Class Action Litigation on Drinking Water Advisories on First Nations Reserves

For a French version of this information, please click here.

Summary

Acting on behalf of First Nations, Olthuis, Kleer, Townshend LLP along with McCarthy Tétrault LLP have commenced national class action litigation against the Attorney General of Canada for failing to address prolonged drinking-water advisories on First Nations reserves across Canada. The members of these communities are forced to live without access to clean and safe drinking water. The key allegation is that Canada has breached its obligations to First Nations and their members by failing to ensure that reserve communities have clean water.

It is further alleged that Canada has been negligent, breached its fiduciary duties, breached the honour of the Crown, and breached various rights under the Canadian Charter of Rights and Freedoms.

The litigation seeks to advance the rights and well-being of First Nations communities and their members by:

  1. Obtaining compensation for individuals and communities that have suffered from a lack of reliable access to clean water; and
  2. Obtaining a declaration that Canada has an ongoing responsibility to work with First Nations to provide access to clean water. This includes requiring Canada to construct and fund appropriate water systems for First Nations communities.

The class includes all members of First Nations whose communities were subject to a drinking water advisory, including a boil water advisory, do not consume advisory, or do not use advisory, which lasted at least one year from November 8, 1995 to the present. Class members must have been alive two years prior to this action being commenced to be eligible for the compensation sought.

Additionally, First Nations Bands may opt into the class action to advance the rights of their community.

If you or your First Nation would like more information, please contact Class Counsel at water@oktlaw.com.


Case Updates

Most Recent Update (March 7, 2022)

SUMMARY 

The claims process is now open. Please visit www.firstnationsdrinkingwater.ca for details. 

In 2019, Neskantaga First Nation, Curve Lake First Nation and Tataskweyak Cree Nation – with the help of law firms Olthuis Kleer Townshend LLP (OKT) and McCarthy Tétrault LLP (McCarthy Tétrault) – started national class action lawsuits to address long-term drinking water advisories in their communities and other First Nations across Canada. The lawsuits were certified in both the Court of Queen’s Bench of Manitoba and the Federal Court of Canada (the Courts).  

The lawsuits address Canada’s failure to take all reasonable steps to ensure that First Nations reserves have adequate access to safe drinking water. The lawsuits attempt to force Canada to immediately fix and meaningfully address ongoing issues with drinking water that continue to harm First Nations people from coast to coast. The lawsuits also seek financial compensation for difficulties community members have experienced from a lack of safe drinking water. 

On 27 July 2021, Canada, Neskantaga First Nation, Curve Lake First Nation, and Tataskweyak Cree Nation signed an Agreement in Principle setting out the framework for a settlement agreement with Canada. A final Settlement Agreement was signed shortly after, and approved by the courts on 22 December 2021.  

The Settlement Agreement includes:  

  • approximately $1.5 billion in compensation for individuals who have gone without clean, safe drinking water;  
  • $400 million in compensation for First Nations who have endured a long-term drinking water advisory;  
  • a minimum $6 billion commitment to bring reasonable access to safe drinking water on reserve, suitable for everyday use;  
  • an Action Plan to lift all long-term drinking water advisories;  
  • the creation of a First Nations Advisory Committee on Safe Drinking Water;  
  • modernization of legislation to introduce strong standards for safe drinking water on First Nation lands, supported by the First Nations Advisory Committee; and,  
  • $8 million in support for First Nations who wish to develop their own water governance tools.  

 

CALL FOR APPLICATIONS TO JOIN THE FIRST NATIONS ADVISORY COMMITTEE ON SAFE DRINKING WATER 

The settlement agreement includes $20 million in funding for the First Nations Advisory Committee on Safe Drinking Water. The Membership of the committee will reflect the diversity of First Nation Class Member communities, languages, gender, geographies, skills, expertise, and experience with water insecurity.  

To apply, submit the form linked here. We look forward to receiving your application.  

 

QUESTIONS? 

Please visit the Claim’s Administrator’s website for a list of frequently asked questions. FAQ – First Nations Drinking Water.

