Michel v Saskatchewan, 2021 SKCA 126

Court of Appeal for Saskatchewan Citation: Michel v Saskatchewan , 2021 SKCA 126 Date: 2021-09-22 Docket: CACV3565 Between: Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on his own behalf and on behalf of all other members of Peter Ballantyne Cree Nation, and Peter Ballantyne Cree Nation Appellants (Respondents) And The Government of Saskatchewan and Saskatchewan Power Corporation Respondents (Applicants) And The Attorney General of Canada Non-Party (Respondent) Docket: CACV3566 Between: The Attorney General of Canada Appellant (Third Party/Respondent) And The Government of Saskatchewan and Saskatchewan Power Corporation Respondents (Defendants/Applicants) And Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on his own behalf and on behalf of all other members of Peter Ballantyne Cree Nation, and Peter Ballantyne Cree Nation Non-Parties (Plaintiffs/Respondents) Before: Schwann, Leurer and Kalmakoff JJ.A.

Disposition: Appeals allowed; judgment set aside and matter remitted to the Court of Queen’s Bench Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Kalmakoff On appeal from: 2019 SKQB 334 , Saskatoon Appeal heard: December 1 and 2, 2020 Counsel: Thomas Berger, Q.C., and Monique Pongracic-Speier, Q.C., for Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on his own behalf and on behalf of all other members of Peter Ballantyne Cree Nation, and Peter Ballantyne Cree Nation Mitch McAdam, Q.C., and Macrina Badger for the Attorney General of Saskatchewan James Ehmann, Q.C., and Diana Lee, Q.C., for SaskPower Corporation Sheila Read and Samantha Gergely for the Attorney General of Canada CONTENTS I. INTRODUCTION .. 1 II. BACKGROUND .. 3 A.

Historical background . 3 1. Southend . 3 2. The Lambart survey . 3 3. Island Falls power project and Whitesand dam .. 5 4. Questions as to the status of Southend . 7 5. PBCN’s treaty land shortfall 10 6. The 1981 OC .. 12 7. Transfer of Island Falls power project and Whitesand dam .. 13 8. Saskatchewan Treaty Land Entitlement Framework Agreement 14

B. The litigation . 15 1. First

Summary Judgment Decision (2014 SKQB 327) 15 2. First Appeal Decision (2016 SKCA 124) and Rehearing Decision (2017 SKCA 5) 16 3. Amendment Decision (2018 SKQB 250) and Amendment Leave Decision (2018 SKCA 90) 19 4. Chambers Decision (2019 SKQB 334) 19 III. ISSUES . 23 IV. ANALYSIS . 24 A. Do Saskatchewan and SaskPower have standing to challenge Southend’s status as a reserve? . 24 B. Did the Chambers judge err by granting judgment using the

summary judgment process? . 25 C. Was it open to the Chambers judge to find that Southend is not a reserve? . 33 1. Issue estoppel 33 a. Conditions for issue estoppel to arise . 33 b. Conditional agreement that Southend was a reserve . 36 c. Amendment decisions . 48 d. Conclusion on issue estoppel 52 2. Estoppel by convention . 52 3. Conclusion on Southend’s reserve status . 64 D. Did the 1939 consent authorize the flooding? . 64 E. Did the 1939 consent create an interest in land? . 67 F. Did the 1939 consent apply after CRPC ceased to operate the Whitesand dam? . 75 1. Chambers Decision . 75 2.

Parties’ positions . 76 3. Standard of review .. 77 4. Analysis . 79 5. Conclusion on the continued vitality of the 1939 consent 88 G. Is a Bartlett -type defence applicable on the present facts? . 88 H. Does proprietary estoppel arise on the present facts? . 92 1. Chambers Decision . 92 2. Parties’ positions . 94 3. One or two defences? . 95 4. Elements of proprietary estoppel 97 5. Analysis . 100 6. Conclusion on proprietary estoppel 106 V. CONCLUSION .. 106

Leurer J.A. I. INTRODUCTION [ 1 ] This appeal is the continuation of long-standing litigation involving Peter Ballantyne Cree Nation [PBCN], the Government of Saskatchewan [Saskatchewan], Saskatchewan Power Corporation [SaskPower] and the Attorney General of Canada [Canada]. The dispute relates to the flooding of lands located at the south end of Reindeer Lake . [ 2 ] In 1981, federal Order in Council PC 1981-19 [1981 OC] “confirmed” that 10,425.5 acres of land, identified in a

schedule to that order in council, “is a Reserve within the meaning of the Indian Act having been set apart as such for the use and benefit of the Peter Ballantyne Band of Indians as Southend Indian Reserve Number 200 pursuant to Treaty 6 upon consultation and survey in 1929”. I will refer to this land as Southend in this judgment. [ 3 ] Some of Southend is flooded because of a dam [Whitesand dam] that was constructed in 1942 by Churchill River Power Company [CRPC]. The Whitesand dam is now owned by Saskatchewan and operated by SaskPower.

As a result of this flooding, in 2004, PBCN sued Saskatchewan, SaskPower and Canada in trespass and other causes of action. In the years since, this lawsuit has followed a tortuous path. [ 4 ] In 2014, the defendants were granted

summary judgment dismissing all claims against them: Peter Ballantyne Cree Nation v Canada (Attorney General) , 2014 SKQB 327 , 455 Sask R 60 [ First

Summary Judgment Decision ]. [ 5 ] In 2016, this Court partially overturned the First

Summary Judgment Decision and held that PBCN could continue its claim in trespass against Saskatchewan and SaskPower: Peter Ballantyne Cree Nation v Canada (Attorney General) , 2016 SKCA 124 , [2017] 1 WWR 685 [ First Appeal Decision ]. Central to the First Appeal Decision was the conclusion that Canada had given CRPC a licence to use or occupy land forming part of the Southend reserve by a letter dated July 10, 1939 [1939 consent].

This Court remitted issues relating to the effect of the 1939 consent, defences raised by Saskatchewan and SaskPower and questions as to remedy to the Court of Queen’s Bench. [ 6 ] This Court later dismissed applications made by PBCN and SaskPower for a rehearing: Peter Ballantyne Cree Nation v Canada (Attorney General) , 2017 SKCA 5 , [2017] 5 WWR 84 [ Rehearing Decision ]. [ 7 ] Among the defences raised by Saskatchewan and SaskPower to PBCN’s trespass claim is the argument that Canada had no authority to declare Southend a reserve because these lands had passed to Saskatchewan on October 1, 1930, pursuant to the Natural Resources Transfer Agreement [ NRTA ].

Saskatchewan and SaskPower say, therefore, that the entirety of Southend is owned by Saskatchewan and, for this reason, PBCN cannot maintain an action in trespass. [ 8 ] In 2019, Saskatchewan and SaskPower again applied for

summary judgment. A Court of Queen’s Bench judge sitting in Chambers concluded that Southend had been transferred to Saskatchewan pursuant to the NRTA and, therefore, is owned by the province. He further held that, as a result, Southend could not have been confirmed by Canada as a reserve pursuant to the 1981 OC. Finally, he determined that the 1939 consent operated to provide Saskatchewan and SaskPower with several defences to PBCN’s claim.

In the result, the Chambers judge dismissed PBCN’s action: Michel v Canada (Attorney General) , 2019 SKQB 334 [ Chambers Decision ]. [ 9 ] PBCN and Canada now appeal the Chambers Decision . [ 10 ] In my respectful view, the Chambers judge erred in granting judgment in favour of Saskatchewan and SaskPower. I have concluded that Saskatchewan and SaskPower cannot call into question Southend’s status as a reserve. Their position on this issue is contrary to the First Appeal Decision , which was dependent on the proposition that Southend is a reserve. 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 Chambers Decision also contains several other material errors, requiring that the judgment be set aside. [ 11 ] The matter must therefore be again remitted to the Court of Queen’s Bench for a determination of the remaining issues in dispute between the parties. My reasons for these conclusions follow. II. BACKGROUND A. Historical background 1.

Southend [ 12 ] PBCN’s members are descendants of Indigenous persons who, in 1889, adhered to Treaty No. 6, Between Her Majesty the Queen and the Plain and Wood Cree Indians and other Tribes of Indians at Fort Carlton, Fort Pitt and Battle River, 1876 [Treaty 6].

