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Class Action Litigation on Drinking Water Advisories on First Nations

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Acting on behalf of Tataskweyak Cree Nation, Curve Lake First Nation, and Neskantaga First Nation, McCarthy Tétrault LLP and Olthuis Kleer Townshend LLP have brought a 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 have been forced to live without access to clean and safe drinking water. The key allegation was that Canada has breached its obligations to First Nations and their members by failing to ensure that reserve communities have clean water.  It was 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 sought 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 20, 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.

Case Updates

On December 22, 2021, the Federal Court and the Court of Queen's Bench of Manitoba issued a joint decision approving an agreement to settle class-action litigation related to safe drinking water in First Nations communities. An appeals period of approximately 60 days will follow the courts' approval of the settlement agreement. 

The parties welcome the courts' approval of their settlement agreement, and they look forward to implementing this historic settlement once the appeal period concludes.

A copy of the decisions are here:

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 settlement includes 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.

Copies of the settlement agreement and notices are here:

 

Federal Court

Third Fresh as Further Amended Statement of Claim

Certification Order

 

Manitoba Court of Queen’s Bench

Fresh as Further Amended Statement of Claim

Certification Order

 

Frequently Asked Questions

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?

First Nations Bands May Register

If your First Nation has been subject to a long-term drinking water advisory between November 1995 and now, please contact [email protected].

Individuals Are Automatically Included

When a class action is certified, a definition of the class is provided. If you are an individual class member meeting the class description, then you do not need to sign up to be part of the class action – you are automatically included.

In order to make a claim, please go to the administrator’s website: https://firstnationsdrinkingwater.ca/

If individuals have any questions regarding their claim, please contact the administrator using their contact information below:

  • Email: [email protected]
  • Phone: 1-833-252-4220 (Monday – Friday, 10 am – 6 pm EST).

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

No. This class action will proceed on a contingency fee basis.  This means that the lawyers bringing the action will only be paid if the class action succeeds. If successful, the lawyers will be paid a portion of the settlement or judgment, but only if the Court approves.

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

No, 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 contact Stephanie Willsey at Direct Line: 416-601-8962, Toll-Free 1-877-244-7711, Email: [email protected]; or Alana Robert at Direct Line: 416-601-8022, Email: [email protected]

Please also see OKT’s website here, or contact Bryce Edwards at Email: [email protected];  Kevin Hille at Email: [email protected], Phone: 416-981-9330; or Jaclyn McNamara at [email protected] or (416) 598-1214.

Click here for the Short Form Notice.

Click here for the Long Form Notice.
 

Call for Applications: First Nations Advisory Committee on Safe Drinking Water

The settlement agreement provides for $20 million dollars in funding for the creation of the First Nations Advisory Committee on Safe Drinking Water (“FNAC”). The FNAC’s membership shall reflect Canada’s diversity of First Nation Class Member communities, languages, genders, geographies, skills, expertise, and experience with water insecurity.

We are soliciting applications for appointment to the FNAC. To apply you must complete the online form here. We look forward to receiving your application.

 

In the News

CBC News: Approval of $8B settlement in First Nations' drinking water class action a 'historic moment': Manitoba chief

CBC News: First Nations and Ottawa agree to $8-billion settlement on drinking water advisories

The Globe and Mail: Federal government settles with multiple First Nations over safe drinking water lawsuits

APTN: Feds, First Nations reach proposed $8B settlement in clean water class action

APTN (video): Federal government settles class action lawsuit over potable water on reserves

CTV News: Feds reach $8B agreement to settle First Nations drinking water class action

The Guardian: Canada reaches C$8bn clean water deal with First Nations after decades-long battle

Global News: Feds reach nearly $8B deal with First Nations over clean drinking water lawsuit

The Guardian: Dozens of Canada’s First Nations lack drinking water: ‘Unacceptable in a country so rich’

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 to 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

Global News: How colonial systems have left some First Nations without drinking water

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

City News: Manitoba First Nation taking fight over clean water to the UN

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

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

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

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

National Post: ‘Poison:’ Manitoba First Nation seeking class action over boil water advisories

Toronto Star: Manitoba First Nation seeking class action over long-term boil water advisories

New York Times: Canada to Pay Billions to Indigenous Groups for Tainted Drinking Water

yahoo.com Multi-billion dollar settlement means safe drinking water no longer a matter of goodwill

The Peterborough Examiner Curve Lake hopeful ‘absolute tragedy’ of clean water crisis for First Nations ends with $8 billion settlement

MBC Radio Claims period open for First Nations Drinking Water Settlement

 

Support for the Class Action

Assembly of First Nations

Nishnawbe Aski Nation

Chiefs of Ontario

 

Hear from Participants

On November 24th, 2020 First Nations leaders spoke at the AFN Water Summit on their experiences with long-term drinking water advisories, and the role that the class actions play in addressing this crisis. Click the links below to hear more from participants in the class actions:

Chief Christopher Moonias, Neskantaga First Nation

Chief Emily Whetung, Curve Lake First Nation

Harry LaForme, Lawyer for the Class


On February 11, 2021, leaders spoke on the long-term drinking water advisory in Tataskweyak Cree Nation and the national class action lawsuit that First Nations are able to join: 

Chief Doreen Spence, Tataskweyak Cree Nation and Michael Rosenberg, Lawyer for the Class

 

Contact

Stephanie Willsey
Direct Line: 416-601-8962
Toll-Free 1-877-244-7711
Email: [email protected]

Alana Robert
Direct Line: 416-601-8022
Email: [email protected]