Three years after Ottawa settled two class-action lawsuits over unsafe drinking water on First Nations for $8-billion, government lawyers will appear in Federal Court this week to fight a third class action that could add another $1-billion to the government’s ballooning First Nations water bill.
Shamattawa First Nation, a fly-in community located 750 kilometres northeast of Winnipeg, has faced a boil-water advisory since December, 2018. A statement of claim filed by the community and its Chief, Jordna Hill, claims treated water in the community commonly causes sores, rashes and boils.
“Time and again the federal government has promised to do better, and yet here we are, fighting in court for a basic human right,” Mr. Hill said in a statement sent to The Globe and Mail. “It is appalling that Canada has decided to battle First Nations on this issue, rather than come to the table as nation-to-nation partners.”
While the previous two class actions dealt with boil-water advisories issued before June 21, 2021, the Shamattawa action addresses advisories that continued beyond the cut-off date or commenced after it.
So far, more than 50 other First Nations have signed on to the class action, which claims $1.1-billion in damages.
If successful, the suit would establish safe drinking water on reserves as a right, rather than a matter of political will, said lawyer Michael Rosenberg, who worked on the settled cases and is representing Shamattawa.
Filed in 2022, the suit alleges that Canada breached its fiduciary duties, its duty of care and the Charter of Rights and Freedoms by failing to provide safe drinking water in the community.
Federal Court Justice Paul Favel certified the class action last year. This week, the two sides will argue the fundamental issue at the core of the case: Is Ottawa legally responsible to provide safe drinking water on First Nations?
Mr. Rosenberg contends that the Crown’s obligation arises from “Canada’s long and continuing involvement, not just in funding, but really managing and exercising de facto control over water on these reserves.”
In its statement of defence, Ottawa has countered that it has no “legal obligation or duty to the plaintiffs as Canada’s supports for First Nations are provided as a matter of good governance rather than legal duty.”
The promise to eliminate on-reserve boil-water advisories was central to the Liberal election platform when the party rose to power in 2015. Since then, the government has spent $4.29-billion on water and wastewater projects in First Nations, according to the Indigenous Services Canada website. That work has led to the lifting of 145 long-term drinking water advisories, but 33 remain.
The government says it has spent $25.6-million on recent improvements to the water system in Shamattawa, but the climate as well as siltation and methane in the groundwater have led to delays in lifting the advisory, which affects some 160 homes and 14 community buildings.
Indigenous Services Canada acknowledged The Globe’s request for comment on this story, but did not provide a response.
The NDP MP for the riding encompassing Shamattawa calls the government’s approach hypocritical. “This was core to the Liberal brand in terms of their commitment to reconciliation and First Nations,” Niki Ashton said. “And lo and behold, on one side of their mouths, they’re saying we’re committed to clean drinking water for First Nations, and, on the other, directing their lawyers to fight First Nations who are only seeking this basic right.”
Mr. Hill had been scheduled to attend the hearing in Ottawa this week but pulled out after the recent death of a son.
Shamattawa has been beset by tragedy over the years. The 1,500-person community declared a state of emergency last year owing to suicides. Mr. Hill has linked the water issue to suicide, saying Ottawa’s treatment of Shamattawa creates a sense of hopelessness.
Mr. Rosenberg said, “Community members feel like second-class citizens. The hope of this case is to do something to assert their rights, to establish their rights, so they don’t have to live like second-class citizens any more.”