Treaty 6 requires the Crown to set apart reserve lands for the First Nations parties: … to be administered and dealt with for them by Her Majesty’s Government of the Dominion of Canada; provided, all such reserves shall not exceed in all one square mile for each family of five, or in that proportion for larger or smaller families, in manner following, that is to say: that the Chief Superintendent of Indian Affairs shall depute and send a suitable person to determine and set apart the reserves for each band, after consulting with the Indians thereof as to the locality which may be found to be most suitable for them. [ 13 ] Numerous reserves have been established for PBCN and its members across northern Saskatchewan.

Since at least 1923, members of PBCN have continuously occupied a settlement located on the south end of Reindeer Lake in Saskatchewan. Today,

approximately 1,000 PBCN members live in Southend. 2. The Lambart survey [ 14 ] When the prairie provinces were created, the federal government retained control of Crown lands and resources within these provinces’ boundaries. This was not the case for the other provinces and was a major constitutional grievance of the prairie provinces. [ 15 ] The federal government ultimately agreed to transfer its remaining Crown lands and resources to the prairie provinces in the 1920s. Canada and Saskatchewan entered into the NRTA on March 20, 1930, effective as of October 1, 1930.

The NRTA was approved by the Legislature of Saskatchewan ( The Saskatchewan Natural Resources Act , SC 1930, c 41 ) and the Parliament of Canada ( British North America Act, 1930 , 20-21 Geo V, c 26 (UK)) and has constitutional status. Canada entered into similar agreements with Alberta and Manitoba. [ 16 ] Under s. 10 of the NRTA , Canada was to retain ownership of reserve lands. It was understood when the NRTA was negotiated that Canada had unfulfilled treaty obligations to First Nations.

In the lead-up to the NRTA , Canada identified lands that would be withheld from the transfer to Saskatchewan to meet these treaty obligations. [ 17 ] I n the spring of 1929, the Department of Indian Affairs arranged for the surveying of reserves, including around Reindeer Lake. On April 29, 1929, an official with the Department of Indian Affairs wrote to the Surveyor General, an official with the Department of the Interior, requesting a survey of reserves for several bands, including Barren Lands First Nation which had adhered to Treaty 10.

The letter advised the Surveyor General that Barren Lands First Nation was entitled to 21,376 acres based on its population and that it was “thought that this may be made in two parcels, one at Brochet [in Manitoba] and the other at South End, both on Reindeer Lake”. [ 18 ] H.F. Lambart was given the responsibility to survey the reserves. An exchange of letters between Mr. Lambart and the Surveyor General on May 17, 1929, and May 20, 1929, evince the instructions given to Mr. Lambart.

He was advised that he should expect to encounter members of the Barren Lands First Nation at Southend, with whom he should consult when establishing reserve boundaries. The letters further record that land set aside for a reserve at Southend should be deducted from the land to be set aside at Brochet. Mr. Lambart was also told that he would “encounter the claims of trading companies, private traders, church properties and squatters other than treaty Indians”. All these claims were “to be surveyed and monumented so that they will not be included in the Reserves”. [ 19 ] In the fall of 1929, Mr.

Lambart reported to the Surveyor General on the results of his work. He noted that he had surveyed four parcels for reserves, including one of 10,122 acres at Southend. His report stated that he “found no connection between the Barren Lands Band of Chipewan at Brochet and the Crees at Southend”. He further recorded that, “[f]ollowing instructions the reserve at Southend is based on the population found, allowing 128 acres a head and the whole deducted from the total allowance, for the Barren Land Band”. Mr.

Lambart noted that the census was taken at the same time as the survey was conducted and “there was not much interest manifested and after a short discussion [his] proposal of [the reserve’s] location and boundaries was accepted without further conversations”. [ 20 ] Mr. Lambart also recorded that he had excluded several lots from the area encompassed by the survey, including one for the Hudson’s Bay Company. As the Chambers judge observed, it “would become evident later on that the Hudson’s Bay lot was in the wrong location and that [Mr.

Lambart] had missed surveying out other lots for persons that were not present at the time” ( Chambers Decision at para 14). [ 21 ] The Annual Report of the Department of Indian Affairs for the year ending March 31, 1930, records that a “new reserve was located and surveyed at Southend”. 3. Island Falls power project and Whitesand dam [ 22 ] Reindeer Lake is part of the Churchill River water system. On November 29, 1928, acting pursuant to the Dominion Water Power Act , RSC 1927, c 210 [ Dominion Water Power Act ], and the regulations made thereunder (PC 4034,

(1921) C Gaz, Vol 55 (Supp) [ Dominion Water Power Regulations ]), Canada granted CRPC an interim licence “to impound, divert and use the waters of the Churchill River at and near the site known as Island Falls … to develop power or energy from the said waters and to transmit, distribute, sell and deliver the said power or energy within the limits of the Provinces of Saskatchewan and Manitoba” [interim licence]. Island Falls is located approximately 112 kilometres downstream from Southend.

The Island Falls power project began operation in 1931 under the authority of the interim licence. [ 23 ] The interim licence contemplated that, when certain conditions were fulfilled, it would be replaced by a final one. According to the interim licence, the “term of the Final Licence shall be fifty (50) years from and after the date … for the completion of the initial development”. After the NRTA , Saskatchewan became the applicable regulator.

On October 21, 1937, it issued CRPC a final licence for the Island Falls power project under the authority of The Water Power Act, 1931 , SS 1931, c 18 [ The Water Power Act ]. Consistent with what had been contemplated in the interim licence, CRPC’s final licence was for a fixed term, expiring on March 31, 1981. [ 24 ] After the construction of the Island Falls power project, CRPC began to have concerns about the consistency of the water flow in the Churchill River. It also needed additional power generating capacity. This led CRPC to propose to control the water flow to the Island Falls power project.

To do this, it sought permission to build a dam to back up water into Reindeer Lake, in essence using the lake as a reservoir to regulate the flow of water into the Churchill River. One possible site CRPC identified for the dam was at Whitesand rapids, located approximately 11 kilometres downstream from Southend and 100 kilometres upstream from the Island Falls power project. [ 25 ] Several reports were prepared to investigate CRPC’s proposal. One of these reports, dated December 20, 1938, was prepared by

R.W. Davis, an engineer employed by CRPC. Mr. Davis’ report referred to a survey which established a benchmark elevation for Reindeer Lake. His report described several possible dam sites that would achieve the raising of the lake level by 10 feet, and referred to several maps, or plats, which showed areas that would be flooded if the lake level were to be raised. [ 26 ] Subsequent correspondence that passed between officials of the two levels of government resulted in the selection of Whitesand rapids as the proposed site of the dam.

This correspondence also identified that, although flooding would occur if the dam were to be constructed, no damage would be done to buildings located in the Southend settlement. [ 27 ] On June 26, 1939, Erich Weber, the Assistant Secretary of CRPC, wrote to the local Indian agent and advised that CRPC had “received formal approval of both the Provinces of Manitoba and Saskatchewan to proceed with this project”.

The letter further stated that CRPC wanted “to be sure that the Department of Indian Affairs have full knowledge of the project” and that it “wish[ed] to be in order with all Departments that may have any interests in the area”. [ 28 ] T.R.L. MacKinnes, the Secretary of the Department of Mines and Resources, Indian Affairs Branch, replied to Mr.

Weber on July 10, 1939 – the “1939 consent” as I am referring to it in this judgment – stating as follows: I wish to acknowledge receipt of your letter of June 26th, in which you refer to the proposed storage project of your Company at Reindeer Lake in the Province of Saskatchewan. The information which you have forwarded to our local agent, Mr. Samuel Lovell, earlier this year was in due course forwarded here and has been given favourable consideration.

In so far as the Indian interest is concerned, this department does not anticipate any unfavourable results from the water conservation plan in Reindeer Lake and will not oppose the construction works as outlined by Mr. Davis in his report dated December 20, 1938 . (Emphasis added) [ 29 ] In the First Appeal Decision , this Court concluded that the 1939 consent was the grant by Canada of a licence to CRPC to flood an area of Southend in exercise of its power pursuant to s. 34 of the Indian Act , RSC 1927, c 98 [1927 Indian Act ].

Section 34 provided that persons other than members of the First Nation for whom a reserve was created shall not, “without the authority of the Superintendent General [of Indian affairs], reside or hunt upon, occupy or use any land or marsh, or reside upon or occupy any road, or allowance for road, running through any reserve belonging to or occupied by such band”.

Notwithstanding this Court’s finding that the 1939 consent created a licence in favour of CRPC to flood an area of Southend, the proper characterization of the legal rights imbued by the 1939 consent has been the subject of ongoing disagreement between the parties. [ 30 ] CRPC later obtained approval from Canada to construct the Whitesand dam pursuant to the Navigable Waters Protection Act , RSC 1927, c 140 [ Navigable Waters Protection Act ]. CRPC also obtained a licence for the Whitesand dam from Saskatchewan under The Water Power Act . Saskatchewan’s licence only granted authority to flood provincial lands.

