The nearly 20-year dispute between the Peter Ballantyne Cree Nation and SaskPower over the Whitesand Dam near Southend in Saskatchewan's northeast will find itself back in court again.
The Peter Ballantyne Cree Nation sued Ottawa, SaskPower and the government of Saskatchewan for infringing on its members' treaty right to hunt, because the dam's construction resulted in a loss of roughly 600 acres of land due to flooding.
The Whitesand Dam regulates the water flow between Reindeer Lake and Reindeer River and was constructed in the 1940s.
In September, the Saskatchewan Court of Appeal ruled in favour of the Cree Nation and sent the matter back to the Court of Queen's Bench.
The province and the Crown Corporation argued a historical agreement, the Natural Resources Transfer Act (NRTA), allowed for that to happen because the area in question was not a reserve — an argument the courts upheld in 2019.
But the Court of Appeal found the hearing judge erred in concluding the community of Southend was not a reserve, thanks in part to the fact the status was already settled.
"Their position on this issue is contrary to the first appeal decision, which was dependent on the proposition that Southend is a reserve," the written decision said.
"These defendants therefore cannot relitigate this issue. Further, their position is contrary to agreements, including a constitutional amendment that released Saskatchewan from its obligations under the NRTA, which were premised on Southend being a reserve."
The appeals court judges also found the hearing judge erred by stating Saskatchewan and SaskPower had defences to Peter Ballantyne Cree Nation's claim to the land based on consent issued in 1939.
Due to that error the appeals court judges asked that summary judgment in favour of Saskatchewan and SaskPower be set aside.
"In argument, Saskatchewan and SaskPower pointed out that there were other pleaded defences that had not been addressed in prior decisions," the decision, signed by three judges, said.
"[The Cree Nation] conceded that there may be a legitimate dispute as to whether these defences 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."