Michel et al. v. Canada (Attorney General) et al., (2016) 485 Sask.R. 162 (CA)

• Judge: Ottenbreit, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 23, 2015
• Jurisdiction: Saskatchewan
• Citations: (2016), 485 Sask.R. 162 (CA);2016 SKCA 124

Michel v. Can. (A.G.) (2016), 485 Sask.R. 162 (CA);

    676 W.A.C. 162

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. OC.004

Chief Ronald Michel, Chief of the Peter Ballantyne Cree Nation, on His Own Behalf and on the Behalf of All Other Members of Peter Ballantyne Cree Nation, and Peter Ballantyne Cree Nation (appellants/plaintiffs) v. The Attorney General of Canada, the Government of Saskatchewan and Saskatchewan Power Corporation (respondents/defendants) and Hudson Bay Mining and Smelting Co. Limited and Churchill River Power Corporation Limited (respondents/third parties)

(CACV2633; 2016 SKCA 124)

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

Saskatchewan Court of Appeal

Ottenbreit, Herauf and Whitmore, JJ.A.

September 28, 2016.

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 and Saskatchewan Power Corp. (the defendants), both jointly and severally, alleging breach of honour of the Crown, breach of fiduciary duty, and trespass, including continuing 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 (chambers judge), in a decision reported 455 Sask.R. 60, granted summary judgment dismissing all claims, primarily on the basis that the claims were statute barred. The PBCN appealed, arguing that the actions revealed a genuine issue for trial and should not have been subject to summary dismissal.

The Saskatchewan Court of Appeal, for the most part, dismissed the appeal. The court disagreed with the chambers judge on only one issue, namely, the finding that there was no continuing trespass. The court opined that the evidence supported the claim of the PBCN that there was a continuing trespass by Saskatchewan and Sask Power. The court, therefore, set aside the dismissal of the claim for continuing trespass and permitted that claim to proceed. Otherwise, the appeal was dismissed.

Constitutional Law - Topic 2511

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

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - [See second Indians, Inuit and Métis - Topic 802 ].

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See second 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 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 (PBCN), 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 - A chambers judge, in the context of a summary judgment application, held that there was no constitutional obligation arising from the NRTA and the honour of the Crown was not engaged - The PBCN appealed - The Saskatchewan Court of Appeal dismissed the appeal - The court saw no error in the chambers judge's analysis - The NRTA was a constitutional document, but the court doubted that those provisions explicitly created an obligation toward an Aboriginal group that invoked its "special relationship" with the Crown - There was no explicit obligation that could engage the honour of the Crown - See paragraphs 33 to 53.

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 - A chambers judge, in the context of a summary judgment application, 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- PBCN appealed - The Saskatchewan Court of Appeal held that SaskPower could owe a duty to consult - However, the chambers judge did not err in concluding that there was no novel or new adverse impact on treaty rights that would give rise to the duty to consult - See paragraphs 54 to 75.

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 - A chambers judge, in the context of a summary judgment application, 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 - The PBCN appealed - The Saskatchewan Court of Appeal dismissed the appeal - Provincial limitations periods were applicable to cases involving the duty to consult - Therefore, whether or not the Cree Nation could recover damages for any past breaches of the duty to consult was determined by the relevant limitations period - Any past breach would have happened at the respective times of the dam construction, and the relevant limitation period had long since passed - See paragraphs 54 to 75.

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 - A chambers judge, in the context of a summary judgment application, 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 - PBCN appealed - The Saskatchewan Court of Appeal held that the PBCN had a sufficient interest in their reserve land that could give rise to a fiduciary duty and there was arguably a breach of the Crown's fiduciary duty in this case - However, even if the Crown did breach its fiduciary obligation, the appeal court agreed with the chambers judge that the claims were subject to provincial limitations legislation - Here the breach could be pinpointed to the specific point in time (1939) and that was when the PBCN's right to initiate proceedings arose - There was no ongoing breach of fiduciary duty - See paragraphs 76 to 93.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Saskatchewan Court of Appeal stated that "At the outset, it should be noted that with the rise of the honour of the Crown, the place of the sui generis fiduciary duty has changed. It is evident from Supreme Court jurisprudence post-Haida Nation that fiduciary obligations play a more circumscribed role in Aboriginal law than suggested in earlier cases such as R v Sparrow, [1990] 1 SCR 1075 ... In this respect, I endorse the views of Jamie D. Dickson in The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada ( ... 2015) at 91 that 'the generalized fiduciary obligation (in form, a principle that calls for honourable conduct) has been largely replaced by the honour of the Crown principle which effectively mandates the same thing.'" - See paragraph 83.