Its term was made to coincide with that of the licence to operate the Island Falls power project. [ 31 ] CRPC’s application for provincial approval described the Whitesand dam as consisting of two parts: first, a new channel to be excavated at Rocky Falls, at the outlet of Reindeer Lake; and second, a concrete control dam at Whitesand rapids. The control dam was said to be “essentially a gravity type concrete structure having two sluiceways with four stop log controlled openings in each sluiceway”.

The stop logs were to be “manipulated by a stop log hoist machine which normally will be power driven but which can be hand operated if necessary”. The application lists expected construction costs of $380,000. 4. Questions as to the status of Southend [ 32 ] Although often referred to as Southend Indian Reserve No. 200 in various documents produced by relevant federal and provincial departments and agencies, in the years after the completion of Mr.

Lambart’s survey work, Southend’s status was not clear. [ 33 ] The NRTA withheld from the transfer to Saskatchewan reserve land and land that had been “selected and surveyed but not yet confirmed” to be a reserve.

In this regard, s. 10 of the NRTA states: Indian Reserves 10 All lands included in Indian reserves within the Province, including those selected and surveyed but not yet confirmed , as well as those confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the appropriate Minister of the Province, select as necessary to enable Canada to fulfil its obligations under the treaties with the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof. (Emphasis added) [ 34 ] Before the Chambers judge, both PBCN and Canada conceded that Southend had not been confirmed as a reserve by October 1, 1930.

One of the issues the Chambers judge was called upon to decide was “whether or not enough was done to set apart those lands to classify them as having been ‘selected and surveyed’ for the purposes of reserving them to the federal government after the NRTA transfer” ( Chambers Decision at para 49). [ 35 ] Both before and after October 1, 1930, correspondence passed between officials of both Canada and Saskatchewan relating to the inventory of resources that had been transferred to Saskatchewan and withheld by Canada pursuant to s. 10 of the NRTA .

There was evidence before the Chambers judge that Southend was not listed in this inventory as being among land that had been withheld from the transfer from Canada to Saskatchewan. However, other lists produced by the Department of Indian Affairs at around the same time listed

the Southend lands as being federal property. [ 36 ] The parties also filed competing expert evidence as to whether Mr. Lambart’s survey work was sufficient to be considered “selected and surveyed” and what manner of confirmation was required for his work to be considered complete. SaskPower’s expert further contended that, as Mr. Lambart’s survey was never confirmed by the Surveyor General, it never became an official plan under s. 56(2) of the Dominion Lands Surveys Act , SC 1908, c 21 [ DLSA ] , and the Dominion Lands Act , RSC 1927, c 113 [ DLA ].

On the other hand, PBCN’s expert opined that the DLA “did not apply to Indian reserves” and that the “sole purpose of surveying Dominion Lands under the DLA and the DLSA was to open them for homesteading pursuant to s. 7 of the DLA ” ( Chambers Decision at para 81). [ 37 ] Other evidence disclosed dissatisfaction with Southend as a site for a reserve. For example, in a report dated October 1, 1931, W. Murison, Inspector of Indian Agencies, noted that a “portion of the Peter Ballandine [ sic ] Band have been allotted a reserve” at the south end of Reindeer Lake.

He noted he “had a very interesting talk” with the inhabitants there “who seem[ed] anxious to better their condition”. He expressed the view that “very poor judgment, in my opinion, has been used in allotting a reserve for these people”. By way of further example, a 1951 memorandum between officials with the federal Department of Citizenship and Immigration, Indian Affairs Branch, noted that discussions had taken place with provincial officials in 1949, during which it had been “made clear that the location of the present Indian Reserve at South End was no longer desirable”.

The memorandum reported that, for “the past two years, members of the Peter Ballantyne Band, numbering 160 Indians, residing at South End, Reindeer Lake, have requested action be taken to move them from their present location to another point”.

The memorandum discussed alternative sites that the affected inhabitants might accept and then concluded that the First Nation members were “prepared to surrended [ sic ] all their claims to their present holdings at South End in exchange for holdings at Sucker Point”. [ 38 ] In the late 1950s, the fact that Southend had never been confirmed as a reserve came up in the context of resolving issues relating to the status of Hudson’s Bay Company claims on several reserves, including Southend.

The Acting Chief of the Mining and Lands Division of the Department of Northern Affairs conducted an extensive examination of the department’s records. In a memorandum dated September 22, 1958, he reported to the Chief of the Reserves and Trusts Service of the Indian Affairs Branch of the Department of Citizenship and Immigration that the lands had been selected and surveyed as a reserve, and therefore remained federal Crown lands, although the final step to confirm a reserve had not been taken: 3.

According to our files, Southend Indian Reserve No. 200, comprising 10425.5 acres, was selected in 1929 and surveyed by H. F. Lambert [ sic ], D.L.S., in July of that year. The original survey plan of this Reserve is registered with Legal Surveys under No. 2372, and there is also a site plan by Mr. Lambert [ sic ] filed under Reference No. 37675, showing a Hudson’s Bay Company Post in Lot 1, Group 520, an R.C. Mission in Lot 2, Group 520, and a claim of John Charles Thomas in Lot 3, Group 520.

We have not been able to trace any reference to Federal Crown Grants of these areas, and it would seem that they still comprise portions of the Reserve, which, I might mention, was referred to as Peter Bird Reserve on several occasions. An exhaustive search of our records has failed to establish that this Reserve was ever confirmed by Order-in-Council, but it apparently remained vested in the Crown in right of Canada under

Section 10 of the [ NRTA ], in view of the wording of this

Section which made adequate provision for such a contingency, as follows[.] The memorandum went on to state that it “would be relatively simple to ratify the status of this Reserve, by an Order-in-Council”. [ 39 ] Other correspondence and documents internal to Canada, from the 1960s, evidence an understanding on the part of federal officials that Southend had not been transferred to Saskatchewan because it had been selected and surveyed for a reserve prior to October 1, 1930 but had not been confirmed as such by Canada.

Federal officials identified several issues that had to be dealt with before a reserve could be confirmed. These included the failure to omit third party lands from the original survey and the fact that approximately 600 acres of Southend land was now under water because of the Whitesand dam. [ 40 ] In 1969, Saskatchewan transferred to Canada one of the lots that had been excluded from the area surveyed for Southend in exchange for other land.

As the Chambers judge explained, “[i]f the land was transferred to Saskatchewan under the NRTA , there would have been no need for Saskatchewan to swap parcels” ( Chambers Decision at para 106). [ 41 ] Because of the problems that had been identified with the Lambart survey, Canada ordered a new survey. It was completed in 1971. A letter from the Department of Indian Affairs and Northern Development advised that the purpose of the new survey was “to stabilize the boundaries of Southend Indian Reserve No. 200”. 5.

PBCN’s treaty land shortfall [ 42 ] Many First Nations – PBCN among them – did not receive reserves of sufficient area to fulfil treaty entitlements. Canada and Saskatchewan accepted this fact. This shared understanding led to negotiations involving Canada, Saskatchewan and affected First Nations to remedy this shortfall.

Although it was not a signatory to the numbered treaties, Saskatchewan was involved in these negotiations because it was subject to the obligation created by s. 10 of the NRTA to provide unoccupied provincial Crown land to Canada to assist in fulfilling its outstanding land-related treaty obligations to First Nations.

Among the issues identified in these negotiations as requiring resolution was the precise shortfall in land that had been allotted to First Nations. [ 43 ] So far as these negotiations concerned PBCN, they were conducted based on the shared understanding on the part of Canada and Saskatchewan that Southend was an unconfirmed reserve – that is, land that had not passed to Saskatchewan pursuant to the NRTA .

