Reserve never created, sides hope to argue

Province, Saskpower say First Nation And flood Area located on Crown land

The provincial government and Saskpower are seeking the right to argue in court that a Peter Ballantyne Cree Nation reserve near Southend was never designated as a reserve and is in fact provincial Crown land.

The argument, if allowed, would likely be used with the aim of eliminating an Appeal Court judgment that found the government and Saskpower were trespassing when they allowed a dam to flood parts of the land.

That position is “vehemently” opposed by lawyers representing Peter Ballantyne Cree Nation and the federal government, who contend — albeit for different reasons — that the issue is decided and the argument cannot be advanced.

The latest chapter in a 14-year legal battle over the Whitesand Dam on the Reindeer River and 600 acres of flooded land ended on Thursday when Saskatoon Court of Queen’s Bench Judge Shawn Smith reserved his decision.

The initial lawsuit, filed in 2004, is rooted in decisions made 80 years ago, when plans were drawn up for the dam, which is about 11 kilometres from the land, and a second hydroelectric facility.

The dam was owned by the Churchill River Power Co. until 1981, when the facility was sold to the provincial government and transferred to the Crown corporation, which took over operating it three years later.

The case hinges on the flooded land, known as the Southend Reserve, and Peter Ballantyne Cree Nation members’ historic use of the area for hunting, fishing, trapping and travel, and the fact the band has never surrendered it.

Two years ago, the Saskatchewan Court of Appeal concluded that Saskpower and the province were committing a “continuous trespass” against the First Nation by flooding the land.

Because the original judge had not considered possible defences put forward, the Appeal Court sent the matter, which includes the First Nation’s request to repossess the land, back to Queen’s Bench.

Three months ago, the province and Saskpower applied to the court to amend their earlier statement of defence to argue that the land was, unlike other reserves, transferred to the province in 1930 as part of the Natural Resources Transfer Agreement.

Thursday’s hearing was not intended to weigh the merits of any argument; instead, it was aimed at determining whether the province and Saskpower have the right to bring forward their new position.

Canadian court rules make clear that compelling evidence must be advanced to prevent an argument from being heard.

Because it was not on a list of land transfers, the 1981 order in council declaring it a reserve is unconstitutional, and the dam and nearby hydroelectric station can continue operating, government lawyer Mitch Mcadam told court on Thursday.

“Saskatchewan has reserved the right to argue the reserve creation issue since Day 1,” Mcadam continued, adding that the agreed statement of facts from the original lawsuit does not apply to the latest matter.

Lawyers representing the federal government said the province should not be allowed to make the argument because the land in question was “surveyed and selected” with the intention of creating a reserve in 1929.

Thomas Berger, who represents the First Nation, argued that the application should be quashed because the Appeal Court judgment was based on the existence of a reserve, a fact that cannot now be re-litigated.

Berger noted Saskatchewan acknowledged the reserve’s existence in the 1992 Treaty Land Entitlement Framework Agreement.

“Not until these (applications) were filed have they ever placed on the record the proposition that this isn’t a reserve,” Berger told court.

A decision in the case is expected in mid- September.