Tuesday, January, 13, 2026

In a decision delivered on December 5, 2025, the Federal Court (the “Court”) in Shamattawa First Nation v Canada (Attorney General),¹ found that Canada owes a sui generis and ad hoc fiduciary duty, as well as common law duty of care, to First Nations to take reasonable measures to provide them with, ensure they were provided with, or refrain from barring, adequate access to drinking water that is safe for human use.  In very certain language, the Decision reads “As I have found that access to clean, safe drinking water on reserve is an aboriginal interest, consequently Canada owes a sui generis and ad hoc fiduciary duty to the Class both as individuals and to First Nations communities in a representative capacity.”² 

The decision follows from a national class action brought by Chief Jordna Hill and Shamattawa First Nation (the “Representative Plaintiffs”) to address the continued suffering by First Nations across Canada from a lack of access to clean, safe, and reliable drinking water on reserve. The Representative Plaintiffs are seeking immediate solutions to address long-term drinking water advisories on reserve and compensation for the harms suffered by individuals and First Nations.  

Olthuis Kleer Townshend LLP is pleased to act for the Representative Plaintiffs in this case alongside McCarthy Tétrault LLP. The team working on this matter has included Kevin Hille, Bryce Edwards, Jaclyn McNamara, James Shields, Nancy Carlson Jones, Lo Stevenson, and Chanel Carlson.   

WHAT IS THIS CASE ABOUT 

This is not the first time Canada has been sued for failing to address prolonged drinking water advisories on First Nations reserves.  

On December 22, 2021, The Federal Court and the Court of King’s Bench of Manitoba issued a joint decision approving an agreement to settle class action litigation (“Settlement Agreement”)  brought by Tataskweyak Cree Nation, Curve Lake First Nation, and Neskantaga First Nation, for failing to ensure reliable access to clean water for First Nations and their members.³ We can refer to this 2021 ruling as the Tataskweyak decision.   

Some highlights of the Tataskweyak Settlement Agreement were over 7 billion dollars in funding commitments for both compensation and prospective relief; a commitment to modernize and improve Canada’s First Nations drinking water legislation; and a renewed commitment to Canada’s Action Plan to lift all long-term drinking water advisories. Despite the promises made in the 2021 Settlement Agreement, and progress in some areas, First Nations continue to suffer from a lack of access to clean, safe, and reliable drinking water on reserve. This is why the Representative Plaintiffs brought their case in Shamattawa. For more information about either of these cases see Class Action Litigation on Drinking Water Advisories on First Nations Reserves on the OKT website.  

The Shamattawa Class 

The Shamattawa class action picks up where Tataskweyak left off. It seeks additional redress from Canada for the suffering and hardships of First Nations and their members who have continued to be deprived of safe and reliable drinking water. In Tataskweyak, eligible class members were only compensated for drinking water advisories up to June 20, 2021. The Shamattawa class action seeks compensation for drinking water advisories that continued or commenced after June 20, 2020.  

The Federal Court certified the class action as a class proceeding on March 14, 2023. The certified class includes (“Class Members”): 

(a) Persons who:

1. 1. are members of a First Nation, and whose First Nations Lands were subject to a drinking water advisory (whether a boil water, do not consume, or do not use advisory, or the like) that lasted at least one year and continued or commenced after June 20, 2021; and,
   2. after June 20, 2020, ordinarily resided on First Nations Lands for a period of at least one year while such First Nation Lands were subject to a drinking water advisory that lasted at least one year; and, 

(b) Shamattawa First Nation, and other Impacted First Nations who opt into the class action.

Many, but not all, of the certified Class Members in Shamattawa were also class members in Tataskweyak.   

Overview of the Court’s Decision  

The Federal Court’s decision in Shamattawa deals strictly with the Stage I Common Issue question of whether Canada owes a duty to Class Members to take reasonable measures to provide them with, or ensure they were provided with, or refrain from barring, adequate access to drinking water that is safe for human use.⁴ The Stage II questions, which weighs the scope of Canada’s duties, potential breaches of those duties, and remedies, will be heard and decided at a later date.  

The Stage I Common Issue question and the parties’ positions in Shamattawa are virtually identical to those in St. Theresa Point First Nation v His Majesty the King (“St Theresa Point”).⁵ Justice Favel, who presided over both summary judgement hearings, released the decisions concurrently. Similarly, because both class actions were argued and decided on the same legal basis—that Canada owes  fiduciary and common law duties and violated Class Members’ Charter rights—the discussion of the legal issues here mirrors the analysis set out in our earlier blog post on St. Theresa Point.⁶ 

1. Canada Has Sui Generis and Ad Hoc Fiduciary Duties Class Members

The Court found that Canada owes both a sui generis and an ad hoc fiduciary duty to the Class Members for the reasons below. 