The fact that approximately 600 acres of Southend were flooded by the Whitesand dam became a point of contention in the negotiations. [ 44 ] On February 21, 1977, Rob Milen, Saskatchewan’s Co-ordinator of Treaty Indian Land Claims, wrote to an official with Canada’s Department of Indian Affairs and Northern Development. He expressed his “understanding that the ‘Reserve’ at Southend was an area not transferred to the Province of Saskatchewan in 1930 under the Natural Resources Transfer Agreement per

Section 10”. He explained his further understanding that the reserve “was never confirmed because 600 acres were flooded allegedly caused by an upstream dam” and that “there is a suggestion that there is (some) responsibility on the part of the Province for the flooding”. His letter concluded by inviting a discussion of this issue. Canada’s reply stated its concurrence “that the reserve was not transferred to the Province and that it had not been set aside as a reserve for [PBCN] by a Federal Order in Council”. Canada further explained that, since Saskatchewan had approved the dams that had caused flooding, “it would be on this basis that the Peter Ballantyne Band will be seeking

compensation by way of additional lands in their land entitlement settlement”. [ 45 ] On August 10, 1977, Mr. Milen wrote again to a federal counterpart. His letter explained that the “Reserve lands were flooded by construction of the Whitesand Rapids storage dam”. He noted that, “while both the federal and provincial governments agreed to the flooding of certain lands by the Whitesand Rapids Dam there is no agreement nor is there any reference to any negotiations having taken place with [PBCN] relative to Reserve lands”.

The letter stated that “the figure of 600 acres is reasonable” as an estimate of the acreage under flood. [ 46 ] Correspondence passed between federal and provincial officials relating to the implications of the flooding caused by the Whitesand dam. In a letter dated June 5, 1978, Mr. Milen reiterated that he “wish[ed] to make clear that the land at Southend was land that was not transferred to the Province under

Section 10 of The Natural Resources Transfer Agreement, 1930 , and has always remained in possession of Crown Canada [ sic ]”. [ 47 ] On March 24, 1980, PBCN’s then-Chief wrote to the Director General of the Department of Indian Affairs to take issue with the Department’s contention that Southend was not already a confirmed reserve and that PBCN should accept the 1971 survey as establishing the boundary for the Southend reserve to be created by order in council.

He further stated that “[a]cceptance of the 1971 survey would eliminate the violation of Indian lands by the Province, the Hudson’s Bay Company and the Churchill River Power Company, as if they never happened”. 6. The 1981 OC [ 48 ] Southend was confirmed by Canada as a reserve on January 9, 1981, by the 1981 OC. It states: WHEREAS the Peter Ballantyne Band of Indians, residing in the Province of Saskatchewan, joined Treaty 6 on February 11, 1889; WHEREAS the administration and control of the lands described in the

schedule hereto remained with Her Majesty in right of Canada pursuant to

section 10 of the 1930 Transfer of Natural Resources Agreement; WHEREAS the Peter Ballantyne Band of Indians have used and occupied the lands described in the attached

schedule as a Reserve in partial satisfaction of its treaty entitlement; AND WHEREAS the lands described in the

schedule hereto have never been confirmed as an Indian Reserve. THEREFORE, HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Minister of Indian Affairs and Northern Development, is pleased hereby to confirm that the lands described in the

schedule hereto and shown on a plan of Southend Indian Reserve by H.F. Lambart in 1929 recorded as 37681 in the Canada Lands Surveys Records at Ottawa, is a Reserve within the meaning of the Indian Act having been set apart as such for the use and benefit of the Peter Ballantyne Band of Indians as Southend Indian Reserve Number 200 pursuant to Treaty 6 upon consultation and survey in 1929. [ 49 ] The

schedule referred to in the 1981 OC identifies the land set aside for the confirmed reserve as being “shown bordered in brown on a plan of Southend Indian Reserve, by H.F.

Lambart in 1929, recorded as 37681 in the Canada Lands Surveys Records at Ottawa … excluding lots 1, 2 and 3 shown on said plan and the remainder containing 10,425.5 acres, more or less”. [ 50 ] O n January 30, 1981, the then-Chief of PBCN wrote to the provincial Minister responsible for SaskPower, stating as follows: On behalf of the Peter Ballantyne Band Council and membership, I am taking this opportunity to advise you that the hydro-electric facilities operated by the Churchill River Power have and continue to unlawfully flood portions of the Southend Indian Reserve #200.

At no time has the Chief and Council of the Peter Ballantyne Band or the Minister of Indian Affairs consented to this trespass of Indian lands or to the expropriation of such flooded lands. The protection of Indian lands contained in the present and former Indian Acts make such flooding an unlawful action. Accordingly, we are advised that we can obtain compensation for past damages and are in a position to obtain injunctive relief, if satisfactory arrangements cannot be negotiated for present and future flooding.

It is our understanding that the Province intends to exercise its option to acquire the Churchill River Power Corporation’s facilities at the expiration of the present leases. Following such a transfer in ownership, it would appear that Saskatchewan Power Corporation becomes responsible for the continuing unlawful flooding and trespass of Reserve #200. 7. Transfer of Island Falls power project and Whitesand dam [ 51 ] CRPC’s provincial licences for the Island Falls power project and Whitesand dam expired on March 31, 1981.

Saskatchewan thereby became entitled to take possession of these works, subject to the payment of compensation as set out in regulations made pursuant to The Water Power Act , as enacted by Order in Council 1360/43, which replaced the Dominion Water Power Regulations . Saskatchewan exercised this right, and possession and title to the Island Falls power project and the Whitesand dam passed to Saskatchewan pursuant to The Water Power Act and regulations passed pursuant thereto, effective at 12:01 a.m. CST on April 1, 1981.

As set out in an agreement between Saskatchewan and CRPC made as of April 1, 1981, Saskatchewan agreed to pay to CRPC the sum of $33,578,814 for the power development assets located at Island Falls and Whitesand, subject to that amount being adjusted in subsequent litigation between the parties. [ 52 ] SaskPower was designated by Saskatchewan to operate those assets. Between 1981 and 1984, the assets were operated by CRPC’s shareholder, Hudson Bay Mining and Smelting Co. Ltd. [HBMSC], pursuant to an agreement with SaskPower. Since 1984, SaskPower has operated the assets.

[ 53 ] On December 3, 1981, lawyers for PBCN issued a further demand for compensation from SaskPower because of the flooding of Southend lands caused by the operation of the Whitesand dam. 8. Saskatchewan Treaty Land Entitlement Framework Agreement [ 54 ] Negotiations relating to the shortfall in treaty land entitlements of PBCN and other First Nations continued for many years. The negotiations culminated in several agreements.

Three of these agreements are relevant to this appeal, as is legislation that effected a constitutional amendment to implement one of them. [ 55 ] The first agreement was the Saskatchewan Treaty Land Entitlement Framework Agreement [TLEFA] entered into on September 22, 1992, between Canada, Saskatchewan and the 25 First Nations defined in the TLEFA as “Entitlement Bands”. A measure of the complexity of the TLEFA is the period over which it was negotiated. Evidence before the Chambers judge included communications relating to what became the TLEFA dating from the 1970s. A second measure is its length.

The TLEFA ran to 137 pages, not including its many detailed schedules. The TLEFA contained the terms and conditions pursuant to which the Entitlement Bands’ treaty land entitlements, including those of PBCN, would be met by payments from Canada and Saskatchewan. In exchange for its commitments under the TLEFA, Saskatchewan would be relieved of its obligations to provide unoccupied provincial Crown land to Canada under s. 10 of the NRTA . [ 56 ] The TLEFA contemplated that individual First Nations would enter separate “Band Specific Agreements” with Canada.

The Peter Ballantyne Cree Nation Treaty Land Entitlement Band Specific Agreement was entered into between PBCN and Canada on December 10, 1993. PBCN’s Band Specific Agreement dealt with implementation issues, although, in its

preamble, it reiterated PBCN and Canada’s agreement that, “in consideration of the financial and other contributions to be made by Saskatchewan, pursuant to the Framework Agreement, Saskatchewan’s obligations to provide unoccupied Crown land to Canada under paragraph 10 of the Natural Resources Transfer Agreement , in relation to [PBCN], shall now be fulfilled”. [ 57 ] Finally, the TLEFA contemplated that Canada and Saskatchewan would enter an agreement to vary the NRTA [ NRTA Constitutional Amendment Agreement]. This occurred on December 8, 1992.

