Peter Ballantyne Cree Nation wins partial victory on flooding lawsuit
Appeal court dismisses federal case, but says province committed tort of trespass
Saskatchewan's highest court has awarded a partial victory to a First Nation suing over a hydroelectric dam built decades ago that caused flooding on a northern reserve.
Peter Ballantyne Cree Nation sued Ottawa, Saskatchewan and SaskPower, saying that up to 600 acres of its Southend reserve, located 460 kilometres northeast of Prince Albert, is regularly flooded.
It also sued two third parties — Hudson Bay Mining Co. and Churchill River Power Corp.
Under Treaty 6, the reserve land was to be used by members of the First Nation for hunting, fishing and trapping.
However, thanks to the Whitesand Dam built in 1943 and the flooding it caused, those rights have been infringed upon, Peter Ballantyne says.
Saskatchewan, SaskPower trespassed, appeal court says
A lower court court judge dismissed the claim saying, among other things, that too much time had passed and when Peter Ballantyne appealed, there was a mixed result.
In a decision released this week, the Saskatchewan Court of Appeal agreed to dismiss the lawsuit with respect to the federal government and the third parties.
The appeal with respect to the claim for the continuing tort of trespass against Saskatchewan and SaskPower is allowed.- Appeal court Justice Maurice Herauf
However, it also said the claim against the Saskatchewan government and SaskPower was valid in the sense that they continue to trespass on First Nations territory.
"The appeal with respect to the claim for the continuing tort of trespass against Saskatchewan and SaskPower is allowed," said Justice Maurice Herauf in an 84-page decision that justices Ralph Ottenbreit and Peter Whitmore concurred with.
"Having determined that the Cree Nation has a claim in continuing trespass against Saskatchewan and SaskPower, the matter is returned to the Court of Queen's Bench."
The lower court is directed to look at damages, but also to consider SaskPower's arguments that it acted with the permission of the First Nation, the appeal court said.