Judge reserves decision on Canada’s legal duty to provide First Nations with safe water

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.

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

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.

Earlier in the day, Canada’s counsel Scott Farlinger suggested the plaintiffs should approach this reply with “some maturity and without unnecessary adjectives.”

Farlinger was specifically referencing Canada’s defence 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 defence 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 is going to be characterized as cruel or mean-spirited but it’s the discussion that section requires, he said. 

Rosenberg countered that Shamattawa is one of the most economically disadvantaged communities in Manitoba.

“How does a community like that help itself?” he asked.

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.”

Arguments called ‘repugnant,’ ‘clear act of hypocrisy’

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 authors of their own misfortune is, as I say, repugnant,” he said.

On Tuesday, an organization representing all 63 First Nations in Manitoba said it’s in disbelief over the government’s stance.

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.

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.