Yukon territorial court has sided with the Kluane First Nation in a long-running dispute over the eviction of two former residents of Burwash Landing.
On Feb. 18, the First Nation changed the locks to the homes of Derek Johnson and Wilfred Sheldon. The brothers later challenged the decision in court, arguing their evictions were driven by a political vendetta.
The two brothers are barred by a court order from living in the community after they were convicted of forcibly confining Colin Johnson in 2013, who later committed suicide.
On Friday afternoon, Justice Peter Chisholm concluded in his written decision that the residency dispute boils down to whether the brothers were tenants or owners of their homes, and whether KFN had grounds to terminate the tenancies or gave enough notice for the termination.
In 2006 and 2009, Johnson and Sheldon made the initial steps to enter into a home ownership program. However, they never followed up with KFN, noted Chisholm.
“No formal agreement was entered into in either case,” he wrote.
Johnson and Sheldon, who were self-represented, had also challenged the jurisdiction of the territorial court, arguing the Yukon Landlord and Tenant Act didn’t apply to First Nations settlement land, and that instead only KFN’s own rental policies should apply. Chisholm disagreed. “A rental housing policy cannot be elevated to the status of law,” he wrote.
While they can coexist, laws always supersede policies, he added.
KFN has been paying the mortgage and insurance on both homes, the judge noted.
“Despite the initial intentions of the parties, the actions of KFN during the years that followed the initial applications are consistent with that of a landlord,” wrote Chisholm.
The two brothers didn’t make any payments and didn’t pursue the completion of a sales agreement, he added.
Chisholm concluded that the tenancy could be terminated by either party.
However, the judge disagreed with the First Nation’s contention that the brothers abandoned their homes.
Both men had been barred from living in the community even before they were convicted, as part of their bail conditions and later their sentence. KFN knew about these conditions, Chisholm said, since they made a submission for the brothers’ sentencing hearing, asking they not return to Burwash Landing.
“In my view, it is disingenuous for them to now suggest that abandonment of the properties has occurred,” he wrote.
KFN did give notice to the brothers, back on March 3, respecting the 90 days notice the judge found.
“The respective tenancies are terminated as of (June 1).”
Johnson and Sheldon are entitled to the return of their belongings, the judge concluded.
Both had argued in court the evictions were part of a bigger political vendetta, as they say the community is split between two families: theirs and the chief’s.
The brothers’ mother, Agnes Johnson, told the court during the trial that there was a “big line” between both families.
“It will take four generations to heal,” she said at the time.
“My daughter Kathleen Johnson was evicted from her home too,” saying the tension was so high she was afraid to go pick up the mail.
KFN disputed that, solely blaming the brothers for the situation.
“The situation is unfortunate, but is the result of court action and actions of the brothers,” Graham Lang, KFN’s lawyer, said at the time.
Sheldon was sentenced to 18 months probation while Johnson received a six-month conditional sentence as well as 12 months probation for the forcible confinement.
On June 25, they were also convicted of breaching the ensuing probation order, and each received a 45-day conditional sentence.
Contact Pierre Chauvin at email@example.com