Canada stresses 'political' nature of commitment to providing First Nations clean water
Federal government emphasizes its discretion over funding decisions in Shamattawa class action defence
Canada is stressing the "unwavering" but "political" nature of its commitment to providing First Nations with clean water, as it details a defence against a national class-action lawsuit.
Scott Farlinger, legal counsel with Justice Canada, told court on Tuesday that Canada "readily acknowledges" previous governments have underfunded water services for First Nations.
But, in the current government's view, "things are not the same at present as they were in 1995," Farlinger told Federal Court Justice Paul Favel in Ottawa.
The remote northern Manitoba community of Shamattawa First Nation and its Chief Jordna Hill are pursuing the class action for all First Nations members whose community was subject to a drinking water advisory in effect on or after June 20, 2020.
Farlinger said that makes this case, filed in 2022, different from past class actions on water access, which the Liberal government settled out of court for $8 billion. That settlement covers drinking water advisories going back to 1995.
Canada argues it has deployed significant measures, including billions of dollars for new on-reserve water infrastructure and services, resulting in the lifting of more than 140 long-term drinking water advisories since 2015, with 33 now remaining.
"The current government's political commitment to addressing access to drinking water on reserve has been unwavering," Farlinger said. "That is the scale of the government's efforts."
The plaintiffs, calling the situation "an urgent human rights crisis," have filed a motion for summary judgment that Canada has a legal obligation to ensure First Nations have safe drinking water.
Shamattawa, which has been under a drinking water advisory for six years, argues First Nations have a basic human right to potable water that Canada has breached. Fifty-nine other First Nations have opted into the current case.
Farlinger told court that Canada isn't saying "everything is better now" and all issues are fixed. Canada knows issues may exist in a given First Nations community, but the current motion is limited to the question of Canada's legal duties, he said.
On this, Canada argues it provides funding and program support for on-reserve water infrastructure "as a matter of public policy and the exercise of the federal spending power."
In other words, imposing a legal duty to ensure First Nations have safe water could fetter the government's ability to make political decisions about how to spread limited cash among competing groups and interests, according to Canada.
"Canada's spending on First Nations' water must obviously compete with the rest of its budget allocations," says the government's written argument.
"Within the program's own context, budgeting must also be allocated across regions, and prioritized among competing First Nations."
'A national embarrassment,' writes chief
The plaintiffs are scheduled to reply on Wednesday, when the hearing on this particular motion will conclude.
The plaintiffs' written reply argument suggests they will dispute that Canada's commitment is in fact unwavering.
"If that were true, this action would not be necessary," says the plaintiff's written reply.
The plaintiffs say it's problematic Canada has long treated this issue "as a matter of simple good governance, and at times a matter of charity, without any accountability," because First Nations now know they can't rely on Canada's promises.
"This action proved necessary because 'trust us' no longer suffices in view of the hardships that class members have endured," says the reply argument.
"The time has come to declare enforceable rights."
In a Sept. 15 letter to his MP, Hill accused Canada of pointing the finger at First Nations.
"Canada's decision to fight First Nations over access to clean drinking water is a national embarrassment," Hill wrote to the NDP's Niki Ashton, whose riding includes Shamattawa.
Ashton told CBC Indigenous she felt the treatment was heartbreaking and the arguments hypocritical. NDP Leader Jagmeet Singh also weighed in on Tuesday.
"Justin Trudeau, call your lawyers off," Singh posted on X, formerly Twitter.
"Provide clean water, now."
In a statement, Indigenous Services Canada pointed to the Liberals' proposed clean drinking water for First Nations legislation, which the department says will hold the government accountable.
Canada respects Shamattawa's decision to seek the court's assistance on this important issue, the statement said.
"Everyone in Canada should have access to reliable, safe and clean drinking water."
In court on Monday, plaintiffs' counsel Michael Rosenberg, a partner with McCarthy Tétrault LLP in Toronto, accused Canada of blaming the victims.
