The Canadian government has a duty to ensure First Nations behind a class-action lawsuit have access to clean drinking water, a federal judge has ruled.
The case, the third major class-action lawsuit brought forward in recent years over unsafe water in First Nations communities, was filed by Shamattawa First Nation and its Chief, Jordna Hill, and was certified in 2023.
Shamattawa, a Treaty 5 First Nation in northern Manitoba, is a fly-in community that has faced “a near constant” drinking-water advisory since December of 2018, according to the decision filed on Friday by Federal Court Justice Paul Favel.
Fifty-nine other First Nations have joined the class action, which is seeking $1.1-billion in damages.
“To this day, First Nations have had to live in conditions unknown to the rest of Canadians, where access to clean drinking water is a luxury rather than a guarantee. It is emotional to see our voices and realities accepted by the court,” Chief Hill said in a statement.
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The case was divided into two parts, the first dealing with the question of whether the federal government had a duty to ensure that the members of Shamattawa First Nation and the other nations in the class action had “adequate access to drinking water that is safe for human use.” On Friday, the judge decided in favour of the plaintiffs and awarded them legal costs.
A second part of the case, yet to be decided, will seek judgment on remedies and other issues.
This case followed two previous class-action lawsuits in 2021, in which the Manitoba Court of King’s Bench and the Federal Court approved an $8-billion settlement over the government’s failure to ensure access to safe drinking water on reserves.
The government disputed the idea that the earlier lawsuits constituted “an admission of liability or a recognition of any legal duty or obligation” in this case.
Members of the Shamattawa community testified to experiencing stomach, kidney and liver illnesses that resulted from drinking tap water, and skin lesions and rashes after bathing in it. They also testified that the lack of safe water had prevented cultural and spiritual practices in the community, and affected their ability to teach those practices to young people.
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The 1908 relocation of the Shamattawa community to a reserve confined the First Nation to an area “a fraction in size” compared with its traditional territory, the judge noted in his decision, and made its members dependent on the government for water infrastructure development.
For decades, the community had no running water and no indoor plumbing. Because the aquifer underneath the community was found to be contaminated with methane, for years the government trucked water into Shamattawa.
Starting in the early 2000s, the federal government slowly built water and sewer infrastructure. But a local water-treatment plant had not been designed to handle the capacity needed for the entire community, and regularly suspended services.
Eliminating on-reserve boil-water advisories was a key Liberal promise during the 2015 federal election. Since then, 149 long-term drinking-water advisories have been lifted, but 38 remain, according to the Indigenous Services Canada website. Since April of 2016, the government has spent $5.07-billion on water and wastewater projects in First Nations communities.
The Shamattawa case involved more than 10,000 pages of evidence. Expert witnesses for the plaintiffs testified to the disparity in waterborne-disease rates on reserves, compared with the rest of Canada; government requirements for First Nations to select the lowest bidders when hiring technical experts for training and maintenance of water systems; and “archaic” formulas for calculating funding needed for water infrastructure on reserves.
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The judge noted that the submissions made by the plaintiffs in the case were nearly identical to those in another class-action lawsuit over the right to adequate housing on reserves.
Justice Favel also filed a separate ruling in that lawsuit on Friday, finding that the class – including residents of St. Theresa Point First Nation in northern Manitoba and of Sandy Lake First Nation in northern Ontario – faced housing shortages and unsafe conditions. That case will also examine breaches of the law and possible remedies in coming proceedings.
In his decision in the safe-drinking-water case, Justice Favel found that the plaintiffs established that the federal government has a unique “fiduciary duty concerning on-reserve access to safe drinking water.”
“This relationship to water on reserve reflects and is part of the important relationship that Aboriginal communities have both to water and to the land.”
Lawyer Michael Rosenberg said in an e-mailed statement on behalf of the First Nation that the ruling is “hugely important,” and that they are relieved but also disappointed it required a court to decide.
“For too long, the federal government has treated safe drinking water on reserve as a matter of charity,” Mr. Rosenberg wrote. “But the court has recognized that this is about fundamental rights. Those rights have to be recognized in new legislation to make sure that we finally break the vicious cycle of long-term drinking-water advisories.”
Mr. Rosenberg said his clients from the 2021 $8-billion class-action settlement will be in court this week to ensure that Canada is in compliance with the settlement. They are seeking a ruling that would compel the government to reintroduce the water legislation that died in Parliament last year.