by Bill Jackson - The Regional
December 16, 2009
Haldimand's solicitor Woodward McKaig confirmed Monday that the municipality has no legal recourse to deal with illegal smoke shacks situated on provincially owned land.
The county has looked at ways to get rid of smoke shacks through a combination of charges and the enforcement of zoning bylaws.
McKaig appeared before council on Monday to explain that county's hands are tied when it comes to those on provincial property.
"It is our firm's opinion that you can't do anything," he said.
The Planning Act and Building Code Act are both provincial statutes, he explained.
"The law is very clear that unless a statute says that it binds the Crown, it doesn't. In this case the statutes do not say that and we're trying to enforce the provincial statutes against the province, and it just doesn't work."
The same legal principles apply to the provincially-owned Douglas Creek Estates property, McKaig said.
"I don't blame everyone for not wanting to hear that... This is an important issue obviously and we've looked at every way possible to get around it and can't."
The courts would never grant leave to appeal because such provincial statutes are considered trite law, he told The Regional News.
"They'd look at me like I had two heads if I was in front of them arguing it."
Federal jurisdiction over smoke shacks on provincially owned land is also very limited because property and civil rights are within the purview of the province, he reiterated.
Mayor Marie Trainer stressed that the county has been going through the bylaw process to have illegal smoke shacks removed.
Legal proceedings commenced against private landowners seem to have worked.
One smoke shack on a residential property of Highway 6 was removed a few weeks ago by a native proprietor and another smoke shack that was placed on land next to the Mohawk Garden Market near Hagersville is no longer operational.
Two other smoke shacks on provincially owned land off Argyle Street and the Highway 6 bypass remain standing, selling contraband products.
McKaig conceded that any decision to forcibly remove them will likely entail a political process involving the province.
Coun. Buck Sloat pointed out that the province is only charging people who buy such products, but isn't doing anything to shut the door on vendors.
The federal government enforces laws under the Tobacco Act that regulates the manufacturing, sale, labelling and promotion of tobacco products. It should be made aware that the province condones the sale of illegal tobacco on provincially owned property, Sloat said.
Coun. Tony Dalimonte pointed out that there are also numerous smoke shacks off Haldimand Road 20 at the west end of Hagersville leading onto the New Credit and the Six Nations Indian Reserves.
Council unanimously passed a motion tabled by Dalimonte and Coun. Leroy Bartlett directing staff to determine if any of these smoke shacks are in contravention of municipal regulations.