Farlinger rejected that suggestion, saying that Canada only wants to point out "variability" exists across communities: different systems, challenges, circumstances and impacts.
"This idea that the suggestion of variability equates to Canada blaming class members is found nowhere in our materials," he said.
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Canada has no legal obligation to provide First Nations with clean water, lawyers say
Hearing opens in drinking water class action launched by Shamattawa First Nation
The federal government has no legal duty to ensure First Nations have clean drinking water, even if Liberal ministers publicly suggest otherwise, Justice Canada lawyers say.
That's the defence the federal government is expected to mount in Ottawa this week in Federal Court, as it fights a national class-action lawsuit launched by a remote northern Manitoba First Nation in 2022.
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.
The plaintiffs argue First Nations have a basic human right to clean water that Canada has violated, describing the conditions facing their communities as "an urgent human rights crisis."
In its statement of defence, Canada argues the government supports the delivery of potable water for First Nations as a discretionary political decision, calling it "a matter of good governance rather than legal duty."
"Canada does not owe any legal obligations or duties to operate and maintain the plaintiffs' water systems," says the statement of defence.
From
left: Dennis White Bird of the Assembly of Manitoba Chiefs, Shamattawa
First Nation Chief Jordna Hill and Alana Robert, a lawyer with McCarthy
Tétrault LLP, speak at a news conference in Winnipeg on Sept. 4. (Radio-Canada)
Alana Robert, counsel for Shamattawa and Hill, told CBC Indigenous they aim to change that notion.
"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 Robert, an associate with McCarthy Tétrault LLP.
Canada's lawyers are seeking dismissal of Shamattawa's motion for summary judgment on the question of Canada's legal duties. They will have their opportunity to respond on Tuesday.
'Right to safe water is not distinctly Indigenous'
The case picks up where previous class actions, settled for $8 billion out of court, left off.
Fifty-nine First Nations have opted into the current case, while individual First Nation members would be automatically included if they meet the requisite criteria.
Canada's lawyers are expected to argue, among other things, that "the right to safe water is not distinctly Indigenous," while "there is no positive right to government funding," according to their written argument.
The plaintiffs point to numerous Liberal ministers' public statements seemingly acknowledging federal responsibility for the water crisis facing some First Nations.
We're really seeing the dark underbelly of Canada, and I would say the hypocrisy of the Liberals.
- NDP MP Niki Ashton
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."
Hajdu touted the government's progress since 2015 when Ashton pressed for answers on the case during question period last week.
"We have lifted over 145 long-term boil water advisories and prevented well over 200. We are going to continue that hard work," Hajdu said.
'Pointing the finger at First Nations'
Ashton told CBC Indigenous it was "particularly heartbreaking" to hear how Shamattawa has been treated in the case.
Hill described the cross-examinations by government lawyers as "long and painful," in a Sept. 15 letter to the MP.
"I was asked questions that sought to blame me and my band council for our long-term drinking water advisory," Hill wrote.
"Rather than look in the mirror, Canada is pointing the finger at First Nations for the entirely predictable consequences of its own actions."
Lawyer Michael Rosenberg, who opened the hearing Monday for the plaintiffs, said Canada is blaming the victims.
Canada's lawyers cross-examined the plaintiffs in "forensic detail," presenting them with stacks of technical documents and financial statements on short notice, Rosenberg told Justice Paul Favel.
"It didn't seem like a fair way to conduct a case against a group of plaintiffs that are vulnerable and lived through a drinking water advisory," Rosenberg said.
Canada then attached an 11-page appendix to its written argument, or factum, outlining a list of alleged examples of inconsistencies in the plaintiffs' evidence.
"It's unfortunate that Canada has chosen to defend this case by impugning First Nations leaders," Rosenberg said.
Hill was not available to discuss the case. The chief had planned to travel to Ottawa but was unable to make the trip following the death of his son, court heard. The hearing began Monday with a moment of silence.
Matters about this particular motion conclude on Wednesday.
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