First Nation wants appeal court to nix argument
Ruling allowed province and Saskpower to question ownership of reserve land
Lawyers representing a Saskatchewan First Nation want to appeal a decision that allows the provincial government and Saskpower to argue that 600 acres of flooded land near Southend was never properly designated as a reserve and is in fact Crown land.
Court records show that Peter Ballantyne Cree Nation’s counsel, Thomas Berger, filed a motion on Oct. 2 to obtain leave to appeal Court of Queen’s Bench Judge Shawn Smith’s decision allowing the argument. The appellate court is scheduled to consider the request on Oct. 24.
In an emailed statement, Berger said the province and Saskpower are attempting to argue that — 89 years after the land was set aside for the First Nation and 37 years after that decision was confirmed — it was never a reserve.
“We will argue that after 89 years, it is too late to challenge (Peter Ballantyne Cree Nation’s) right to their land and, after 37 years, it is too late to challenge the order in council (that confirmed the transfer),” Berger said in the statement.
Government spokesman Drew Wilby said it would be inappropriate to comment because the matter remains before the courts.
Peter Ballantyne Cree Nation’s request to appeal Smith’s decision is the latest development in a 14-year-old lawsuit between one of Saskatchewan’s largest First Nations and the provincial government over the land, which has been under water for decades.
The initial lawsuit filed by Ron Michel, who was then chief of the First Nation, argued that members of the First Nation used the land, called the Southend Reserve, for hunting, fishing, trapping and travel — and never surrendered their claim on it.
The Saskatchewan Court of Appeal ruled two years ago that the province and Saskpower were committing a “continuous trespass” against the First Nation by allowing the Whitesand Dam on the Reindeer River, which was completed in 1943, to flood the land.
Because the original judge did not consider possible defences, however, the appellate court sent the matter — which includes the First Nation’s request to repossess the land — back to the lower Court of Queen’s Bench, where it will be decided. The hearing in August involved a request by the province and Saskpower to amend their earlier statement of defence to argue the land was, unlike other reserves, transferred to the province 80 years ago in the Natural Resources Transfer Agreement.
Lawyers for the federal government and Berger “vehemently ” opposed the government’s request, though for different reasons. Berger argued it had no merit because the land was set aside by a surveyor almost nine decades ago, and subsequently confirmed in 1982.
Berger went on to argue that the provincial government recognized it as a reserve in the 1992 Treaty Land Entitlement Framework.
In his decision — which sets the stage for the province and Saskpower to attempt to overturn the ruling that they trespassed by allowing the dam to flood the land — Smith said it “serves the interest of the parties to fully canvass any outstanding issues.”
“None of the above should be taken to suggest that Saskatchewan or (Saskpower) are entitled to succeed on the grounds advanced by their proposed amendment. Rather, it is to say only that they are entitled to make the arguments before (a judge),” Smith wrote.