This agreement was subsequently ratified by The Saskatchewan Natural Resources Transfer Agreement (Treaty Land Entitlement) Act , SS 1993, c S-31.1 , and the Saskatchewan Treaty Land Entitlement Act , SC 1993, c 11 , and has constitutional status. B. The litigation [ 58 ] This litigation was commenced by PBCN by statement of claim issued on December 20, 2004. An amended statement of claim was filed in 2013. Saskatchewan and SaskPower later brought third party claims against CRPC and HBMSC. 1. First

Summary Judgment Decision ( 2014 SKQB 327 ) [ 59 ] In 2014, Canada, Saskatchewan and SaskPower applied for

summary judgment dismissing PBCN’s claim. HBMSC similarly applied for

summary judgment dismissing the third party claims that had been commenced by Saskatchewan and SaskPower against it and CRPC (which had earlier been dissolved). [ 60 ] In 2014, Smith J. issued the First

Summary Judgment Decision , dismissing all the claims made by PBCN in the action. In relation to the claims against Canada, he first held that the honour of the Crown “is not engaged” (at para 39) and that the remaining claims were barred by applicable limitation of actions legislation. He interpreted PBCN’s claim that there had been a failure to consult as referring to the allegation that “there was no consultation prior to the Crown’s consent for construction of both [the] Island Falls Dam and Whitesand Dam” (at para 42).

He also held that “ any cause of action for damages related to breach of fiduciary duty arose at the time of discovery of the material facts, which in this case was at the time of the signing of the licence agreement between the parties”. This meant that “the claim for fiduciary breach would have arisen in approximately 1939 when authorization for the Whitesand Dam project was ostensibly given to CRPC” (at para 78).

For these reasons, he concluded that PBCN’s claims against Canada were out of time. [ 61 ] Justice Smith similarly concluded that PBCN’s right to claim against Saskatchewan and SaskPower was time-barred on the footing that the trespass could not be considered as ongoing. He reasoned as follows: [91] It is clear in the present matter that although the extent of the flooded land of IR 200 fluctuates with the operational decisions of SaskPower, this flooding has persisted since the building of the spillways at Whitesand Dam in 1943. However, no new harm has arisen.

The same 240-600 acres of land continues to be flooded in more or less the same way since 1942. Furthermore, the water is not a “chattel” that has been left on the land which the defendants have failed to remove, which is a characteristic which the case law states is essential to a finding of a continuing trespass. [ 62 ] Finally, Smith J. also granted the application made by HBMSC for

summary judgment dismissing the third party claims against it and CRPC. 2. First Appeal Decision ( 2016 SKCA 124 ) and Rehearing Decision ( 2017 SKCA 5 ) [ 63 ] PBCN appealed the judgment dismissing its claims against Canada, Saskatchewan and SaskPower. This Court upheld the First

Summary Judgment Decision on all but one point, namely, the dismissal of the claim based on the tort of continuing trespass. [ 64 ] In relation to the alleged breach of the duty to consult, PBCN had argued that Smith J. had erred in finding that the operation of the dam did not create a “new or novel impairment of Aboriginal or treaty rights” ( First Appeal Decision at para 55 , quoting First

Summary Judgment Decision at para 43). Justice Herauf, writing for the Court, rejected this argument, concluding that “[s]ince its establishment , the dam has caused flooding to the same area of the Southend Reserve”. He accepted that the extent of flooding varied with operational requirements, but there was “nothing in the facts that suggest SaskPower is considering altering the way in which it operates the dam, including any decisions that would result in a greater flooding of the Southend Reserve” (at para 72). Accordingly, “there was no

novel or new adverse impact on treaty rights that would give rise to the duty to consult” (at para 74). [65] In relation to the claim against Canada alleging a breach of its fiduciary obligations, Herauf J.A. concluded that the effect of the1939 consent was to “provide a licence to [CRPC] to occupy the Southend Reserve”. He held that this licence had been granted by Canadain the exercise of its power pursuant to s. 34 of the 1927 Indian Act. He agreed that this “in effect gave up as many as 600 acres of[PBCN’s] reserve lands”.

He stated that this “arguably constitutes a breach of the Crown’s fiduciary duty” (at para 88), however, the“Crown’s breach can be pinpointed to the specific point in time when it gave a licence to flood the Southend Reserve land intermittentlythrough the operation of the Whitesand Dam” (at para 90). He held that this was when PBCN’s right to initiate proceedings againstCanada arose.

Since the Whitesand dam “has been operating the same way in accordance with the licence since it was constructed, and theeffects of removing and adding the stop logs have been consistent”, there was “nothing in the circumstances to relieve [PBCN] of thegeneral obligation imposed on all litigants to sue in a timely way” (at para 90). He therefore agreed that the claims against Canada weretime-barred. [66] Justice Herauf reached a different conclusion in relation to the claims against Saskatchewan and SaskPower in trespass.

Heheld that trespass “is different from most other torts, notably from nuisance, in that the offending action is in and of itself the damage thatgives rise to liability”. He found that a “trespass is occurring as long as the possessory rights of the plaintiff are being interfered with” (atpara 138). He went on to hold that “the flooding of the Southend Reserve, by directing the water from Reindeer Lake onto the land,interfered with [PBCN’s] possession. This interference with possession continues to this day.

A wrongful omission is committed every daythe water is allowed to interfere with possession” (at para 143). On this basis, he concluded that Smith J. had erred by not finding acontinuing trespass. Justice Herauf went on to hold that “SaskPower’s submission that [PBCN] gave irrevocable consent to theconstruction of the dam is a question that will have to be considered at trial” (at para 147). [67] Finally, Herauf J.A. confirmed the dismissal of the third party claims against HBMSC and CRPC.

He held that “[e]ven thoughthe continuing tort of trespass survives”, PBCN could claim damages only from one year prior to the issuance of its statement of claim in2004. He noted that HBMSC and CRPC “were out of the picture decades before that date” (at para 264). He concluded the First AppealDecision by directing that the matter be “returned to the Court of Queen’s Bench to determine the following issues: (

i) the merits ofSaskPower’s arguments relating to the consent issue as identified in paras 147 to 148 of this judgment; and (ii) damages” (at para 265). [68] After this Court’s decision, PBCN and SaskPower both applied for a rehearing. This Court dismissed both applications,resulting in the Rehearing Decision. [69] PBCN based its request for a rehearing on the argument that the First Appeal Decision had established new facts which gaverise to a fiduciary breach claim against Canada. This assertion was grounded in the finding that Canada had breached its fiduciary dutywhen it gave the 1939 consent.

PBCN argued that “it was not possible to discover the facts underlying this breach as Canada at all times[had] taken the position it had never authorized the flooding through the issuance of a licence or otherwise”. It also said that, “up until thehearing of the within appeal, none of the [defendants had taken] the position [that] a federal licence to flood the Southend Reserve wasissued by Canada” (Rehearing Decision at para 6).

Justice Herauf, again writing for the Court, rejected these arguments, and found thatthere were no special or unusual circumstances justifying reconsideration of this point: [12] I would point to essentially three reasons why no special or unusual circumstances arise out of [PBCN’s] application: (

i) contraryto [PBCN’s] submissions, SaskPower has argued Canada gave authorization to build and operate Whitesand Dam throughout theproceedings; (ii) [PBCN] did not attempt to pursue the discoverability argument on appeal; and (iii) there are no new facts orcircumstances that arise out of this Court’s decision. [70] Justice Herauf also rejected the arguments raised by SaskPower in support of its request for a rehearing. First, he rejected thesuggestion that a possible misunderstanding as to whether SaskPower had agreed that a trespass had occurred was material to the FirstAppeal Decision.

Second, he found that the Court’s reasons did not contain an inconsistency when it held both that the 1939 consentgranted a licence and that PBCN had a possible claim for continuing trespass. In this regard he held that “prior authorization does notnecessarily preclude a finding of trespass” (at para 32).

Third, while he agreed that the Court was mistaken in stating in the First AppealDecision that the issue of estoppel and the irrevocable nature of the consent had not been argued before Smith J., it remained “preferableto remit these issues to the Court of Queen’s Bench” given various factors, including the absence of reasons by Smith J. on this point andthe possible need for new evidence (at para 39). Lastly, Herauf J.A. rejected SaskPower’s contention that there was ambiguity inherent inthe issues that had been remitted relating to the 1939 consent and damages to the Court of Queen’s Bench.

In disposing of this issue, hefound there to be “no uncertainty that flows from the Court’s decision” (at para 40). He then added the following additional clarification: [41] However, for clarity purposes, I would offer that the Court of Queen’s Bench would be bound by this Court’s finding there was avalid licence. But, as already explained, this does not require the dismissal of the trespass claim as the trespass is continuing and [PBCN]states the licence has expired and it does not otherwise consent to the flooding.

The remaining issues would be whether the consent wasirrevocable (Bartlett-type defence), proprietary estoppel and, of course, any potential damages. The reference to a “Bartlett-type defence” was an acknowledgement by Herauf J.A. that Saskatchewan and SaskPower had referred toBartlett v Corner Brook (City), 2003 NLCA 10, 221 Nfld & PEIR 336 [Bartlett], as providing a defence to the trespass claim advanced byPBCN. [71] PBCN, Saskatchewan and SaskPower each applied for leave to appeal the First Appeal Decision and the Rehearing Decision tothe Supreme Court of Canada.

