Decision Yet to Be Made on Canada's Legal Duty to Provide First Nations with Safe Water

Shamattawa First Nation, which has been under a boil water advisory since 2018, and its Chief Jordna Hill are pursuing the case for all First Nations members countrywide whose community was subject to a drinking water advisory in effect on or after June 20, 2020.

Shamattawa First Nation in northern Manitoba is seeking a judgment that Canada has a legal duty to ensure First Nations have access to potable water, as part of this class-action lawsuit filed in 2022.

The question of whether Canada has a legal duty to provide First Nations with safe drinking water is now in the hands of a judge who once described spending part of his childhood without running water himself.

Federal Court Justice Paul Favel, who has recalled growing up in relative poverty on Poundmaker Cree Nation in Saskatchewan, reserved his decision Wednesday, following three days of arguments in a $1.1-billion national class-action lawsuit in Ottawa.

Justice Canada lawyers say the federal government has no legal duty to ensure First Nations have clean drinking water, even if Liberal ministers publicly suggest otherwise,

It's the first hurdle Shamattawa First Nation must overcome as the remote northern Manitoba community, currently under a six-year boil water advisory, seeks justice for it and 59 other communities.

The plaintiffs say Canada has breached its legal obligations, causing a human rights crisis of hardship, illness and suffering.

In a reply argument on Wednesday, plaintiffs' counsel Michael Rosenberg condemned Canada's approach, calling it a "profoundly disappointing" one the court should not condone.

"It is actually illegal for Canada to subject its own employees, for any period, to the conditions that they expect class members to live with for years on end," said Rosenberg, of McCarthy Tétrault LLP in Toronto.

Canada says it has no legal duty to ensure First Nations have clean water, only a political commitment adopted as good public policy.

Canada's counsel Scott Farlinger suggested the plaintiffs should approach this reply with "some maturity and without unnecessary adjectives" and Canada has no legal obligation to provide First Nations with clean water.

Farlinger was specifically referencing Canada's defense against alleged breaches of Section 7 of the Charter of Rights of Freedoms, which guarantees the right to life, liberty and personal security. The plaintiffs say 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.

Farlinger explained the defense like this: "The claimant under Section 7 may have an extreme need, but Canada doesn't deprive you of your interests, because Canada doesn't stop you from helping yourself."

That argument will be characterized as cruel or mean-spirited but it's the discussion that section requires, Farlinger said.

Over three days, court heard that Shamattawa has grappled with a suicide epidemic and destructive fires in recent months, amid pervasive unemployment and a sense of hopelessness, alongside the water issues.

"I'm not going to characterize it as cruel or mean-spirited," Rosenberg said of Canada's argument.

"I'm going to characterize it as wrong."

In a letter to his MP last month, Shamattawa Chief Jordna Hill, a lead plaintiff, said Canada is pointing the finger at First Nations instead of looking in the mirror. Rosenberg echoed the sentiment on day one, accusing Canada of blaming the victims.

Farlinger rejected that argument, saying Canada wants to highlight the shared responsibility for water delivery and the highly variable nature of water systems in First Nations communities.

Rosenberg doubled down in reply, saying Canada is again arguing First Nations could have avoided their water crisis but chose not to marshal their own resources.

"The suggestion that class members are the author of their own misfortune is, as I say, repugnant," he said.

It's troubling that Liberal ministers, despite publicly acknowledging federal responsibility for the water crisis, continue to support a completely contrary position in court, said the Assembly of Manitoba Chiefs.

"This is a clear act of hypocrisy that is unacceptable," reads a statement from acting Grand Chief Betsy Kennedy.

For his part, Favel listened intently throughout the hearing, occasionally asking probing but respectful questions about their positions.

Favel previously served as deputy chief commissioner of the Saskatchewan Human Rights Commission and general counsel for the Federation of Sovereign Indigenous Nations, among other roles, his judicial questionnaire says.

Favel was appointed to the Federal Court of Canada in 2017 by then-attorney general and justice minister Jody Wilson-Raybould.

It's in this public questionnaire that Favel described growing up for part of his childhood without running water, with a wood stove for heating and cooking.

"It has taught me to understand poverty and the social consequences of poverty," he wrote.

Shamattawa and Hill are suing on behalf of all First Nations members countrywide whose community was subject to a drinking water advisory in effect on or after June 20, 2020.

The current 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.

If they win, the case would move to a second phase to decide whether Canada actually breached this duty.

In its statement of defense, Canada argued it does not "owe any legal obligations or duties to operate and maintain the plaintiffs' water systems," a statement that irked the AFN national chief. 

"I'm really appalled by the Department of Justice's comments when it comes to Shamattawa, and I know that Canada has to make things right with Shamattawa First Nation and many First Nations that are in that case," said Woodhouse Nepinak. 

"What First Nations leaders I think have made quite clear throughout this litigation is the disappointment and frustration of having to fight yet again for such a basic human right," said Allen Robert, an associate with McCarthy Tétrault LLP.

Indigenous Services Minister Patty Hajdu said at a news conference on April 28, 2022, that "Canada accepts the role that the government has played in First Nations' lack of access to clean drinking water."

But Canada now argues the comment, and others like it "was made in a particular context," shouldn't be taken out of context and doesn't provide a legal opinion.

Lifting all long-term boil water advisories on reserves by 2021 was one of Prime Minister Justin Trudeau's promises in 2015. There were 105 long-term drinking water advisories in November 2015. Thirty-three advisories were in place as of Sept. 28, according to government data.

Niki Ashton, the New Democrat MP whose riding includes Shamattawa, says Canada's arguments are shocking and hypocritical.

"I think any Canadian would be shocked that, in a country as wealthy as Canada, a country that has been seen to be a leader on human rights on the world stage, we're telling First Nations that they don't have a right to clean water," Ashton said in an interview.

"We're really seeing the dark underbelly of Canada, and I would say the hypocrisy of the Liberals."