The struggle for clean drinking water in First Nations communities has become a pressing issue in Canada. Many First Nations have been living under long-term boil water advisories, raising questions about the government’s role in ensuring access to this basic human right. The situation has led to a national class-action lawsuit, bringing attention to the complex relationship between First Nations and the federal government regarding water access.
The legal battle highlights the gap between public statements made by government officials and the position taken in court. This disconnect has sparked debate about Canada’s legal obligations to First Nations communities. As the case unfolds, it sheds light on the challenges faced by First Nations in securing clean water and the government’s stance on its responsibilities in addressing this crisis.
The Lawsuit
Shamattawa First Nation, under boil water advisory since 2018, launched a national class-action lawsuit against the federal government in 2022. Chief Jordna Hill leads the case on behalf of all First Nations members whose communities were subject to drinking water advisories on or after June 20, 2020. The lawsuit aims to establish clean water as a basic human right for First Nations. It describes the current conditions as an urgent human rights crisis that needs immediate attention.
Government’s Legal Position
The federal government argues it has no legal duty to ensure First Nations have clean drinking water. In its statement of defense, Canada claims that supporting the delivery of potable water to First Nations is a discretionary political decision. The government’s lawyers describe it as a matter of good governance rather than a legal obligation. This stance contradicts public statements made by Liberal ministers suggesting otherwise.
First Nations’ Argument
Shamattawa First Nation and its supporters argue that access to clean water is a fundamental human right. They aim to change the government’s notion that providing clean water is merely discretionary. First Nations leaders express disappointment and frustration at having to fight for such a basic necessity. The plaintiffs seek to establish a legal duty for the government to ensure clean drinking water in First Nations communities.
Legal Proceedings
The case is being heard in Federal Court in Ottawa. Federal Court Justice Paul Favel, who grew up in relative poverty on Poundmaker Cree Nation in Saskatchewan, is presiding over the case. Justice Favel has personal experience with water access issues, having spent part of his childhood without running water. The judge reserved his decision following three days of arguments in the $1.1-billion national class-action lawsuit.
Scope of the Lawsuit
Shamattawa First Nation is leading the case on behalf of itself and 59 other communities. The lawsuit seeks justice for all First Nations members countrywide whose community was subject to a drinking water advisory in effect on or after June 20, 2020. This case picks up where previous class actions, which led to an $8-billion settlement, left off. The plaintiffs have filed a motion for summary judgment on the question of Canada’s legal duty.
Plaintiffs’ Arguments
The plaintiffs argue that Canada has breached its legal obligations, causing a human rights crisis of hardship, illness, and suffering. They claim that the government has violated Section 7 of the Charter of Rights and Freedoms, which guarantees the right to life, liberty, and personal security. The plaintiffs assert that Canada violated this right by choosing the locations of First Nations’ lands, limiting their authority to manage infrastructure, and restricting their ability to obtain safe water themselves.
Government’s Legal Position
Canada maintains that it has no legal duty to ensure First Nations have clean water, only a political commitment adopted as good public policy. The government’s lawyers argue that while claimants may have an extreme need, Canada doesn’t deprive them of their interests because it doesn’t stop them from helping themselves. This stance has been criticized by the plaintiffs and their supporters as “profoundly disappointing” and legally incorrect.
Shared Responsibility Argument
The government’s counsel, Scott Farlinger, emphasized that Canada wants to highlight the shared responsibility for water delivery and the highly variable nature of water systems in First Nations communities. This argument aims to distribute responsibility between the federal government and First Nations. However, the plaintiffs’ counsel has characterized this approach as “repugnant” and as blaming the victims for their circumstances.
Economic Challenges
The court heard about the severe economic challenges facing communities like Shamattawa, which is described as one of the most economically disadvantaged in Manitoba. These communities grapple with high unemployment, limited resources, and a sense of hopelessness. The plaintiffs argue that these conditions make it virtually impossible for such communities to “help themselves” as suggested by the government’s argument.
Assembly of Manitoba Chiefs’ Response
The Assembly of Manitoba Chiefs (AMC) expressed disbelief at the federal government’s legal position. Acting Grand Chief Betsy Kennedy stated that it is unacceptable for thousands of First Nations people to lack access to clean drinking water in 2024. The AMC views Canada’s legal stance as contradicting its commitment to reconciliation. They argue that it undermines the rights of First Nations and dismisses important legal frameworks.
Solidarity Among First Nations
The AMC stands in solidarity with Shamattawa First Nation and 59 other First Nations that have opted into the lawsuit. This united front demonstrates the widespread impact of the water crisis across multiple communities. The solidarity among First Nations emphasizes the collective nature of the struggle for clean water. It also highlights the shared experiences of many communities facing similar challenges.
Criticism of Government’s Strategy
First Nations leaders condemn Canada’s legal strategy in the case. They argue that the government’s position appears to blame First Nations leaders for the long-term drinking water advisories. Chief Hill asserted that Canada sought to blame him and his band council for their community’s water issues. This approach has been criticized as shifting responsibility away from the federal government.
Systemic Underfunding
The water crisis is seen as a result of systemic underfunding and decades of neglect. First Nations argue that the current situation is a predictable consequence of inadequate support from the federal government. The lack of proper funding has led to insufficient infrastructure and resources to maintain clean water systems. This systemic issue is at the heart of the ongoing water crisis in many First Nations communities.
Reconciliation and Trust
The government’s legal position is viewed as undermining efforts at reconciliation between Canada and First Nations. Acting Grand Chief Betsy Kennedy stated that the stance violates the trust that First Nations are trying to build with the government. The contradiction between public acknowledgments and legal denials of responsibility is seen as hypocritical. This situation poses challenges to the process of rebuilding trust and advancing reconciliation.
UNDRIP and Charter Rights
The AMC argues that Canada’s legal position dismisses the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). They also claim it undermines the Canadian Charter of Rights and Freedoms. These international and national frameworks are seen as supporting First Nations’ right to clean water. The case brings attention to how these rights are interpreted and applied in the context of the water crisis.
Public Reaction
The case has drawn significant public attention and criticism of the government’s position. Chief Jordna Hill of Shamattawa First Nation has accused Canada of pointing the finger at First Nations instead of looking in the mirror. The Assembly of Manitoba Chiefs and other Indigenous organizations have expressed strong support for the plaintiffs and condemned the government’s legal strategy.
Next Steps in the Legal Process
Justice Paul Favel has reserved his decision following the three days of arguments. If the plaintiffs succeed in this phase, establishing Canada’s legal duty to provide clean water, the case will move to a second phase. This next stage would determine whether Canada has actually breached this duty. The outcome of this case could set a significant precedent for Indigenous rights and government responsibilities in Canada, potentially reshaping the relationship between First Nations and the federal government regarding essential services.
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