Sask. Court of Appeal hears long-running dispute over 600 flooded acres

·2 min read

Lawyers fought the latest round of a 16-year legal battle by video conference in the province’s top court on Tuesday and Wednesday.

The long-running dispute between Peter Ballantyne Cree Nation (PBCN) and the Saskatchewan government aims to find whether 600 flooded acres of land near Southend is a reserve.

The debate centres on whether to uphold Saskatoon Court of Queen’s Bench Justice Dan Konkin’s 2019 decision finding the land was never properly designated as a reserve. That decision also tossed out PBCN’s claim that the flooding meant the province and SaskPower were trespassing on the land.

This week, PBCN and the federal government argued it is a reserve — a finding that would throw out the lower court’s decision and help the First Nation’s legal counsel press for compensation based off the trespassing claim.

“The important thing here is the ownership of (roughly) 10,000 acres of land is at stake,” said Thomas Berger, a prominent British Columbia lawyer who has long served as PBCN’s counsel on the case.

The Saskatchewan government and SaskPower argued to uphold the 2019 decision, saying the reserve was never properly designated. The Ministry of Justice declined to comment on a matter before the courts.

One part of the dispute centres on a surveyor’s actions almost a century ago. When the surveyor was tasked with finding Barren Lands band members at Southend in 1929, he found members of PBCN.

PBCN argued he took steps to create a reserve there. A 1981 federal government cabinet order and the land’s inclusion in the 1992 Saskatchewan Treaty Land Entitlement Framework Agreement confirmed that designation, PBCN’s factum said.

In an interview, Berger said the province’s position on its status was a reversal because “25 years later, they said, ‘we made a mistake.’ ”

Saskatchewan legal counsel Mitch McAdam said that’s not necessarily the case. In a factum, he wrote that the surveyor’s “instructions were crystal clear — to survey a reserve at Southend for Barren Lands — and he carried those instructions out ‘to a T.’ ”

However, McAdam said the survey was flawed and incomplete. He said the government also never confirmed it as a reserve, meaning the land passed to Saskatchewan under the Natural Resources Transfer Agreement in 1930.

That brings into question who owns the land that Whitesand Dam floods as it controls Reindeer River’s flow into the nearby Island Falls hydroelectric power station.

Berger says his clients are owed their “fair share” of compensation for the flooding, but that partly depends on how the court sides on the question of the land’s reserve status.

“If Peter Ballantyne has no interest in the (land), in other words, the (land) is not Indian reserve land, (and) Peter Ballantyne has no claim in trespass,” the SaskPower factum noted.

Berger expects to hear the top court’s decision sometime in 2021.

None

Nick Pearce, Local Journalism Initiative Reporter, The StarPhoenix