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.) - A chambers judge, in the context of a summary judgment application, 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 - The PBCN appealed - The Saskatchewan Court of Appeal rejected this ground of appeal, finding no error in the chambers judge's interpretation of s. 14.1 - See paragraphs 182 to 200.

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 - At issue was whether the doctrine of paramountcy rendered provincial limitations legislation inoperative or inapplicable because of an operational conflict with ss. 18 and 37 of the Indian Act - The Saskatchewan Court of Appeal noted that the Indian Act and the Saskatchewan limitations legislation could operate concurrently - Compliance with one was not defiance of the other - Dual compliance was possible - There was no operational conflict or frustration of federal purpose - See paragraphs 202 to 230.

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 - A chambers judge, in the context of a summary judgment application, 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 - The judge applied an analysis under s. 35 of the Charter instead - PCBN appealed - The Saskatchewan Court of Appeal dismissed the appeal - The court noted that Tsilhqot'in had decisively dealt with the application of interjurisdictional immunity to Aboriginal rights, finding that there was no room for interjurisdictional immunity in that area - The court held that similarly, the doctrine of interjurisdictional immunity was inapplicable to treaty rights - The court agreed with the chambers judge's conclusion that the doctrine of interjurisdictional immunity was not "applicable to the matter at hand" - See paragraphs 231 to 262.

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 second and third Indians, Inuit and Métis - Topic 802 ].

Limitation of Actions - Topic 1905

Actions - General - Breach of fiduciary duty - [See fourth Indians, Inuit and Métis - Topic 3 ].

Limitation of Actions - Topic 3162

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

Practice - Topic 5715

Judgments and orders - Summary judgments - Burden on applicant - [See Practice - Topic 5715.1 ].

Practice - Topic 5715.1

Judgments and orders - Summary judgments - Burden on respondent - The Peter Ballantyne Cree Nation (PBCN) alleged that two dams caused flooding on reserve land Chief Michel and the PBCN (the plaintiffs) commenced an action against Canada, Saskatchewan and Saskatchewan Power Corp. (the defendants), both jointly and severally, alleging breach of honour of the Crown, breach of fiduciary duty, and trespass, including continuing trespass, seeking both declaratory relief and damages - The defendants applied for summary judgment to determine whether the matter was statute barred by provincial limitations legislation - A chambers judge dismissed the application - The PBCN appealed, arguing that the chambers judge erred in holding that it had the burden of showing there was genuine issue for trial as set in the Queen's Bench Rules - The Saskatchewan Court of Appeal held that the chambers judge erred in holding that the PBCN had the initial burden of showing there was a genuine issue for trial - However, even though the chambers judge erred in that regard, it did not affect the eventual outcome in this case - Here, the defendants met their burden and the evidential burden and onus shifted to the PBCN in any event - See paragraphs 19 to 32.

Statutes - Topic 4514

Operation and effect - General principles - Interpretation Acts (incl. whether substantive or procedural) - [See first 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 - A chambers judge, in the context of a summary judgment application, 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 - 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 - PBCN appealed, arguing that the flooding qualified as a continuing trespass creating a new cause of action each day it was not remedied - The Saskatchewan Court of Appeal allowed the appeal - The evidence supported the claim that there was a continuing trespass - See paragraphs 94 to 148.

Counsel:

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

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

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

Mark Kindrachuk, Q.C., and Gwen MacIsaac, for the Attorney General of Canada;

Sacha Paul, for Hudson Bay Mining and Smelting Co. Limited and Churchill River Power Corporation Limited.

This appeal was heard on September 23, 2015, before Ottenbreit, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The following decision was delivered for the court by Herauf, J.A., on September 28, 2016.