The Claims Administrator will be your first point of contact for any questions related to the claims process or claims form. If you have a legal question related to the settlement agreement, please reach out at counsel@firstnationsdrinkingwater.ca 

 

KEY DOCUMENTS 

COURT DECISION  

SETTLEMENT AGREEMENT AND ADDENDUM  

STATEMENTS OF CLAIM 

SUMMARY AGREEMENT “EXPLAINER”  

 

Previous Updates

On July 30, 2021, the Government of Canada agreed to settle this action for approximately $8 billion in response to prolonged drinking-water advisories on First Nations reserves across Canada.

The proposed settlement, which still requires court approval, will include the following terms:

  • $1.5 billion in compensation for individuals deprived of clean drinking water;
  • the creation of a $400 million First Nation Economic and Cultural Restoration Fund;
  • a renewed commitment to Canada’s Action Plan for the lifting of all long-term drinking water advisories;
  • a commitment of at least $6 billion to support reliable access to safe drinking water on reserve;
  • planned modernization of Canada’s First Nations drinking water legislation;
  • the creation of a First Nations Advisory Committee on Safe Drinking Water; and
  • support for First Nations to develop their own safe drinking water by-laws and initiatives.

McCarthy Tétrault LLP and Olthuis Kleer Townshend LLP are representing First Nations in parallel proceedings before the Federal Court and the Manitoba Court of Queen’s Bench.

Copies of the settlement agreement and notices are here:

If you are a resident of the following First Nations: Oneida of the Thames; Deer Lake; Mitaanjigaming First Nation; North Caribou Lake; and Ministikwan Lake Cree Nation you my be able to exclude yourself from these class actions by writing to Drinking Water Advisories Class Action c/o CA2 Inc. at drinkingwater@classaction2.com by Tuesday, November 30, 2021.  The opt out period has otherwise closed.

Olthuis, Kleer, Townshend and McCarthy Tétrault LLP are representing First Nations in parallel cases at both the Federal Court and the Manitoba Court of Queen’s Bench.

Manitoba Court of Queen’s Bench

Find a copy of the Amended Statement of Claim here.

Find a copy of the certification at the Manitoba Court of Queen’s bench here.

Federal Court

Find a copy of the certification at the Federal Court here.

Nishnawbe Aski Nation

Find a copy of NAN’s supporting resolution, Resolution 20/09 here.

Chiefs of Ontario

Find a copy of COO’s supporting resolution, Resolution 20-21 here.


Frequently Asked Questions

For a complete list of Frequently Asked Questions, please visit the Claims Administrator’s website at https://firstnationsdrinkingwater.ca/index.php/help-support/faqs/.

What is a class action?

A class action is a lawsuit that allows a large group of people with common issues to come together to advance a claim. By joining together, class actions provide a more efficient way to advance legal claims.

This proceeding will allow First Nations themselves to join the action. Bands will be able to share their story, and advance the rights of their community.  The proceeding also allows individuals in these affected communities to advance their rights, and obtain remedies.

What is certification?

The court must first assess whether the claim should be advanced in the form of a class action. The court will consider whether the claim shows an appropriate cause of action, an identifiable class of persons, and issues that are shared in common. The court will also determine whether a class action is a preferable procedure, and whether there is an appropriate representative plaintiff. If the class action is certified by the court, the representative plaintiff or plaintiffs will advance the case on behalf of all class members.

Am I a class member?

Eligibility for a First Nation Community

  • First Nation communities must accept the Settlement Agreement to be a member of the class. Please contact the Claims Administrator for more details.

Eligibility for an Individual

  • To be eligible for compensation as an Individual, you must be a member of a First Nation, have been alive on November 20, 2017, and:
    • If born before November 20, 1995: ordinarily resided / lived on an Impacted First Nation during a long-term drinking water advisory that lasted continuously for a year or longer, anytime between November 20, 2013 and June 20, 2021
    • If born on or after November 20, 1995:ordinarily resided / lived on an Impacted First Nation during a long-term drinking water advisory that lasted continuously for a year or longer, anytime between November 20, 1995 and June 20, 2021.

