Michel et al. v. Canada (Attorney General) et al., 2014 SKQB 327

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 07, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 327;(2014), 455 Sask.R. 60 (QB)

Michel v. Can. (A.G.) (2014), 455 Sask.R. 60 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.063

Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on behalf of all other members of Peter Ballantyne Cree Nation, and Peter Ballantyne Cree Nation (plaintiffs/respondents) v. The Attorney General of Canada, the Government of Saskatchewan and Saskatchewan Power Corporation (defendants/applicants) and Hudson Bay Mining and Smelting Co. Limited and Churchill River Power Corporation Limited (third parties)

(2004 QB No. 2182; 2014 SKQB 327)

Indexed As: Michel et al. v. Canada (Attorney General) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

October 7, 2014.

Summary:

The Peter Ballantyne Cree Nation (PBCN) alleged that two dams constructed in 1931 and 1942 and operated by the Churchill River Power Co. (CRPC) caused flooding on reserve land. After the dissolution of CRPC in 1981, the dams were operated by its sole shareholder, the Hudson Bay Mining and Smelting Co. (HBMS). In 1984 Saskatchewan Power Corp. took over operation of the dams. PCBN complained of the flooding as early as 1981. On December 20, 2004, Chief Michel and the PBCN (the plaintiffs) commenced an action against Canada, Saskatchewan (Province) and Saskatchewan Power Corp. (the defendants), both jointly and severally, alleging breach of honour of the Crown, breach of fiduciary duty and trespass. The plaintiffs sought both declaratory relief and damages. The CRPC and the HBMS were added as third parties. No further action was taken until September 24, 2013, when the plaintiffs filed an amended statement of claim. The defendants applied for summary judgment to determine whether the matter was statute barred by provincial limitations legislation (i.e., the Limitations of Actions Act or the Public Officers' Protection Act).

The Saskatchewan Court of Queen's Bench granted summary judgment dismissing all claims.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - [See first Indians, Inuit and Métis - Topic 802 ].

