Bonnet Plume Outfitters is arguing the Yukon Lands Act gives outfitters too little protection from a territorial government intent on razing cabins it deems unlawfully built on Crown land.
“It’s quite frankly frightening,” Nic Weigelt, a lawyer who represents Bonnet Plume owners Chris and Sharron McKinnon, told Yukon Supreme Court on Monday.
“It is simply not good enough for the government to walk into the registry in Whitehorse, plop down their documents, and then, whenever 30 days goes by and nothing happens, go burn or dislodge or destroy the building in question,” said Weigelt.
If there are no challenges to the law as it stands, “quite frankly, it’s a cakewalk for the government” to destroy a cabin, he said.
Weigelt wants Yukon Supreme Court Justice Leigh Gower to suspend a forthcoming summons that would allow the Yukon government to destroy the 65-square-metre cook shack and several outbuildings the McKinnons built beside the Bonnet Plume River.
He is also calling for a hearing that would explore the government’s actions seeking that summons.
If successful, Weigelt’s argument could set a precedent for the entire legal process the government must follow to have cabins removed.
The McKinnons built a cook shack and outbuildings near the Bonnet Plume River — a Canadian heritage river — in the summer of 2005.
The government lands branch investigated whether the Alberta-based outfitters had authority to erect the structures following complaints by the Na-cho Nyak Dun First Nation.
Last fall, letters were sent to the McKinnons demanding documented proof they had authority to build the cabins, and giving them a deadline to provide it.
On December 19, citing a lack of proof such authority existed, Yukon government lawyers filed a petition seeking by court order to remove the structures.
That petition was sent to the McKinnons by fax on December 21 and a registered letter on January 4, said Weigelt.
The delivery of the official notice is the crux of Weigelt’s case.
The notice must be personally served, he argued.
And the current requirements, which consist of a registered letter and two notices posted in a conspicuous area near the structure in question, could see a legitimate cabin razed while its owner is unaware of legal proceedings, he said.
The act does not provide the government with authority to start legal action to destroy a cabin without first letting the person who erected it know that action has started, said Weigelt.
“There’s the potential for many, many, many of these cases to arise in the future,” he said. “We’re talking about assets with real value.”
If the law isn’t changed to clarify the process, the government effectively has a “rubber stamp” to destroy cabins, said Weigelt.
“In the interest of fairness, we need the opportunity to stand up and refute what the government is saying.”
Yukon government lawyer Mike Winstanley challenged Weigelt’s position.
If the government were forced to find people connected to what it believes to be an illegal cabin on Crown land, the government’s power to remove illegal buildings would effectively be “stymied,” he said.
Before authority is given to the government to destroy a cabin, a case must be made before a judge, added Winstanley.
The government always does its best to determine who owns a cabin whenever an unknown cabin is found, he said.
Gower asked Winstanley if there is a database plotting all known mining, trapping, outfitting and other land concessions, and the GPS co-ordinates of legitimate structures on them.
There isn’t, said Winstanley.
Gower noted that a lack of knowledge could lead the government to unlawfully destroying a legitimate cabin.
“What’s the safeguard against that?” he asked.
The summons and the 30-day period between the notice and action are safeguards, replied Winstanley.
The Bonnet Plume case is being watched closely by the Yukon outfitting industry.
Several outfitters were in the public gallery Monday, including Tim Mervyn of Mervyn’s Yukon Outfitting.
Mervyn faces a similar fight with the government over a cabin he built near Ittlemit Lake in 2006.
After the trial, Weigelt was energized.
“We’re very keen to make the government go through the steps properly,” he said.
It’s not a stalling tactic by Bonnet Plume, he said.
“We’re prepared to set down for a show cause, but we want to make the government go through the proper procedural steps,” he said.
Gower has reserved his decision.