Sui Generis Finding 

A sui generis fiduciary duty arises when there is: 

1. A specific or cognizable Aboriginal interest; and,
2. A Crown undertaking of discretionary control over that interest.⁷

Justice Favel found that both parts of the test were met. He explained that the relationship to water on reserve reflects and is part of the important relationship Aboriginal communities have to both water and the land. It arises from Aboriginal peoples’ prior use and occupation of their traditional territories and, later, the reserve lands set aside under the Indian Act. This interest, like the land itself, is unmistakably Indigenous.⁸ He further found that Canada has taken control over this interest though its funding requirements and policies that restrict the Class Members’ ability to respond independently to their drinking water crises.⁹ 

 Ad Hoc Finding 

An ad hoc fiduciary duty will be found where: 

1. The fiduciary makes an undertaking, whether express or implied, to act in the best interests of the beneficiary;
2. The beneficiary, which can be a person or a class of persons, is vulnerable to a fiduciary’s control; and,
3. A legal or substantial practical interest of the beneficiary can be adversely affected by the fiduciary’s exercise of discretion or control.¹⁰

Justice Favel found the test for an ad hoc fiduciary duty had also been met, based on his finding that Canada had undertaken to act in the best interest of First Nations.¹¹  

Although the Court found that fiduciary duties relating to the provision of adequate drinking water on reserve generally exist, it has not yet determined whether Canada breached these duties. This issue will be addressed at Stage II.  

2. Canada Owes a Duty of Care to Class Members

The Court applied the well-established Anns/Cooper test and concluded that a novel duty of care arises in this case.¹² Under the test, the Representative Plaintiffs must establish a relationship of proximity such that Canada’s failure to take care could result in reasonably foreseeable harm. If successful, a duty of care will be recognized unless there is a compelling policy reason not to do so.  

In this case, the Court found that the existence of fiduciary duties owed to Class Members, the historical relationship between the Class Members and Canada, and Canada’s prolonged involvement in drinking water on reserve together established a sufficient “relationship of proximity.” The content of the duty is also informed by the honour of the Crown. 

3. Sections 2, 7 and 15 of the Charter of Rights and Freedoms are Engaged

In addition to fiduciary and common law duties, the Representative Plaintiffs argued that Canada may be liable to Class Members for breach of Class Members’ Charter Rights to Freedom of Religion, Equality, and Life, Liberty, and Security of the person under Sections 2(a), 15, and 7, respectively.  

While the Court left the question of whether these rights were breached to Stage II, it agreed that these Charter provisions are engaged under Section 32, which sets out when the Charter applies. Justice Favel also found that the circumstances of the case could constitute the kind of “special circumstances” capable of grounding a positive obligation on Canada to protect the Section 7 rights of Class Members.¹³  

4. The Representative Plaintiffs Cannot Seek Remedies under Section 36 of the Constitution Act

The Representative Plaintiffs further argued that section 36(1)(c) of the Constitution Act requires Canada to provide First Nations Class Members and their members with clean drinking water. That provision commits Canada, and the provinces to ensuring “essential public services of reasonable quality to all Canadians.”¹⁴  

The Court rejected this argument, finding that Section 36 is meant to address equalization between the federal and provincial levels of government. Justice Favel noted that there is no existing case law supporting its application to First Nations in this context.¹⁵  

What the Shamattawa decision means  

What does this mean? The Shamattawa decision confirms that Canada owes Class Members a legal duty to take reasonable measures to provide, ensure access to, or refrain from barring, access to drinking water that is safe for human use. The scope and content of those duties have not yet been determined, nor has the Court decided whether those duties were breached or what remedies may be available. These questions would be addressed in Stage II of this litigation. 

However, Canada has decided to appeal the December 5th, 2025, decision. Canada filed a notice to appeal on January 5th, 2026, seeking to have the decision overturned. The Federal Court of Appeal will set a date to hear Canada’s appeal, most likely at some point in 2026. This means the questions to be resolved in Stage II will have to wait until after the appeal of the Stage I is resolved.  

OKT will continue to post updates on Class Action Litigation on Drinking Water Advisories on First Nation Reserves webpage.  

[1] Shamattawa First Nation v Canada (Attorney General), 2025 FC 1927 [Shamattawa].

[2] Shamattawa at para 190.

[3] Tataskweyak Cree Nation v Canada (Attorney General), 2021 FC 1415 [Tataskweyak].

[4] Shamattawa at para 3.

[5] St. Theresa Point First Nation v. Canada, 2025 FC 1926 [St. Theresa Point]. 

[6] OKT LLP and McCarthy Tetrault LLP are acting on behalf St. Theresa Point First Nation, Chief Emeritus Elvin Flett, Sandy Lake First Nation, and Chief Delores Kakegamic to represent the class of remote First Nations experiencing severe effects of the on-reserve housing crisis. For information about the St. Theresa Point class action see First Nations Housing Class Action on OKT’s website.

[7] St. Theresa Point at para 251.

[8] Shamattawa at para 177.

[9] Shamattawa at para 178, see also St. Theresa Point at paras 154-175.

[10] Shamattawa at para 179, see also St. Theresa Point at para 177.

[11] Shamattawa at para 179, see also St. Theresa Point at paras 193-198.

[12] Shamattawa at para 180, see also St. Theresa Point at paras 245-254.

[13] Shamattawa at para 186.

[14] Shamattawa at para 163, 181, see also St. Theresa Point at para 286.

[15] Shamattawa at para 181, see also St. Theresa Point at para 303.