Crown - Topic 1604

Torts by and against Crown - Actions against Crown - Public authority protection legislation - Persons or acts protected - [See fourth Indians, Inuit and Métis - Topic 3 and Torts - Topic 3003 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - In 1930, Canada and Saskatchewan entered into the Natural Resource Transfer Agreement (NRTA), under which administration and control of the lands and resources of Canada, including water resources, were transferred to Saskatchewan - An exception to this transfer was any land designated as reserve land - Section 11 required Canada "to administer Indian Reserves for the benefit of the band or bands to whom they have been allotted" - The Peter Ballantyne Cree Nation, which alleged that hydroelectric dams were flooding its reserve, asserted that s. 11 should be interpreted so as to trigger the honour of the Crown - The Saskatchewan Court of Queen's Bench held that there was no constitutional obligation arising from the NRTA and the honour of the Crown was not engaged - See paragraphs 33 to 39.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Peter Ballantyne Cree Nation (PBCN) alleged that there was a continuing failure by the Crown to consult respecting the adverse impact that two dams were having on hunting, fishing and trapping rights because of flooding on their reserve - The Saskatchewan Court of Queen's Bench dismissed the claim that there was a present breach of the duty to consult because this matter could not be characterized as a continuing breach since there was no new or novel impairment of Aboriginal or treaty rights - Further, a failure to consult claim could not be brought against a third party, but only against the federal or provincial governments - Here, it was SaskPower, a separate entity, which had operative control over the dams since 1981 - SaskPower owed no fiduciary duty to PBCN and such a duty was required in order for the consultation requirement to be engaged - See paragraphs 40 to 44.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Peter Ballantyne Cree Nation (PBCN) alleged that there was no Crown consultation respecting the construction of two dams near its reserve in 1931 and 1942 - The PBCN argued that damages for the past breaches of the duty to consult could not be statute barred because such damages arose out of the honour of the Crown and a breach of the honour of the Crown was not statute barred - The Saskatchewan Court of Queen's Bench rejected this argument - Claims for damages for breach of the duty to consult were to be treated as any other claim for damages and could be statute barred - See paragraphs 45 to 48.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Peter Ballantyne Cree Nation (PBCN) alleged that there was a fiduciary duty owed to PBCN by Canada respecting the issuance of licences respecting the construction of the Whitesand dam near its reserve in 1942 - PBCN alleged that the dam caused continuous flooding on its reserve land - The Saskatchewan Court of Queen's Bench held that PBCN could pursue a claim for past breach of fiduciary duty subject to limitations issues; but this was not a continuing fiduciary situation - However, the court determined that PBCN's claim for past breach of fiduciary duty was barred by s. 2(1)(a) of the Public Officers' Protection Act - See paragraphs 49 to 78.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - A hydroelectric dam completed in 1942 caused flooding on reserve land possessed by the Peter Ballantyne Cree Nation (PBCN) - In a statement of claim issued in 1984, the PBCN sued Canada, Saskatchewan and Saskatchewan Power, asserting trespass, failure to consult and breach of fiduciary duty - PCBN argued that provincial limitations legislation did not apply based on the doctrine of interjurisdictional immunity - The Saskatchewan Court of Queen's Bench held that the application of that doctrine had been greatly narrowed by the Tsilhqot'in Nation v. B.C. case (SCC 2014) - The court held that it was bound by that proclamation and PBCN was precluded from claiming interjurisdictional immunity by virtue of impairment of Aboriginal or treaty rights - See paragraphs 105 to 116.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - A hydroelectric dam completed in 1942 caused flooding on reserve land possessed by the Peter Ballantyne Cree Nation (PBCN) - In a statement of claim issued in 1984, the PBCN sued Canada, Saskatchewan and Saskatchewan Power, asserting trespass, failure to consult and breach of fiduciary duty - PCBN argued that provincial limitations acts did not apply because they infringed Aboriginal or treaty rights - The Saskatchewan Court of Queen's Bench rejected this argument - See paragraphs 117 to 127.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - A hydroelectric dam completed in 1942 caused flooding on reserve land possessed by the Peter Ballantyne Cree Nation (PBCN) - In a statement of claim issued in 1984, the PBCN sued Canada, Saskatchewan and Saskatchewan Power, asserting trespass, failure to consult and breach of fiduciary duty - PCBN argued that provincial limitations acts did not apply because it not only precluded them from receiving a remedy but also acted to extinguish the right of possession and of hunting, fishing and trapping on the flooded land - They argued that this resulted in a derogation or abrogation of rights contrary to s. 14.1 of the Interpretation Act (Sask.) - The Saskatchewan Court of Queen's Bench rejected this argument, holding that s. 14.1 was not a substantive provision, but was merely a rule of construction contained in an interpretive act - See paragraphs 128 to 147.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - [See third and fourth Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5406

Lands - General - Application of provincial laws - [See first Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 3162

Actions in tort - Trespass or injury to property - When time begins to run - [See Torts - Topic 3003 ].

Statutes - Topic 4514

Operation and effect - General principles - Interpretation Acts (incl. whether substantive or procedural) - [See third Indians, Inuit and Métis - Topic 802 ].

Torts - Topic 3002

Trespass - Trespass to land - What constitutes - [See Torts - Topic 3003 ].

Torts - Topic 3003

Trespass - Trespass to land - Interference with use of land - The Peter Ballantyne Cree Nation (PBCN) alleged that flooding from a hydroelectric dam built in the 1940s and now operated by SaskPower constituted a trespass - PBCN alleged that the trespass was a continuing tort, and therefore not statute barred - PBCN also argued that with each continuing trespass there was a continuing breach of certain aboriginal rights - The Saskatchewan Court of Queen's Bench held that because there was no continuing harm and no "structure or object" that had not been removed there was no continuing tort of trespass, and consequently no continuing breach of Aboriginal or treaty rights - Any claim for trespass or breach would have to have been made at the time of the discovery of material damage, here 1942 when the dam was completed - In any event, the claim was now statute barred pursuant to s. 2(1)(a) of Public Officers' Protection Act - See paragraphs 79 to 92.

Cases Noticed:

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 30].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 31].

Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 33].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 34].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 40].

Rio Tino Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 47].

McCallum et al. v. Canada (Attorney General) et al. (2010), 353 Sask.R. 269; 2010 SKQB 42, refd to. [para. 47].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 50].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 54].

Basque v. Woodstock Indian Band (1996), 175 N.B.R.(2d) 241; 446 A.P.R. 241 (C.A.), refd to. [para. 61].

Maloney v. Eskasoni Indian Band (2009), 278 N.S.R.(2d) 298; 886 A.P.R. 298; 2009 NSSC 177, refd to. [para. 61].

