(File photo/paNOW Staff)

By Nigel Maxwell

Court proceedings

PBCN wins appeal decision, Sask Power lawsuit heads back to court

Sep 27, 2021 | 6:00 PM

The Chief of Peter Ballantyne Cree Nation (PBCN) says a long awaited decision last week by the Saskatchewan Court of Appeal (SCOA), represents a win for the nation.

The SCOA has effectively agreed that the PBCN’s lawsuit with the provincial government and Sask Power concerning the construction of the Whitesand Dam and subsequent flooded lands south of Reindeer Lake deserves a second chance to be heard.

“This is something that our community members have been waiting and wanting for 20-plus years and with this pandemic we are losing our Elders and we are losing our band members,” Chief Karen Bird told paNOW.

The lawsuit, which dates back almost 17 years, claims the dam was built on traditional lands which were intended for hunting, fishing and trapping. Bird said PBCN members have a right to benefit from the use of their land for generating power for Saskatchewan.

“They make millions of dollars while our people live in third-world conditions. I have hope that soon our people will benefit from this,” she said.

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PBCN had also sued the federal government, as well as third parties Hudson Bay Mining Co. and Churchhill River Power Corp., but those claims were dismissed in 2014. The SCOA did however agree in 2016 that the claims against the provincial government and SaskPower, with respect to illegal trespassing on first nations territory, could go forward.

While expressing her happiness that the lawsuit can now have a chance to move ahead, Bird also expressed some hesitancy, explaining she’d rather see negotiations with SaskPower settled outside of court.

“We are leaving it up to the court system and if we do that we can end up with not much, nothing or lots too. For me, it’s risky,” she said.

The question of reserve status

One of the central issues argued in the case was whether Southend is in fact a reserve, and in 2019, the lower court judge dismissed the PBCN’s claim, after determining the land was owned by the province. This was based on the argument that the land had been transferred to the province in the 1930’s through the Natural Resources Transfer Agreement.

However, in its decision last week, the Court of Appeal concluded that the judge erred in this conclusion. The reserve status was actually part of the signing of Treaty 6 and was supported by a federal court order in 1981.

“I would therefore set aside the grant of summary judgment in favour of Saskatchewan and SaskPower,” Justice J.A. Leurer said in his written decision.

Leurer also stated PBCN was entitled to one set of costs against Saskatchewan and SaskPower in relation to its appeal, and the proceedings in the Court of Queen’s Bench leading to this appeal.

The matter was remitted to the Court of Queen’s Bench in Saskatoon. Bird said Chief and council will keep membership updated with respect to scheduling.

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nigel.maxwell@pattisonmedia.com

On Twitter: @nigelmaxwell