Letter: Phoenix site dangerous, shouldn’t be explored

Mr. Schlichting has no valid reason to be there and has been advised not to trespass on lands within the boundary, writes Ellen Clements.

Re: Map doesn’t show what Nadina owns” Frank Schlichting April 27, 2016.

What Mr. Schlichting appears to be stating is that we have misrepresented ownership of the property and that we do not have the right to request he refrain from entering onto and into our Crown granted lands.

He states our maps are incorrect in that many of the properties we claim to own have reverted to the Crown. Question—on what factual evidence does he make these statements? It does not suffice to state the land is not owned without proof.  LTSA (Land Title and Survey Authority) title shows Kettle River Resources or its associates/assigns as owners.

We provided you a map outlining the private property yet you continue to trespass and in a court of law, we would provide proof.  Mr. Schlichting has no valid reason to be there and has been advised not to trespass on lands within the boundary—on top of or below surface. Ownership of land remains in Land Titles Office to be legally accurate, not the assessment office.

The site is dangerous and should not be visited or explored. There is great risk by defying the request to keep out of the old mine workings and jeopardizing others invited who attend the site at one’s request. Fences have disappeared over the years and signage is removed as quickly as erected. Our map suffices to provide notice, under The Trespass Act, of the property boundaries.

The Trespass Act—exerts and or interpreted by legal counsel, there are two aspects to the act:  “In a trial of a trespass claim, once the plaintiff shows that the defendant has trespassed, it is up to the defendant to show that his interference took place without negligence or intent.”

“Where the defendant’s actions were fraudulent, willful or so wholly disrespectful of the property owner’s rights as to be an affront to the reasonable person, the court can award punitive damages. The cases talk about “wanton and defiant conduct and insults”; “action going beyond inadvertence, mistake, oversight, or misunderstanding”; “arrogance and unconcern”; “acting callously.”

Punitive damages can be significant compared with the usual amount of damages available in a case of trespass. Punitive damages can be $1,000, $5,000 or in one case $25,000—a figure that in the mind of the judge is a sufficient punishment for the callousness of the trespasser.

“The Trespass Act requires that property be posted according to the Act. The tort of trespass does not require posting, although it does require some act of possession sufficient to alert the trespasser that he might be on land in someone else’s exclusive possession or ownership.”

Penalty or Remedy. “The Trespass Act penalty is a fine or imprisonment imposed by the provincial government through the courts. Any fine is paid to the government. If one sues another in trespass, the remedies available are financial compensation for the damage suffered, and possibly punitive damages and an injunction.”

Procedure. “The Trespass Act is a criminal-like procedure where the Crown prosecutors or police pursue the case against a person accused of trespass. An individual claims against another for the tort of trespass by starting a lawsuit, with all its inherent frustrations, delays, formal proof requirements, and cost.”

Legislation under the Mines Act and Health and Safety Codes is another matter and if necessary will be relied upon.

– Ellen Clements, Kettle River Resources Ltd.

 

 

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