Derelict vehicles sit on land owned by the Kwanlin Dün First Nation in the Marwell area of Whitehorse. (Joel Krahn/Yukon News)

KDFN launches civil suit against man repairing broken cars on Old Village land

First Nation says it’s been asking Tim Smith to clear the land since 2013

The Kwanlin Dün First Nation has launched a civil suit against a man it says is illegally storing and fixing broken cars, among other things, on a plot of land it owns and has set aside for development.

In a statement of claim filed to the Yukon Supreme Court Aug. 2, KDFN alleges that Tim Smith has “made unauthorized use” of Lot 226, known as the “Old Village,” since around 2008 by “using the property to restore derelict vehicles” as well as “storing personal property” in an unsanctioned structure built on the lot. Smith “may also occasionally sleep in the structure in the summer,” the statement alleges.

The First Nation is asking the court to declare that Smith is trespassing and order him to remove his belongings, or to allow for KDFN to remove them without consequence.

KDFN is the registered owner and pays property taxes and servicing fees on Lot 226, a residential area for KDFN citizens until 1986, when the First Nation reached an agreement with the federal, territorial and municipal governments to move residents to McIntyre. Since the relocation, which finished in the 1990s, KDFN has not allowed any residential structures to be built on the land nor leased any part of it to residential tenants. However, the statement notes that both KDFN citizens and others “have periodically abandoned junk (mainly old cars)” on the lot, and that “unknown persons also put up a couple of structures to use to keep warm while working on cars.”

KDFN began clearing the lot in 2010 and about three years later, “established a draft conceptual development plan … which includes opportunities for commercial and light industrial activities.” That plan requires KDFN to clear the lot and “remediate any environmental contamination,” and as part of that effort for the 2017 season, KDFN notified residents to clear personal property from the lot by June 26.

In the statement of claim, KDFN said it’s been advising Smith and his family since at least 2013 that “his use of Lot 226 was unauthorized.” On top of verbal warnings, the First Nation said it has hand-delivered two letters to Smith in 2015 and 2016 telling him to stop using the lot, and also served him with a notice in January of this year asking him to “remove his personal effects,” including the structure.

However, despite being advised on “several occasions” that Smith would be vacating, including once by his mother, the First Nation said in the statement of claim that Smith hasn’t actually removed his belongings and has, in fact, “refused or neglected” to when directly asked to do so.

“Mr. Smith’s unauthorized use of Lot 226 constitutes a continuing trespassing, in that it interferes with the KDFN’s possession of land and is causing the KDFN to suffer damage and loss, including by impeding its ability to clean up and remediate Lot 226 for the benefit of its citizens,” the statement reads.

KDFN is asking for the court to declare Smith is trespassing on the lot and to put a permanent order in place to keep him from trespassing again. It’s also asking the court to order Smith to remove “any personal property from Lot 226, including the structure and its contents, within one week of the court’s order,” and, if he fails to do so, to allow KDFN to be “at liberty to dispose of any and all personal property” of Smith’s “without providing any notice of compensation to Mr. Smith.”

The allegations have not been proven in court. An initial hearing is scheduled to take place in Whitehorse Aug. 23.

Contact Jackie Hong at jackie.hong@yukon-news.com

Kwanlin Dun First NationReal estateYukon courts

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