Cabinet minister Archie Lang should be compelled to testify in the case of a big game outfitting company illegally occupying land, the outfitter's lawyer argued in court this morning.

Nic Weigelt told Yukon Supreme Court Justice Leigh Gower that only through cross-examination of the Energy, Mines and Resources minister can there be a thorough defence by his clients, Chris and Sharon McKinnon of Bonnet Plume Outfitting.

According to the letter of the law, Weigelt argued, it is the minister who must form the opinion that there is an illegal occupation of land, and not the manager of lands, nor anyone else in the lands branch.

'We need to see the opinion of the minister,' Weigelt told the court. 'And then we get to cross-examine the opinion, to see if that opinion is valid.'

Yukon government lawyer Mike Winstanley suggested the defence's argument was a play on words without substance.

The phrase in the Territorial Lands Act that says 'in the opinion of the minister' is a catch-all, well-established and accepted legal phrase that gives decision-making authority to government officials to investigative and prosecute everyday matters.

The lands act does not suggest, and was never meant to suggest, that the minister responsible for lands be involved in every case where there are suspicions of illegal occupation, Winstanley argued.

He said it doesn't make sense that the minister would be involved, and to read otherwise would create an unnecessary burden in the day-to-day operations of the lands branch.

Gower has reserved his decision, and hopes to deliver it in a week or two.

Meanwhile, Weigelt is seeking to examine senior officials with the lands branch, should Gower find that the minister is not obligated to testify.

Lang was the minister when the suspect buildings were erected in 2005 and 2006, and remains the minister responsible today.

Chris and Sharon McKinnon of Bonnet Plume Outfitting are accused of building a lodge and three sleep cabins along the Bonnet Plume River without any authority or written permission from the lands branch.

The McKinnons argue they did have authority on land that is within their outfitting concession. They have yet to disclose their defence, other than to suggest their permission was understood through conversations with government officials.

The Yukon's land's branch is seeking an order, a summons, to compel the McKinnons to prove to the court they have the authority to be there.

The original summons issued by another judge of the Yukon Supreme Court in 2006 was suspended by Gower last March in a challenge by the McKinnons.

Weigelt argued back then that the grounds for seeking a summons including posting a notice on a cabin in the middle of nowhere and receiving no response within 30 days were much too willy-nilly for such a serious matter.

Whether that was the case involving the McKinnons was of no consequence, he argued, adding if the law is flawed, it's flawed.

Occupants of a dwelling, he said, shouldn't be threatened with the loss of their property simply because they weren't home in the middle of winter to see the notice.

Gower accepted the argument, and set aside the summons.

It was believed back then the government and the McKinnons would somehow find a way to get back into court to argue the merits of each side, though that has not happened.

The lands branch is now seeking a new summons to force the McKinnons into court, but Weigelt is arguing the process is still flawed.

Weigelt told Gower this morning that it is a very serious matter when someone is in jeopardy of losing their dwelling.

The McKinnons, he argued, have the right to know if the summons is being sought only after a review of the evidence at the highest level 'in the minister's opinion.'

The evidence the government is relying on to support the summons is flawed, in that it does and does not convey a compete picture on which the McKinnons can base their defence, Weigelt argued.

Justice Gower invited Winstanley to shine light on the difference between a police officer laying a criminal charge against an individual and a bureaucrat in the lands branch deciding there is a case of illegal occupation.

In both cases, Gower said, the defendants are placed in immediate jeopardy, the accused facing the prospects of a criminal conviction, and the occupant of a property facing the loss of what could be a significant investment.

The judge also challenged the suggestion involving the minister in these types of cases because that is what the Territorial Lands Act says would create havoc.

Surely, Gower suggested, the lands branch isn't facing countless files involving illegal occupation.

Winstanley emphasized the decision to pursue a summons wasn't made lightly.

And it was only after an exhaustive exercise to determine if the McKinnons had proper authority to occupy the land and build the four structures, that the lands branch found no authority existed, Winstanley said.

The territorial lawyer also pointed out that the government is simply seeking an order to have the McKinnons show their proof.

Nothing in issuing the summons will take away any rights from the McKinnons, Winstanley said.

Ultimately, he said, it will the Yukon Supreme Court which decides if the McKinnons have illegally erected four buildings on the banks of a World Heritage River.

The lands branch maintain the company has no legal authority to occupy the building. Branch officials, however, are not sure if the buildings were used during last year's hunting season.