These applications were dismissed: Michel v Attorney General of Canada, . 3. Amendment Decision (2018 SKQB 250) and Amendment Leave Decision (2018 SKCA 90) [72] After this Court had ruled that the claims against Saskatchewan and SaskPower in trespass could continue, those defendantsapplied to amend their statements of defence to assert that Southend is not a reserve because its lands had been transferred toSaskatchewan in 1930 pursuant to s. 10 of the NRTA.

Justice Smith granted leave to Saskatchewan and SaskPower to make theseamendments over the objection of PBCN and Canada: Michel v Canada (Attorney General), 2018 SKQB 250 [Amendment Decision].

[ 73 ] PBCN applied for leave to appeal the Amendment Decision to this Court. That application was dismissed by Caldwell J.A.: Peter Ballantyne Cree Nation v Saskatchewan , 2018 SKCA 90 [ Amendment Leave Decision ]. [ 74 ] Saskatchewan and SaskPower also commenced third party proceedings against Canada. They say that, if they are found to be liable to PBCN, they are entitled to indemnity or contribution from Canada and other relief. 4. Chambers Decision ( 2019 SKQB 334 ) [ 75 ] Saskatchewan and SaskPower applied again for

summary judgment dismissing PBCN’s trespass claim. In granting this relief, the Chambers judge concluded that the claim failed for two broad reasons. [ 76 ] First, the Chambers judge agreed that PBCN’s claim should be dismissed because the Southend lands had passed to Saskatchewan in 1930 under the NRTA . As a result, he reasoned that Canada did not have constitutional authority to create a reserve in 1981 and therefore PBCN lacked a sufficient interest in the land to sustain a claim in trespass.

There were several steps in the reasoning leading to these conclusions. [ 77 ] The Chambers judge identified that, in order for the Southend lands to be a reserve, “they either had to be a reserve prior to October 1, 1930 or at least ‘selected and surveyed’ such that they would have remained in the possession of the federal government pursuant to s. 10 of the NRTA ” (at para 44).

He noted that, as no reserve had been created prior to October 1, 1930, “the question is whether there is sufficient evidence to find that the lands had been ‘selected and surveyed’, such that they were held back from the transfer of lands and minerals to Saskatchewan under the NRTA ” (at para 50).

After a detailed review of the evidence, including the historical record and the evidence of the parties’ experts, the Chambers judge concluded that Southend had not been excluded from the transfer to Saskatchewan pursuant to the NRTA : [121] In conclusion on this issue, I find that the Southend lands were never properly selected and surveyed such that they were excluded from the transfer of lands to the province on October 1, 1930. I come to this conclusion for a number of reasons. First, the authority given to Mr.

Lambart in 1929 was to select reserve lands for the Barren Lands band at the Southend location and deduct those lands surveyed from other lands to be dedicated to the Barren Lands band at another location on Reindeer Lake. This he did. Given his instructions, he had no authority to select reserve lands for the Peter Ballantyne band, a Treaty 6 nation, when he was given authority to select for Barren Lands, a Treaty 10 band. [122] Secondly, I find that with the evidence that Mr.

Lambart followed his instructions to a “T”, any consultation with the inhabitants at Southend would have communicated that he was selecting lands for the Barren Lands band and not Peter Ballantyne band. His documentation shows that he did consult with residents and headmen at Southend in relation to the census, but there is no indication that he consulted with the chief of Peter Ballantyne in making the selection. In addition, knowing Mr.

Lambart was sent to select lands for the Barren Lands band, then any consultation he had with “headmen” at Southend would be inappropriate and insufficient given they were members of Peter Ballantyne band and his instructions, which he would have relayed to them, were that he was selecting for Barren Lands band. There is evidence that confirms that he selected the land for Barren Lands band because the acreage selected at Southend was deducted from the acreage to be provided to Barren Lands band in other areas. [123] I also find that the survey itself was flawed and was not completed prior to the NRTA .

The boundary measurements were incomplete, and a later survey determined they were inaccurate. Several lots were surveyed but in the wrong locations and at least two lots, one for Arthur Jan and one for Revillon Freres Company Ltd., were not excluded from the reserve land at the time of the survey. Also, certain corner markers were not placed. It was clear in 1929 and early 1930 that more work and corrections were needed in order for the government to consider the survey complete. [124] Even if Mr.

Lambart’s survey was complete, the survey plans were not approved by the surveyor general or officials within the Department of Indian Affairs as required by the DLSA . [125] For the above reasons, I find that the lands were never excluded from transfer to the province pursuant to s. 10 of the NRTA . As those lands were transferred to the province under the NRTA , any attempt by Canada to establish a reserve in 1981 without the approval of Saskatchewan was invalid. The creation of a reserve after October 1, 1930 would require action and cooperation on the part of both Saskatchewan and Canada. [ 78 ] In granting

summary judgment on this basis, the Chambers judge also rejected arguments made by PBCN that principles of issue estoppel or estoppel by convention operated to prevent Saskatchewan and SaskPower from submitting that Southend was owned by Saskatchewan. In relation to the first of these points, PBCN had argued that the issue of reserve status for these lands had been determined in previous proceedings and could not be relitigated. The Chambers judge agreed that, “[o]n the face,” the preconditions for issue estoppel existed. However, he noted that the previous

summary judgment application proceeded solely on the basis that PBCN’s case was time-barred and “Saskatchewan and [SaskPower] agreed to the fact that the lands in question were part of an Indian reserve solely for the purposes of that application” (at para 31). Second, he attached significance to the fact that Saskatchewan and SaskPower were granted permission to amend their statements of defence and therefore it “cannot be said that the question of fact had been decided in a prior proceeding” (at para 33).

All of this led him to conclude that issue estoppel did not apply. [ 79 ] PBCN and Canada had also argued that Saskatchewan and SaskPower were barred by the doctrine of estoppel by convention from challenging Southend’s reserve status. This submission was built on the fact that, in entering the TLEFA, Southend was counted as land that PBCN had previously received in fulfillment of its treaty entitlement.

The Chambers judge held that an estoppel by convention had not arisen, holding that there was “no evidence before the court that Saskatchewan participated or even cooperated in the calculation of shortfall acres” or that it “played any role or participated in that calculation and no evidence that Saskatchewan communicated a shared assumption that the lands in question were an Indian reserve” (at para 39).

Further, he held that even if the execution of the TLEFA showed a shared assumption that the lands in question were a reserve, a party must have acted in reliance on the shared assumption and “Canada did not rely on Saskatchewan’s opinion as to the status of the lands in question being a reserve” (at para 41). He held that reliance could not be established “because there were no discussions between Saskatchewan and PBCN and/or Canada concerning the status of the lands in question” (at para 42).

[ 80 ] The Chambers judge held that, for these reasons, he “would grant the application brought by Saskatchewan and SaskPower and dismiss the plaintiff’s claim for continuing trespass” (at para 126). However, he proceeded to comment on several of the other issues that had been raised by the parties. [ 81 ] The Chambers judge stated that he could not find that either Saskatchewan or SaskPower had breached the honour of the Crown because “Saskatchewan relied on Canada for the information relating to shortfall acres in the TLEFA” (at para 131).

He rejected several arguments raised by PBCN and Canada that the 1939 consent was invalid. [ 82 ] The Chambers judge examined whether the 1939 consent “was meant to be or was personal to CRPC and prima facie revocable or if it was a licence granted more generally for the creation of the [Whitesand] Dam, the raising of the water level of Reindeer Lake and the subsequent flooding of lands” (at para 148). He reviewed the evidence that disclosed that Canada had “knowledge of the permanent nature of the Dam” (at para 149).

He then concluded: [153] The sole purpose of the construction of the Whitesand Dam was to increase the water levels in Reindeer Lake for the more efficient operation of the Island Falls electrical generation station. It is important to note that the licence granted to CRPC on November 29, 1928 in relation to Island Falls was granted to the “lawful holder of the Dam to impound, divert and use waters of the Churchill River to develop power.” There was no expiration date on that licence and no issue has been raised relating to Island Falls’ continued operation.

The operation of Island Falls is contingent on the continued operation of the Whitesand Dam. Therefore, it would be incongruous to argue that the Canadian consent for the building of the Whitesand Dam was specific to CRPC, but the original licence granted to operate Island Falls, for which the Whitesand Dam was an integral part of, was not personal to CRPC. [154] The consent granted by Canada in 1939 for the construction and operation of the Whitesand Dam made no reference to any limitations on the operation of the Dam.