Do I have to pay to be part of the class action?

No. The courts approved Class Counsel’s fees which are paid by Canada. There is no cost to you.

Will joining the class action impact Canada’s funding to First Nations?

We do not believe that participating in these lawsuits will affect current or future funding from Canada. We do not believe that participating in these lawsuits will affect First Nations’ relationships with Canada. Canada prefers that every eligible First Nation join the lawsuits so that Canada may deal with all First Nations at once on these issues.

Counsel for Canada has advised:             

“[T]here is no relationship more important to Canada than our relationship with Indigenous peoples. Canada recognizes that the honour of the Crown guides the conduct of the government in all of its dealings with Indigenous peoples including the intersection of litigation and ongoing infrastructure activities. Canada will continue working with Curve Lake First Nation, Tataskweyak Cree Nation and Neskantaga First Nation and any other First Nations who opt into this litigation, to develop and implement sustainable solutions for addressing their water system needs. All Canadians should have access to safe, clean, and reliable drinking water and Canada respects the right of Indigenous peoples to obtain guidance from the courts in matters where it is necessary and important to do so.”

A copy of Canada’s letter can be found here.

I have further questions.

Please visit our list of Frequently Asked Questions on our website at https://firstnationsdrinkingwater.ca/index.php/help-support/faqs/. If you have questions which are not answered there, please get in touch with us by emailing water@oktlaw.com.”

Click here for the Short Form Notice.

Click here for the Long Form Notice.


Hear From Participants

Click the links below to hear from various First Nations leaders discuss their experiences with long-term drinking water advisories and the class actions role to address the crisis at the AFN Water Summit on November 24, 2020.

Chief Christopher Moonias, Neskantaga First Nation

Chief Emily Whetung, Curve Lake First Nation

Harry LaForme, Lawyer for the Class


This Case in the Media:

Literary Review of Canada: Nor Any Drop to Drink

CBC News: Too Many First Nations lack clean drinking water and it’s Ottawa’s fault, says auditor general

CTV Winnipeg: Manitoba First Nations still waiting on Feds to lift drinking water advisory

APTN: ‘It doesn’t make sense’: Feds pledged spend billions on First Nations water plants, but not on the pipes to carry fresh water to homes

APTN: Overworked, underpaid: Ottawa’s chronic lack of funding leaves First Nations water operators behind

Global News: Trudeau gov. grilled over construction firms hired for First Nations infrastructure projects

Global News: Lack of funding for piped water on First Nations in Sask. means some on reserves can’t drink from their taps

Thompson Citizen: Tataskweyak suing federal government with class-action lawsuit over failure to provide clean water

The Globe and Mail: Ottawa pressed to make good on promise to end all long-term drinking-water advisories for First Nations

APTN: Report: Lifespan of First Nations water infrastructure cut short by underfunding

The Tyee: Bad Water Sickens First Nations. But Government Doesn’t Track the Toll

APTN: Manitoba First Nation seeking help from United Nations over their lack of clean water

City News: Manitoba First Nation seeking help from United Nations over their lack of clean water

CTV Winnipeg: “We matter like all other Canadians”: Tataskweyak Cree Nation calls on Ottawa to restore clean drinking water

Toronto Star: “Shameful”: Manitoba First Nation waiting for Trudeau’s promise of clean drinking water

The Peterborough Examiner: Curve Lake First Nation takes water crisis to court

The Globe and Mail: First Nations communities pursue clean drinking water through the courts

CBC News: ‘Inertia and incompetence’: Manitoba First Nation launches proposed class action over water advisories

The Globe and Mail: Manitoba First Nation seeking class action over long-term boil water advisories

CBC News: ‘Please help us!’ Evacuation of elderly, latest in decades-long water crisis in Neskantaga First Nation

CTV News: Class action lawsuit launched over safe drinking water on First Nations

CBC News: ‘Chance to seek justice’ after First Nations’ water advisories lawsuit certified as class action: lawyer