An undated photo from the Saskpower's website shows the EB Campbell Dam. A judge has dismissed an attempt to end the Corporation's license to operate the dam. (submitted)

By Susan McNeil

Nipawin dams

Judge sides with Crown in lawsuits over Nipawin dams

Apr 14, 2023 | 2:00 PM

An attempt by Cumberland House Cree Nation, and another band in Manitoba, to end SaskPower’s license to operate the Nipawin and EB Campbell dams has ended in failure.

In a recently released ruling, a Regina Court of King’s Bench judge denied the applications of CHCN and Opaskwayak Cree Nation (near The Pas, Man.,) to quash both licenses.

Both bands had based their claims on what they said was a lack of sufficient consultation by SaskPower and the Water Security Agency.

In 2014, SaskPower applied for renewed operating licenses for both dams; one for the EB Campbell Dam and another for the Nipawin Dam several years later.

The WSA decided that the applications triggered a low level duty to consult with both bands and that the impact of the extensions would be minor in nature but would extend for a long period of time.

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They did not feel that any consultation should include past impacts brought about by building the dams or their past operations.

“WSA can only consider adverse impacts to Treaty or Aboriginal rights and traditional uses as a result of new impacts to lands and resources from the Licencing date onward, and as a result of the future operation of these hydroelectric facilities as they exist now,” said the WSA in its notification letter.

The WSA based its assessment in part on the Consultation Framework and on case law, which determined that there is no duty to consult about past wrongs or continuing breaches unless they have new or novel impacts.

In the case of the twin dams near Nipawin, neither license extension was shown to change the situation or create any new results.

According to the written decision of J. Krogan, consultation happened for about three years and ended in mid-October of 2018 with the issuance of licenses for both dams.

Along with letters between the WSA and Saskpower and both indigenous governments, meetings were held in Cumberland House and Prince Albert.

Krogan ruled that, “while there may be a range of interpretations surrounding the Regulations, the WSA’s interpretation and subsequent decision to grant a licence to SaskPower to continue to operate EBC is reasonable.”

The application was dismissed as was OCN’s somewhat similar application.

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susan.mcneil@pattisonmedia.com