As a result, it appears that Canada consented to the existence of the Dam indefinitely and the potential flooding that goes along with it. The consent was not made personal to CRPC and therefore can be relied upon by [SaskPower] and Saskatchewan as a defence to the trespass claim. [155] This leaves the question as to whether or not the licence needed to be specifically transferred to Saskatchewan and/or [SaskPower] at the time they took over operation of the Whitesand Dam.

As I have found that the consent granted by Canada was not personal consent to CRPC and instead was in relation to the Dam itself, the consent to continue operation of the Whitesand Dam did not need to be expressly transferred from CRPC to [SaskPower]. The consent attached to the Dam and not to CRPC. [ 83 ] The Chambers judge further held that if “Canada had not given its consent pursuant to the Indian interest [the phrase used in the 1939 consent] and the Navigable Waters Protection Act , CRPC may not have constructed the Dam.

As Canada’s consent was not withdrawn prior to the construction of the Dam, the expenditure of money to build the Dam arguably made the consent irrevocable” (at para 158). He found, as well, that SaskPower “has continued to make expenditures on the Dam in reliance on the consent that had been granted by Canada” (at para 159). He found that an “easement to flood the land accommodated CRPC and now accommodates [SaskPower] and Saskatchewan as it allows them to operate the Dam which results in flooding at Southend” (at para 160).

He also concluded that “there was consent as required by the Bartlett -type defence” (at para 174 ).

The Chambers judge also stated that “[i]t would seem that proprietary estoppel is available if, in fact, the authorization and consent of Canada was revocable” (at para 185). [ 84 ] Finally, the Chambers judge agreed that, if the Southend lands were a reserve, PBCN had not purchased the lands and this was not a “situation where ‘buyer beware’ reasonably applies” (at para 186). [ 85 ] The Chambers judge ended his analysis by restating his two broad reasons for dismissing PBCN’s claim in the concluding paragraph of the Chambers Decision : [187] Based on my conclusion that the Southend Lands are not a reserve, I would dismiss the plaintiff’s claim in its entirety.

As a result, they are not entitled to damages. However, had I found that a reserve had been created, I would have nonetheless granted the application to dismiss the continuing trespass claim given that the Canadian consent was given in relation to Whitesand Dam for the lifetime of the project and was irrevocable. III. ISSUES [ 86 ] PBCN and Canada separately appeal the Chambers Decision , taking issue with almost every aspect of it. Together, they argue the existence of palpable and overriding error in the Chambers judge’s fact-finding. They also assert the existence of various legal errors in his analysis.

Canada also takes issue with the use by the Chambers judge of the

summary judgment procedure to decide the issues before him. Saskatchewan and SaskPower argue generally that the Chambers judge committed no material errors. [ 87 ] In my respectful view, the outcome of the two appeals is dictated by the answers to the following questions: (

a) Do Saskatchewan and SaskPower have standing to challenge Southend’s status as a reserve? (

b) Did the Chambers judge err by granting judgment using the

summary judgment process? (

c) Was it open to the Chambers judge to find that Southend is not a reserve? (

d) Did the 1939 consent authorize the flooding? (

e) Did the 1939 consent create an interest in land? (

f) Did the 1939 consent apply after CRPC ceased to operate the Whitesand dam? (

g) Is a Bartlett -type defence applicable on the present facts?

(

h) Does proprietary estoppel arise on the present facts? IV. ANALYSIS A. Do Saskatchewan and SaskPower have standing to challenge Southend’s status as a reserve? [ 88 ] Canada asserts that the Chambers judge erred “in permitting Saskatchewan and SaskPower to attack the reserve creation process followed by Canada and [PBCN] without establishing sufficient standing”. It cites no authority in support of this submission. [ 89 ] This issue was not raised before the Chambers judge. For this reason alone, it might be dismissed.

As stated by Richards J.A. (as he then was), with reference to many authorities, the “settled rule, of course, is that this Court is generally loath to entertain a wholly new argument on appeal” ( Meier v Saskatchewan Institute of Agrologists , 2016 SKCA 116 at para 28 , 405 DLR (4th) 506). While the principle admits exceptions, Canada has offered no reason to apply one here. [ 90 ] In any event, the entitlement of a party to bring an action in trespass is premised on that person having a right to possession of the land that is superior to any right to possession claimed by the alleged trespasser.

As Saskatchewan asserts in its factum, “[w]ithout a superior right, the claim cannot succeed”. In this case, Saskatchewan has alleged in its amended statement of defence that the flooded lands, like the rest of Southend, transferred to it pursuant to s. 10 of the NRTA , and that PBCN and its members “have been occupying this land since October 1, 1930 without legal right”. SaskPower similarly denies that PBCN “had any rights over the Southend Land or the waters running adjacent to it”.

Both pleadings therefore put into issue whether PBCN has a right to the land that is superior to that of Saskatchewan or SaskPower.

On this basis, both defendants have standing to challenge Southend’s status as a reserve. [ 91 ] Finally, I would note that Canada joined its argument on this point with the observation that the defendants’ attack on Southend’s status came “more than 90 years after IR 200 was established in 1929, more than 35 years after its status was formally confirmed by Order in Council in 1981, and more than 25 years after Canada and [PBCN] formally agreed to resolve a treaty land entitlement shortfall in 1992, based on acreage numbers including IR 200 as [PBCN’s] reserve land”.

However, the timing of the defendants’ attack on the status of the reserve is a function of when the action was brought against them, raised as it is as a defence to the claim in continuing trespass. Canada has not referred to any prejudice that it has suffered because this issue was raised by way of an amendment to the statements of defence of Saskatchewan and SaskPower. I therefore see no reason to find that delay on their

part in asserting this issue is relevant. [ 92 ] Later in these reasons, I will address whether it was open to the Chambers judge to find that Southend is not a reserve. However, I see no basis to deny Saskatchewan and SaskPower standing to raise this issue. B. Did the Chambers judge err by granting judgment using the

summary judgment process? [ 93 ] The judgment dismissing PBCN’s claim was granted by the Chambers judge employing the

summary judgment procedure provided for in

Part 7 of The Queen’s Bench Rules , entitled “Resolving Claims Without a Full Trial”. The evidence before the court consisted of affidavits, agreed facts and documents admitted by agreement. No viva voce evidence was heard. The Chambers Decision records that “all parties came to court arguing that this matter could be heard under the

summary judgment process” (at para 4). The Chambers judge also noted that, “[a]t the opening of this hearing all parties confirmed that they were satisfied that the matters before the court could be addressed in this fashion” (at para 5). [ 94 ] Canada challenges the process followed by the Chambers judge. Specifically, it alleges that he misidentified the applicable burdens of proof and, in any event, should not have used the

summary judgment process to decide the issues he did. In oral argument, Canada’s counsel described

summary judgment as a “special rule” that brings with it “special procedures”. In its factum, Canada argued that the Chambers judge erred because he failed to apply the “correct burdens of proof on

summary judgment motions throughout his decision”. Canada asserted that the “initial burden of proof on each substantive issue always rested with Saskatchewan and SaskPower, as

summary judgment applicants pursuant to Rules 7-2 and 7-3 of Saskatchewan’s Queen’s Bench Rules ”. [ 95 ] Canada’s overarching proposition is that, because the defendants applied for

summary judgment, they carried the burden of proof, even in relation to matters that PBCN, as plaintiff, would have had to prove had the case been tried in the usual way. In support of its submissions, Canada referred to the statement made by Layh J. in Saskatchewan Power Corporation v All Canada Crane Rental Corp. , 2019 SKQB 61 at para 33 , 90 CCLI (5th) 299 [ All Canada Rental ], that the “initial burden is placed upon the party moving for

summary judgment; the second burden is placed upon the party opposing

summary judgment” . Canada also relies on the judgments of this Court in Coppola v Lang , 2008 SKCA 83 , 311 Sask R 54, and Holmes v Jastek Master Builder 2004 Inc ., 2019 SKCA 132 , [2020] 6 WWR 386 [ Holmes ]. [ 96 ] As I will explain, Canada’s arguments are premised on a misunderstanding of how evidentiary onuses operate in a civil context and conflate the question as to whether a dispute is amenable for determination using the

summary judgment procedure with the issues in the lis itself. To understand these points, it is helpful to examine the process followed in this case and then place the authorities referred to by Canada in their proper context. [ 97 ] The applications before the Chambers judge were brought pursuant to Rule 7-2, which provides as follows: Application for

summary judgment 7-2 A party may apply, with supporting affidavit material or other evidence, for

summary judgment on all or some of the issues raised in

the pleadings at any time after the defendant has filed a statement of defence but before the time and place for trial have been set. [ 98 ] Rule 7-5(1) describes the circumstances in which

summary judgment may be granted, stating as follows: Disposition of application 7-5

