The nearly 20-year-old dispute between Cree Nation Peter Ballantyne and SaskPower over the Whitesand Dam near Southend in northeast Saskatchewan will once again be in court.
The Peter Ballantyne Cree Nation sued Ottawa, SaskPower and the Government of Saskatchewan for violating the hunting rights of its members, because construction of the dam resulted in the loss of approximately 600 acres of land due to flooding.
The Whitesand Dam regulates the flow of water between Reindeer Lake and the Reindeer River and was built in the 1940s.
In September, the Saskatchewan Court of Appeal ruled in favor of the Cree Nation and remitted the matter to the Court of Queen’s Bench.
The province and the state-owned company argued that a landmark agreement, the Natural Resources Transfer Act (NRTA), allowed this to happen because the area in question was not a reserve – an argument the courts confirmed in 2019.
But the Court of Appeal found that the hearing judge erred in concluding that the community of Southend was not a reserve, in part because the statute was already settled.
“Their position on this matter is contrary to the decision of the first appeal, which depended on the proposition that Southend is a reservation,” the written decision reads.
“These defendants therefore cannot challenge this issue. Further, their position is contrary to the agreements, including a constitutional amendment that released Saskatchewan from its obligations under the NRTA, which were based on the fact that Southend was a reserve. “
The court of appeal judges also found that the hearing judge erred in stating that Saskatchewan and SaskPower had defenses against the Peter Ballantyne Cree Nation claim to the lands on the basis of a consent issued in 1939.
Because of this error, the court of appeal judges requested that the summary judgment in favor of Saskatchewan and SaskPower be set aside.
“During their oral argument, Saskatchewan and SaskPower pointed out that there were other defenses raised that had not been addressed in previous decisions,” said the decision, signed by three justices.
“[The Cree Nation] conceded that there may be a legitimate dispute as to whether these defenses apply. On this basis [the Cree Nation] agreed that it should be left to the Court of Queen’s Bench to determine what issues, in addition to remedy, are outstanding.