Judge sides with province, rules flooded land was never a reserve

SASKATOON A Saskatchewan judge has sided with the provincial government and Saskpower, ruling that 600 acres of flooded land near Southend was never properly designated as a reserve.

Saskatoon Court of Queen’s Bench Justice Dan Konkin’s 66page written decision, which was delivered on Dec. 23 and overturns a previous decision, is the latest chapter in a 15-year legal battle over the land at the southern tip of Reindeer Lake, about 520 kilometres northeast of Saskatoon.

The judge also dismissed a First Nation’s claim that the province and Saskpower were trespassing by allowing the land to remain underwater.

The original claim was filed in 2004 by Ron Michel, then chief of the Peter Ballantyne Cree Nation (PBCN). In the claim, it was alleged that the province and Saskpower have been in “continuous trespass” since the Whitesand Dam on the Reindeer River was allowed to flood the land 77 years ago.

The claim also included a request from the First Nation to repossess the land.

Three years ago, the Saskatchewan Court of Appeal ruled that the province and Saskpower were, in fact, trespassing but ultimately sent the matter back to Court of Queen’s Bench, saying the original judge had not considered possible defences that could be put forward.

Konkin in late May heard the case, which relied on a “wealth” of historical documents and contemporaneous affidavits rather than testimony from witnesses.

PBCN argued the land was selected and surveyed as a reserve in 1929, a decision confirmed by a 1981 federal government cabinet order. The province and Saskpower contended the initial survey was flawed and the land was given to the province in the 1930 Natural Resources Transfer Agreement.

In his decision, Konkin found that not only was the initial survey both “flawed and incomplete,” but the surveyor had been instructed to select land for the Barren Lands band’s reserve and had “no authority” to select land for PBCN, which is under a different treaty than the Barren Lands band.

“I find that the lands were never excluded from transfer to the province pursuant to (the Natural Resources Transfer Agreement). As those lands were transferred to the province … any attempt by Canada to establish a reserve in 1981 without the approval of Saskatchewan was invalid,” Konkin wrote.

Konkin also found that the province did not “fail to observe the honour of the Crown” in its dealings with PBCN, which the First Nation argued would have been grounds for the court to dismiss the province’s argument that the reserve was not properly created in 1929.

Konkin found that the federal government consented, in 1939, to the construction and operation of the dam, and any potential flooding in perpetuity. Canada had argued that its original consent could not be transferred to Saskpower from the dam’s original owner without consultations.

PBCN has 30 days to appeal Konkin’s decision to the Saskatchewan Court of Appeal. Reached by phone, PBCN Chief Peter Beatty said he was not surprised by the court’s decision, but that the First Nation plans to file an appeal as the decision would have significant implications if it is allowed to stand or is upheld by a higher court.

In a brief emailed statement, Saskpower spokesman Cole Goertz said the Crown corporation is reviewing Konkin’s decision and has “no further comment at this time.”

Government spokesman Matthew Glover said the Ministry of Justice is also reviewing the decision.