(1) The Court may grant

summary judgment if: (

a) the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by

summary judgment and the Court is satisfied that it is appropriate to grant

summary judgment. [ 99 ] Rule 7-5(1) contemplates two different situations in which

summary judgment may be granted. Rule 7-5(1)(

a) deals with cases where the use of the

summary judgment procedure is contested. In that situation, the grant of judgment depends on the Court being “satisfied that there is no genuine issue requiring a trial ” (emphasis added). Rule 7-5(1)(

b) addresses cases where the parties agree to have all or part of a claim determined by the

summary judgment procedure. In that context, the court must be “satisfied that it is appropriate to grant

summary judgment ” (emphasis added). [ 100 ] There is a well-developed body of jurisprudence that assists in identifying when it may be said there is “no genuine issue requiring trial”. In this province, this case law is rooted in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ], decided in the context of the analogous Ontario rule of court. A key point of relevance to Canada’s argument is the following explanation offered by Karakatsanis J. in Hryniak as to when a genuine issue requiring trial will exist: [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 101 ] Case law has also recognized that an onus rests on a person seeking to employ the

summary judgment procedure over the objection of the opposing party. In Canada (Attorney General) v Lameman , 2008 SCC 14 , [2008] 1 SCR 372 [ Lameman ], the Supreme Court held that an applicant for

summary judgment (the defendant in that case) carries an initial burden, stating as follows: [11] … The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”[.] The defendant must prove this; it cannot rely on mere allegations or the pleadings[.] If the defendant does prove this, the plaintiff must either refute or counter the defendant’s evidence, or risk

summary dismissal[.] Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried … . (Authorities omitted, emphasis added) [ 102 ] Lameman therefore decides that, at least when a defendant seeks

summary judgment and there is a dispute as to whether there is a genuine issue requiring trial, the applicant seeking

summary judgment bears an evidentiary burden of proof to demonstrate that there is no genuine issue requiring trial. The statement in Lameman that a party “cannot rely on mere allegations or the pleadings” (at para 11) finds expression in Rule 7-3(1), which provides as follows: Evidence on application 7-3

(1) A response to an application for

summary judgment must not rely solely on the allegations or denials in the respondent’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. [ 103 ] Lameman was decided under a previous generation of rules of court. In the First Appeal Decision , this Court confirmed the continued vitality of the Lameman approach under this province’s current rules of court, at least when a defendant applies for

summary judgment. Justice Herauf explained this as follows: [30] Simply put, the onus and shifting burden of proof can be gleaned from the Rules. The applicant(

s) for

summary judgment (in this case all of the defendants) bear the evidentiary burden of showing there is no “genuine issue requiring a trial” (see Rule 7-2). The applicant must do so with supporting material or other evidence. In essence, an applicant for

summary judgment must put its best foot forward . Failure to do so may result in the dismissal of the application since the court will assume that the record contains all the evidence the parties would present if there was a trial: see Canadian Broadcasting Corporation v Whatcott , 2016 SKCA 17 at paras 17 and 27 , 395 DLR (4th) 278 . [31] If the applicant for

summary judgment discharges its evidentiary burden by proving there is no genuine issue which requires a trial, the burden shifts to the responding party to counter this by showing “there is a genuine issue requiring a trial” (see Rule 7-3(1)). Once again, the party responding to an application for

summary judgment must file supporting affidavits or evidence in support of its position and put its best foot forward. [32] Based upon this

interpretation, I find that the Chambers judge erred in holding that [PBCN] had the initial burden of showing there is a genuine issue for trial. However, even though the Chambers judge did err in this regard, it does not affect the eventual outcome in this case. In my view, the defendants met their burden and the evidential burden and onus shifted to [PBCN] in any event. (Emphasis added)

[ 104 ] I note as an aside, but to avoid any misunderstanding, that the question whether the initial onus resting on a plaintiff who applies for

summary judgment extends to negating the existence of a triable issue in connection with a defence which has been pleaded, but which the defendant must prove, was left open in Blue Hill Excavating Inc. v Canadian Western Bank Leasing Inc. , 2019 SKCA 22 at paras 23– 33 , [2019] 4 WWR 393. [ 105 ] Justice Layh made the statement relied upon by Canada from All Canada Rental in this overall context. All Canada Rental was a case where there was a dispute as to whether the

summary judgment process should be used to decide the substantive issues between the parties. Justice Layh was therefore analyzing whether the applicants for

summary judgment had discharged the initial onus of showing that there was no issue requiring a trial. This is evident from the sentence that immediately precedes the statement that is that relied upon by Canada: [33] … Post- Hryniak decisions, both in Saskatchewan and Ontario, make clear that initially deciding whether there is a genuine issue requiring a trial engages two levels of analysis necessitating a shifting burden of proof. The initial burden is placed upon the party moving for

summary judgment; the second burden is placed upon the party opposing

summary judgment. (Emphasis added) [ 106 ] I am also fortified in this conclusion by the references made by Layh J. to Lameman , the First Appeal Decision and Cicansky v Beggs , 2018 SKQB 91 , 25 CPC (8th) 182 [ Cicansky ], leave to appeal refused, Beggs v Cicansky (29 May 2018) Regina, CACV3231 (Sask CA). I will return to discuss Cicansky in a moment. [ 107 ] I offer this analysis to get to a simple, but important, point.

It is this: the burden or onus to which Canada refers is one that is applicable when there is a contest between parties as to whether a genuine issue exists that requires a trial for determination. However, in this case, there was no disagreement by the parties on this point. To the contrary, the parties agreed that the liability issues decided in the Chambers Decision should be resolved using the

summary judgment procedure. [ 108 ] The agreement by the parties to use the

summary judgment procedure therefore required the Chambers judge to be mindful of Rule 7-5(1)(b). As I have noted, when that rule applies, before judgment can be granted using this process, the court must be “satisfied that it is appropriate to grant

summary judgment ” (emphasis added). [ 109 ] In Casbohm v Winacott Spring Western Star Trucks , 2019 SKQB 44 , [2019] 9 WWR 714 [ Casbohm ] , affirmed 2021 SKCA 21 , Kalmakoff J. (as he then was) explained that Rule 7-5(1)(b) “may properly be interpreted as all parties agreeing that there is no genuine issue requiring a trial with respect to the issues upon which they seek

summary judgment” (at para 9). Still, in that situation, the use of the

summary judgment process is not automatic. Justice Kalmakoff explained the reasons for this as follows: [10] That said,

summary judgment is not automatic just because all parties agree that a matter should be determined that way. A court should grant

summary judgment under Rule 7-5(1)(

b) only if doing so results in a fair process that allows for just adjudication of the issues between the parties : Magna Electric Corp. v Tesco Electric Ltd. , 2015 SKQB 35 , 469 Sask R 15 . The purpose of the rules relating to

summary judgment is to eliminate unnecessary trials, not to eliminate all trials. While the

summary judgment rules must be interpreted broadly, in a way that favours proportionality and fair access to affordable, timely and just adjudication of claims ( see Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ] and Pervez v Caskey , 2013 SKQB 377 , [2013] 12 WWR 794 ), they must not be applied in a fashion which compromises the fairness of the procedure or the justness of the outcome . (Emphasis added) The Ontario Court of Appeal came to the same conclusion in Royal Bank of Canada v 1643937 Ontario Inc. , 2021 ONCA 98 at para 26 , 145 OR (3d) 561. [ 110 ] Rules 7-5(1)(

a) and 7-5(1)(

b) therefore reach the same end point. Under both rules, the court should only grant

summary judgment if it is satisfied that it is able to reach a fair and just determination on the merits. However, in the context of this case, the fact that the parties agreed on the use of the

summary judgment procedure meant that neither party bore an onus, initial or otherwise, of satisfying the court that the use of the procedure was justified. The resolution of that question was left to the Chambers judge, in keeping with Rule 7-5(1)(

b) and the direction given in Casbohm . [ 111 ] None of this was lost on the Chambers judge. The Chambers Decision reveals plainly that, notwithstanding the agreement of the parties,

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