Court says province, Saskpower can argue flooded land was never designated as reserve
The Saskatchewan government and Saskpower have won the right to argue in court that a Peter Ballantyne Cree Nation reserve near Southend was never properly designated as a reserve, and is in fact provincial Crown land.
Court of Queen’s Bench Judge Shawn Smith’s ruling sets the stage for the province and Crown corporation to use the argument to attempt to overturn an earlier ruling that they trespassed by allowing the Whitesand Dam to flood 600 acres of the land.
“None of the above should be taken to suggest that Saskatchewan or (Saskpower) are entitled to succeed on the grounds advanced by their proposed amendments,” Smith wrote in the decision handed down Wednesday, five weeks after the parties made their submissions.
“Rather, it is to say only that they are entitled to make the arguments before the summary judgment or trial judge,” Smith wrote in the decision, the latest chapter in a 14-year legal battle between the province and the First Nation over the land.
In an emailed statement, Ministry of Justice spokesman Drew Wilby said the province is pleased with the decision, and believes it “is important for the court to consider all of the outstanding issues with respect to these lands in this litigation.”
Thomas Berger, the lawyer representing Peter Ballantyne Cree Nation, did not immediately provide comment on Thursday.
The initial lawsuit, filed by Peter Ballantyne Cree Nation Chief Ron Michel, centres on the flooded land, called the Southend Reserve, and Peter Ballantyne Cree Nation members’ use of it for hunting, fishing, trapping and travel — as well as their claim it was never surrendered.
The Saskatchewan Court of Appeal ruled two years ago that the province and Saskpower were committing a “continuous trespass” against one of the largest First Nations in Saskatchewan by allowing the Whitesand Dam to flood the land.
Because the original judge had not considered possible defences put forward, however, the appeal 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 stemmed from 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 that position, albeit for different reasons.
Berger argued it had no merit because the provincial government recognized the land as a reserve in the 1992 Treaty Land Entitlement Framework.
“Not until these (applications) were filed have they ever placed on the record the proposition that this isn’t a reserve,” Berger told court.
Canadian court rules make clear that compelling evidence must be advanced to prevent an argument from being heard in court; it “serves the interest of the parties to fully canvass any outstanding issues,” Smith wrote in his decision.
“It is not consonant with the interests of justice to artificially restrict debate.”