A Court of Appeal ruling in Regina on Wednesday breathed life into the Peter Ballantyne Cree Nation’s longstanding lawsuit against the province and SaskPower over flooding of lands at the south end of Reindeer Lake. The case will now be returned to the Court of Queen’s Bench.
Some of Southend is flooded because of the Whitesand Dam that was constructed in 1942. The dam is now owned by the province and operated by SaskPower, a Saskatchewan Crown Corporation.
Peter Ballantyne Cree Nation (PBCN) sued Saskatchewan, SaskPower and Canada for trespassing in 2004 because of the flooding. That set in motion a series of judgments and appeals.
Court of Appeal for Saskatchewan Justice Robert W. Leurer wrote in his ruling that the lawsuit has “followed a tortuous path” and can now go back to the Court of Queen’s Bench for a decision.
“This is truly a win for the Nation,” PBCN Chief and Council said in a written announcement Wednesday.
SaskPower is making money from electricity generated by the dam and the First Nation wants a share of the profits from those resources to improve living conditions.
Chief Karen Bird said that she is “delighted” at the hard-fought win after so many years in court.
“I want our people to benefit from the use of our land in generating power for Saskatchewan,” Bird Said.
“They made millions of dollars while our people live in third world conditions. I hope that soon our people will benefit from this.”
In 2014 all claims against the defendants were dismissed — but in 2016 the court held that PBCN could continue its trespass claim against the province and SaskPower.
SaskPower and the province centred their defence around the status of Southend as a reserve, contrary to a 1981 federal Order in Council determination that 10,425.5 acres of land, including the flooded portion central to the dispute, is a reserve under Treaty 6.
The defendants argued that all of Southend is owned by Saskatchewan and so PBCN cannot accuse them of trespass.
That’s because they say Canada had no authority to declare Southend a reserve because these lands had passed to the province in 1930 through the Natural Resources Transfer Agreement (NRTA).
In 2019 a Queen’s Bench judge sitting in Chambers found that Southend had indeed been transferred to Saskatchewan and so is owned by the province. Southend could not have been confirmed by Canada as a reserve, he said, and dismissed the case.
Leurer wrote that the Chambers judge erred in his 2019 conclusion that PBCN could not sustain a claim in trespass because Southend is ‘not a reserve’ among other mistakes.
“In my respectful view, the Chambers judge erred in granting judgment in favour of Saskatchewan and SaskPower. I have concluded that Saskatchewan and SaskPower cannot call into question Southend’s status as a reserve,” Leurer wrote.
“Further, their position is contrary to agreements, including a constitutional amendment that released Saskatchewan from its obligations under the NRTA, which were premised on Southend being a reserve.”