Court rules on three NWT cabin challenges

The NWT Supreme Court issued decisions in three cases on Wednesday in which the territorial government sought to remove unauthorized cabins from public land.

In one of those cases, the court rejected the government’s request and sent the matter back to the minister of the Department of Environment and Climate Change to reconsider.

In the other two cases, the court sided with the territory and ordered the cabin owners to leave.

The cases stem from the NWT government’s Unauthorized Occupancy Project, a campaign to crack down on squatters with cabins on public land.

Announcing the initiative in early 2021, the territorial government said there were more than 700 cabins across the NWT that may be unauthorized. It said it planned to begin tackling the issue by focusing on cabins in the North Slave region.

The recent court cases indicate the process to remove illegal cabins can be lengthy.

In each case, government inspector Clinton Ambrose conducted multiple inspections of the cabin sites and issued notices over a period of years. Those notices advised cabin owners to submit information supporting their occupancy of public land and then, after they failed to do so, instructed them to vacate the sites and remove any structures.

Ambrose then recommended that the environment minister apply for the court to enforce orders to remove the cabins, which he did in each case. Court hearings were subsequently held on those applications.

Minister had inaccurate information

Thomas Van Dam is one of the cabin owners whom the NWT government took to court.

In 2015, he purchased a cabin on Banting Lake that had been built around 2005.

While the previous owner of the cabin had applied for a lease for the property before selling it to Van Dam, the territorial government denied that request, saying it was reviewing recreational leasing and would not issue further leases while it was developing a framework.

Inspector Ambrose posted an initial notice on Van Dam’s cabin in February 2021 and a second notice, asking him to tear down the cabin and vacate the site within 30 days, in January 2022.

Ambrose then recommended that the environment minister apply for a court summons. Part of the information he provided to the minister to make that decision stated Van Dam’s cabin did not meet evaluation criteria.

Van Dam, however, argued his cabin did meet criteria published by the department and pointed out that previous inspections of the site had not revealed any concerns.

He added that the territory had said it would evaluate cabins built before April 2014 – when responsibility for public lands was transferred from the federal to NWT government – on a case-by-case basis to determine possibility for tenure.

While that would not guarantee Van Dam a lease for his cabin, it could provide a pathway for him to get a lease after consultation with Indigenous governments and organizations.

In a decision on Wednesday, Justice Sheila MacPherson agreed with Van Dam. She sent the matter back to the minister to reconsider the decision, which could include the territory reapplying for a court order to remove the cabin.

Court orders cabin owner to vacate

In another case where a cabin owner did not have a lease, MacPherson sided with the NWT government.

Matt Pond and his family built a cabin north of Narcisse Lake in the 1990s.

Pond argued he has Indigenous rights to occupy the cabin. He was born in Yellowknife but is a member of the Qalipu Mi’kmaq First Nation based in Newfoundland and Labrador.

While Pond acknowledged his status with the Qalipu Mi’kmaq First Nation does not, in itself, give him occupancy rights in the NWT, he said he has applied for a band transfer to join the Yellowknives Dene First Nation.

The NWT government said there is no evidence that the Qalipu Mi’kmaq First Nation has any established treaty rights or historically used lands in the territory.

MacPherson rejected Pond’s argument, saying there is a geographic element to Indigenous occupancy rights. She said the possibility of Pond transferring his band membership to the Yellowknives Dene First Nation is “speculative and hypothetical.”

“This speculative possibility cannot form the basis to deny the commissioner the right to manage territorial lands responsibly,” she wrote.

“I acknowledge that the effect on the respondent of an order to remove his family cabin is significant. However, I am also cognizant of the commissioner’s obligations to manage territorial lands in a responsible manner and that unauthorized occupancy is a longstanding land management issue across the Northwest Territories.”

MacPherson ordered Pond to vacate the site without delay.

A prevalent problem

MacPherson issued the same order for Frank Walsh, who has owned a cabin on Narcisse Lake since around 2007.

MacPherson found that Walsh had been told the placement of a wharf on the site made it ineligible for a lease. She said there was no evidence Walsh took steps to obtain a lease or remove the wharf to ensure the site met eligibility criteria.

Walsh said he used the cabin primarily in the winter and it would be “next to impossible” to remove the wharf from the ice.

Walsh further argued he had a legal right to the property through adverse possession, also known as squatter’s rights. He said structures had been on the site for more than 20 years with the knowledge and acquiescence of government officials.

MacPherson rejected that argument, saying Walsh had acknowledged the government’s legal rights to the land.

Finally, Walsh argued he was being treated unfairly as other structures near his cabin are also non-compliant.

“The fact that there may be other structures which are also non-compliant does not cure the respondent’s lack of lawful authority to occupy the site,” MacPherson concluded.

“It, perhaps, may be an indication of the prevalence of the problem and the challenges facing the commissioner in addressing the issue.”