A nearly two decades-long legal battle is pressing on without its most high-profile lawyer.
The Saskatchewan Court of Appeal upheld Peter Ballantyne Cree Nation and Canada's appeal against the province and SaskPower, which argued that 600 flooded acres in Southend counts as reserve land.
The results were "bittersweet" with the loss of prominent British Columbia-based Indigenous rights lawyer Thomas Berger, who represented PBCN and died at 88 in April, said Monique Pongracic-Speier, who also serves as the First Nation's counsel.
The latest chapter for the 17-year-old legal case will send the parties back to Court of Queen's Bench. The court will hear the Saskatchewan government and SaskPower's unaddressed defences over the Whitesand Dam on the Reindeer River and the 600 acres of flooded land that PBCN argues is being trespassed upon.
The land is flooded because the Churchill River Power Company built a dam there in 1942, then sold it to the province in 1981 and transferred the facility to the Crown corporation.
PBCN filed the initial lawsuit over the alleged trespass on the flooded land in 2004; in "the years since, (it) has followed a tortuous path," Justice Robert Leurer wrote in his decision on the recent appeal.
In meetings last December, the Saskatchewan government and SaskPower defended Justice Dan Konkin’s 2019 decision that the land was never properly designated as reserve land. That same ruling tossed out PBCN's trespassing claim.
If the land is not a reserve, the band has no claim to trespass, SaskPower's counsel wrote in its factum submitted for the appeal.
PBCN argued that it is reserve land. The band used the actions of a surveyor almost a century ago as evidence, saying steps had been taken towards the land becoming a reserve. It also drew evidence from a 1981 federal government cabinet order and the land’s inclusion in the 1992 Saskatchewan Treaty Land Entitlement Framework Agreement
The province argued that the decades-old survey was flawed and incomplete. It also said the government never confirmed it as a reserve, and that the land passed to Saskatchewan under the Natural Resources Transfer Agreement in 1930.
Justice Leurer nonetheless found that Justice Konkin erred in his decision, siding with PBCN. He also tossed out another part of the Konkin decision by finding that the 1939 licence Canada gave to the Churchill River Power Company expired in 1981. That suggests there is a "continuing trespass," Pongracic-Speier said.
As the case heads back to Queen's Bench, issues around liability and remedy still need to be sorted out, but "we'll hopefully position things for a resolution of the matter," Pongracic-Speier said.
"It's difficult to do it without (Berger). It is a pleasure to be able to hopefully see the completion of what he started."
Nick Pearce, Local Journalism Initiative Reporter, The StarPhoenix