A Yukon deputy justice has ordered the former owner of the Tagish dog kennel to vacate territorial land she is using in the Tarfu Creek area by March 1.

The territorial Department of Energy, Mines and Resources (EMR) had petitioned the Yukon Supreme Court for the order. Deputy Justice Bryan Mahoney issued his oral decision this morning.

Shelley Cuthbert set up her dog rescue operation on the land in question in 2018. It’s located 1.2 kilometres off the Atlin Road. She relocated there after losing a nuisance lawsuit brought forward by her Tagish neighbours, and the subsequent appeal.

A permanent injunction was imposed on the property, under which she could only have two dogs as pets. She argued this made the property useless to her.

EMR argued that Cuthbert’s use of the Atlin Road land was negatively impacting other people’s ability to enjoy it. The noise generated by the dogs and smell of urine was disturbing others in the area.

EMR also argued some of the dogs are a danger, should the animals escape Cuthbert’s enclosures or someone wanders inside.

The department said she is not camping on the site, but rather occupying or squatting in the area. It points to all her tents, fencing and camper as proof.

Cuthbert countered that she is using the site while she looks for a more appropriate location to move to.

She maintained that she is camping, adding she can do so on territorial land for up to 400 days. She said her plan was to move away before those days are up.

She claims to be homeless, and argued she has a right to shelter as per Section 7 of the Canadian Charter of Rights and Freedoms.

Mahoney, however, did not feel that section of the Charter applied in this case.

“This is not a Charter seven case,” he said.

He explained that Cuthbert herself has said she walked away from her Tagish property because of the permanent injunction. He said this means she lost her home by choice.

Mahoney rejected Cuthbert’s evidence that she was never told to apply for a land use permit.

He explained that, in Cuthbert’s own evidence, she stated she went to apply for a permit but was told not to because it would not be approved.

The deputy justice said the Yukon Lands Act is used to regulate land use. It is meant to ensure people can enjoy territorial land. No one is challenging the purpose of the legislation, he pointed out.

As for the issue of camping or occupying, Mahoney said there is no legislation that properly defines camping. He said the court will have to look at what the individual in question is doing and how he or she is behaving.

He did not believe Cuthbert is camping. He clarified that this is because of the multiple tents, fencing, wood stove, water tank and camper in the area.

“She does not fit the definition of camping,” he ruled.

He felt she is occupying the land or squatting without permission. He reasoned that she quickly went there to operate her business after she abandoned her Tagish property.

He accepted that she thought she could be there for 400 days.

Mahoney said he was granting the petition and ordering Cuthbert to vacate the land in question. She will have to remove herself, the dogs and every structure she has put up in the area.

Given her circumstances, he said he is willing to give her until March 1 to comply.

If she does not follow this order, she could be forcibly removed. He felt this should allow her time to find another location through the proper channels.

Mahoney understood that she is struggling, but explained that the land still needs to be protected. He added Cuthbert is responsible for following both the law and this court order.