Case information

Aboriginal law — Indian bands — Indian reserves — Fiduciary duty — Torts — Intentional torts — Trespass to land — Limitation of actions — Reserve land continuously flooded as a result of operation of hydroelectric dam — First Nation suing for breach of fiduciary duty and trespass — Chambers judge dismissing all claims as statute-barred by applicable provincial limitation periods — Court of Appeal allowing claim for continuing trespass to proceed under exception to limitations legislation — Whether doctrine of interjurisdictional immunity continues to apply to protect band’s right to possession of Indian reserve lands under Indian Act, R.S.C. 1985, c. I-5, from impairment by provincial laws — Whether scope of Minister’s authority under Indian Act, R.S.C. 1927, c. 98, and Indian Act, R.S.C. 1985, c. I-5, permits use or occupation of Indian reserve lands to permit flooding of lands without affected band’s consent or surrender — Whether common law doctrine of continuing trespass should be used to circumvent statutory limitation periods, and if so, what are the rules governing application of loophole — Whether doctrine of continuing trespass remains part of the law in Saskatchewan — If so, whether Court of Appeal erred in finding instance of continuing trespass on the facts of this case, and whether Saskatchewan could rely upon same limitation defences as Canada — Whether Canada’s permission to flood lands in 1939 crystallized claim into one for monetary damages only — The Limitation of Actions Act, R.S.S. 1978, c. L-15 [repealed], ss. 18, 40 — The Public Officers’ Protection Act, R.S.S. 1978, c. P-40 [repealed], s. 2(1)(a) — Indian (Soldier Settlement) Act, R.S.C. 1927, c. 98, s. 34 — Indian Act, R.S.C. 1985, c. I-5, ss. 18(1), 28(2).

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The plaintiffs, Peter Ballantyne Cree Nation (“PBCN”) et al., commenced an action against Canada, Saskatchewan, and the Saskatchewan Power Corporation (“SaskPower”), seeking declarations and damages for breach of the honour of the Crown, breach of fiduciary duties, and trespass (including continuing trespass), arising from the construction and operation of a nearby hydroelectric dam operated by SaskPower. The dam’s operation regularly results in a portion of PBCN’s reserve being continuously flooded, from the original operation of the dam in the 1940s to the present day. The defendants brought third party indemnity claims against the dam’s original builder and operator. The defendants also applied for summary judgment, arguing that all of PBCN’s claims should be dismissed by operation of applicable provincial limitation periods.

The chambers judge granted the defendants’ motion for summary judgment, and dismissed all claims against all defendants, including all third party claims; the chambers judge found that there was no triable issue as a result of the application of provincial limitations legislation. The Saskatchewan Court of Appeal allowed PBCN’s appeal in part, only to the extent of allowing PBCN to pursue its claim of trespass as against Saskatchewan and SaskPower, given that the trespass in question was “continuing” and therefore fell within an exception to the applicable provincial limitations legislation. The Court of Appeal remitted the claim of trespass (including issues related to consent and to damages, if any) back to the Court of Queen’s Bench, for determination. In all other respects, the Court of Appeal upheld the chambers judge’s decision to dismiss all other claims against all defendants and third party defendants. The Court of Appeal subsequently dismissed two applications for rehearing filed by both PBCN and SaskPower. PBCN, SaskPower and Saskatchewan all seek leave to appeal the Court of Appeal decision.