Downer (W.) Holdings Ltd. et al. v. Red Pheasant First Nation (2012), 408 Sask.R. 110; 2012 SKQB 468, refd to. [para. 61].

Clayton v. Lower Nicola Indian Band et al., [2013] B.C.T.C. Uned. 162; [2013] 8 W.W.R. 375; 2013 BCSC 162, refd to. [para. 62].

First Nations University of Canada v. University of Regina Faculty Association, [2009] 2 W.W.R. 193; 320 Sask.R. 46; 444 W.A.C. 46; 2008 SKCA 162, refd to. [para. 70].

Qualley v. Day, [1929] 2 D.L.R. 928 (Sask. C.A.), refd to. [para. 79].

Plaunt v. Renfrew Power Generation Inc., [2011] O.T.C. Uned. 4087; 7 R.P.R.(5th) 304; 2011 ONSC 4087, refd to. [para. 79].

Chaudière Machine and Foundry Co. v. Atlantic Railway Co. (1902), 33 S.C.R. 11, refd to. [para. 83].

Roberts v. Portage la Prairie (City), [1971] S.C.R. 481, refd to. [para. 84].

Williams v. Mulgrave (Town) et al. (2000), 183 N.S.R.(2d) 147; 568 A.P.R. 147; 2000 NSCA 24, refd to. [para. 85].

Johnson v. British Columbia Hydro and Power Authority (1981), 123 D.L.R.(3d) 340 (B.C.S.C.), refd to. [para. 89].

R.J.G. v. Canada (Attorney General), [2006] 1 W.W.R. 599; 249 Sask.R. 244; 325 W.A.C. 244; 2004 SKCA 102, refd to. [para. 98].

Popowich v. Saskatchewan et al. (2001), 213 Sask.R. 282; 260 W.A.C. 282; 2001 SKCA 103, refd to. [para. 99].

McGillivray v. Popowich - see Popowich v. Saskatchewan et al.

Des Champs v. Conseil des écoles séparées catholiques de langue fançaise de Prescott-Russell et al., [1999] 3 S.C.R. 281; 245 N.R. 201; 125 O.A.C. 279, refd to. [para. 100].

Peepeekisis Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) (2013), 448 N.R. 202; 2013 FCA 191, refd to. [para. 100].

F.P. v. Saskatchewan, [2005] 3 W.W.R. 257; 249 Sask.R. 42; 325 W.A.C. 42; 2004 SKCA 59, refd to. [para. 100].

William v. British Columbia et al., [2014] 7 W.W.R. 633; 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 107].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Derrickson v. Derrickson et al., [1986] 1 S.C.R. 285; 65 N.R. 278, refd to. [para. 112].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 114].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 117].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 132].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 139].

Ravndahl v. Saskatchewan et al., [2007] 10 W.W.R. 606; 299 Sask.R. 162; 408 W.A.C. 162; 2007 SKCA 66, refd to. [para. 142].

Johnson v. Johnson et al. (2012), 399 Sask.R. 196; 552 W.A.C. 196; 2012 SKCA 87, refd to. [para. 143].

Neudorf Estate, Re, [2013] 3 W.W.R. 349; 407 Sask.R. 156; 2012 SKQB 463, refd to. [para. 144].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 35 [para. 111].

Constitution Act, 1982, sect. 91(24) [para. 111].

Interpretation Act, S.S. 1995, c. I-11.2, sect. 14.1 [para. 128].

Limitations of Actions Act, R.S.S. 1978, c. L-15, generally [para. 96].

Limitations of Actions Act, S.S. 2004, c. L-16.1, sect. 3(2) [para. 95].

Public Officers' Protection Act, R.S.S. 1978, c. P-40, sect. 2(1)(a) [para. 96], sect. 2(1)(b) [para. 97].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (5th Ed. 1977), para. 21 [para. 89].

Counsel:

Thomas Berger, Q.C., Harley Schachter and Micah S. Clark, for the plaintiffs;

Mark R. Kindrachuk, Q.C., and Gwendoline A. MacIsaac, for the Attorney General of Canada;

P. Mitch McAdam, Q.C., and Macrina K.C.M. Badger, for the Government of Saskatchewan;

James S. Ehmann, Q.C., and Diana K. Lee, for the Saskatchewan Power Corporation;

Sacha R. Paul, for the Hudson Bay Mining and Smelting Co. Limited.

This matter was heard before R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on October 7, 2014.