SaskPower loses delay appeals in First Nations flooding lawsuits

SaskPower has lost appeals seeking to end two First Nations flooding lawsuits for delay, including a 2018 action in which Mathias Colomb Cree Nation seeks $800 million in damages.

In Mathias Colomb Cree Nation v. Saskatchewan Power Corporation et al., 2026 MBKB 136, released October 1, 2026, Justice Huberdeau of the Manitoba Court of King’s Bench held that an exchange between lawyers prevented SaskPower from relying on the three-year delay rule to dismiss the newer action. A companion ruling, 2026 MBKB 135, released the same day, rejected its delay arguments against a separate action begun in 1992.

Neither decision establishes that SaskPower caused the alleged harm or owes damages. The $800 million is the amount claimed in the 2018 action, not an award. The rulings address whether the proceedings should be dismissed for inactivity, not the merits of the land and treaty-rights allegations.

Two actions arising from the hydroelectric dispute

Mathias Colomb Cree Nation and Barren Lands First Nation began the earlier action against SaskPower, Canada and Manitoba in 1992. They allege that SaskPower’s Island Falls generating station and Whitesand Dam in Saskatchewan caused flooding and harm to their lands and treaty rights in the Reindeer Lake and Churchill River system.

Mathias Colomb’s participation in that action was stayed in 1993 pending standing issues. It launched the separate action in its own name in February 2018, seeking private-law remedies, including damages. The two October decisions do not lift the earlier standing-related stay or decide the underlying claims.

SaskPower moved in July 2021 to dismiss both actions for delay. Senior Associate Judge Clearwater refused in separate March 2024 decisions. Justice Huberdeau heard the appeals as fresh hearings: the associate judge’s experience and reasons deserved meaningful consideration, but the usual appellate deference did not apply.

The promise not to take default proceedings

The newer action turned on Manitoba’s Rule 24.02. It requires dismissal after three years without a significant advance, subject to specified exceptions. The exception at issue in that appeal applies where the parties expressly agreed to the delay.

After receiving the 2018 claim, SaskPower asked for an undertaking that it would not be noted in default of defence without reasonable advance written notice. It explained that retaining outside counsel and giving instructions could take time. Mathias Colomb’s lawyer gave that undertaking, and SaskPower acknowledged receipt. Similar assurances were provided to Canada and Manitoba.

No defendant filed a defence during the period at issue, and Mathias Colomb did not demand one. SaskPower argued that the undertaking was merely a professional assurance about notice, not a contract authorizing more than three years of inactivity. It had no express end date, defence deadline or reference to waiving the delay rule.

The judge disagreed. Earlier Manitoba decisions, including the Court of Appeal’s ruling in Blaze v. Rooke, supported treating comparable correspondence as an express agreement to delay until reasonable notice was given. Justice Huberdeau rejected SaskPower’s argument that those authorities could be disregarded because they had not expressly worked through every element of contract formation.

The judge also conducted that analysis independently. SaskPower requested time; Mathias Colomb agreed; and SaskPower confirmed the arrangement. Objectively, the exchange created binding obligations. SaskPower received time without facing default proceedings, while the First Nation received its forbearance from taking advantage of time limits expiring during the agreed delay.

The agreement would end when Mathias Colomb gave reasonable advance written notice of default, or when SaskPower filed its defence. Neither had happened. The judge also found the necessary parties had agreed and, alternatively, that Canada and Manitoba’s receipt of the same assurances met the requirement if their agreement was needed.

The finding was grounded in the particular correspondence and the factual and legal context of March 2018. It was not a declaration that every routine undertaking automatically suspends a lawsuit indefinitely.

Why the older action also survived

The companion decision examined both the three-year rule and Rule 24.01, which permits dismissal where delay has caused significant prejudice. Inordinate and inexcusable delay can give rise to a presumption of prejudice.

For the period SaskPower relied on under the three-year rule, the judge found that Barren Lands’ December 2018 summary-judgment materials significantly advanced the litigation. Although the motion had not been heard, its affidavits, legal brief and authorities gave defendants a clearer view of the case and narrowed the issues. SaskPower’s own motions and participation in procedural discussions in early 2019 also showed continuing progress.

The judge upheld alternative grounds for refusing dismissal. SaskPower’s participation after an earlier period of delay supported an exception to the rule, and the parties’ correspondence and agreed 2019 adjournment amounted to a standstill arrangement in the circumstances. The court also rejected using Rule 24.02 to dismiss only Mathias Colomb’s part of the action: unlike Rule 24.01, its wording addressed an action as a whole.

On the broader delay argument, the judge recognized that roughly 29 years without substantive advancement was, on its face, inordinate. But agreed pauses and procedural periods explained much of it. The remaining delay was excusable in light of exceptional hardships in the remote communities, including floods, fires, communication difficulties and the pandemic, together with the complexity of the land and treaty-rights issues.

SaskPower had not established significant litigation or other prejudice. The case depended substantially on historical documents rather than witness memories or credibility, and the company continued operating the station and dam.

Both appeals were dismissed. Costs may be addressed if the parties cannot agree; neither ruling fixes a costs amount. The decisions preserve the lawsuits against these delay challenges while leaving their substantive merits, remedies and unresolved procedural issues for further proceedings.