred in his ruling of Jan. 18.

Winstanley is asking the Court of Appeal to dismiss Gower’s finding.

The Yukon’s lands branch is also starting a new action against Bonnet Plume Outfitting, in keeping with last month’s decision by Gower and one he made last spring, branch director Lyle Henderson confirmed late this morning.

Henderson said the appeal will go forward, but in the meantime the government will commence a new process to evict the outfitting company.

The government contends the company has no authority - written or verbal - to occupy the site.

Chris and Sharron McKinnon of Calling Lake, Alta., maintain permission to proceed with construction and occupation of the site were implicit in their discussions with territorial officials.

The heart of the case has not been heard, as the past 15 months have been spent in procedural challenges by the McKinnons.

The Yukon government has asked the Yukon Supreme Court to force the McKinnons to provide proof of their permission to build and occupy a lodge and three sleep cabins at Copper Point.

If no proof can be shown, the government wants the court to issue a eviction notice to force Bonnet Plume Outfitting to remove the buildings, or to allow territorial officials to raze the site.

The government is seeking the order under a process laid out in the Territorial Lands Act.

While the McKinnons have yet to produce any documentation establishing legitimate occupation, their lawyer has punched two holes in the eviction process used under the Territorial Lands Act. The first procedural victory came last spring and the second one in Gower’s decision of Jan. 18.

The lands act allows the minister of Energy, Mines and Resources to delegate authority to department officials - through the phrase “in the minister’s opinion” - to avoid involving the minister in day-to-day administrative and enforcement matters.

Similar provisions are included and accepted in territorial, provincial and federal laws right across Canada.

McKinnon’s lawyer, Nic Weigelt of Vancouver, argued there is a limitation to how far the minister can extend his authority, however.

In such serious matters involving the eviction of a commercial business with significant financial investment at stake, it becomes a matter of such importance that it requires the direct involvement of the minister, and not simply department staff, Weigelt successfully argued.

He said in this case, where the law says “in the opinion of the minister,” it should mean exactly that; that it was Energy, Mines and Resources Minister Archie Lang who should have formed the opinion personally.

Winstanley argued the case was routine. Ruling otherwise, finding the minister needs to become involved, would create havoc within the territorial lands branch, he told Gower in his submissions during the hearing in early January.

Gower, however, found that in this case, when an accused is put in such serious jeopardy - as soon as the lands branch commences a legal action - the action should only be commenced when it’s the minister directly who forms the opinion.

No date has been scheduled for the appeal.

Henderson said the lands branch contends that any use of the buildings or site by the outfitters without land use, building or environmental health permits is illegal.

The lands branch, he said, understands the McKinnons were continuing to use the facilities to support commercial hunting last season.

When the department was asked this morning whether it would be seeking a court order to prohibit the use of Copper Point while the litigation continues, there was no response.

Department officials maintain no permission, written or verbal, was given to the McKinnons to build at Copper Point.

The department is using the new action against the McKinnons in its attempt to prevent future use of the site, as opposed to seeking a separate court order to prevent any future use until the initial action is heard in court, Henderson explained.

Normally, he said, it takes about two months to work through an eviction notice for territorial land being illegally occupied.

Henderson said there have been 150 evictions of illegal squatters in the Yukon since April 1, 2003, when the territory took over responsibility of the administration of land from Ottawa. Since then, six cases have gone before the court.

The lands branch has a similar action against Mervyn’s Yukon Outfitting, though that file is on hold pending a result in the appeal and the original action against Bonnet Plume Outfitting, Henderson explained.