'Chance to seek justice' after First Nations' water advisories lawsuit certified as class action: lawyer

A recent court decision could mean billions of dollars for First Nations without access to safe drinking water — if a class-action lawsuit is successful.

A Manitoba lawsuit seeking compensation from the federal government for First Nations under drinking water advisories was certified as a class action this week. 

Tuesday's decision by Manitoba Court of Queen's Bench Chief Justice Glenn Joyal opens the door for a potentially huge number of First Nations members across Canada to join in the lawsuit, first filed in November of last year.  

The class will be made up of any member of a band whose land was subject to a water advisory that lasted at least one year, at any point from Nov. 8, 1995, until the present.

There are currently 61 long-term water advisories in effect on First Nations in Canada.

Michael Rosenberg, a partner at the Canadian law firm McCarthy Tétrault and the lead lawyer in the suit, said the decision is an "important day for class members."

"[They] will now have a chance to seek justice on the merits of their claims," wrote Rosenberg in a prepared statement after Tuesday's decision.   

"Access to clean drinking water is a fundamental right, and all Canadians can understand the urgency of this case." 

Suit seeks more than $2B

Rosenberg previously told the CBC it was unclear how many potential class members could join the suit, which names the attorney general of Canada as the defendant. 

Along with the members of the First Nations currently under advisories, there are many other communities, such as Pauingassi and Hollow Water First Nations in Manitoba, that were under advisories for years before they were lifted.

"It would be a significant number. This is a long-standing problem," Rosenberg said in December. 

The lawsuit also seeks to force the government to immediately construct, or approve and fund the construction of, appropriate water systems for the class members.

The proposed class-action lawsuit filed last year alleged the government violated the Charter rights of a large class of First Nations people for decades by failing to provide them with safe drinking water.

"Although Canada was advised of the devastating human consequences of these failures, its response to this human catastrophe was — and continues to be — a toxic mixture of inertia and incompetence," the lawsuit says.

"It conducted its affairs with wanton and callous disregard for [the] interests, safety and well-being" of people living under the advisories.

The suit seeks $1 billion in damages for the breach of the Charter rights, $1 billion for negligence of fiduciary duty and $100 million in punitive damages.

A request for comment from Indigenous Services Canada was not returned at the time of publication.

Feds promise to end advisories by 2021

The lead plaintiff in the class action is Tataskweyak Cree Nation Chief Doreen Spence. 

The northern Manitoba reserve has been under an official boil water advisory since 2017.

"Tataskweyak Cree Nation has been unable to trust the water from its taps for years.  We can no longer turn a blind eye to a water crisis that affects so many people in this country," Rosenberg wrote in his statement after Tuesday's decision.

Tataskweyak, about 700 kilometres north of Winnipeg, is one of three First Nations in Manitoba currently under long-term boil water advisories, along with Wuskwi Sipihk First Nation in northwestern Manitoba and Shamattawa in northern Manitoba.

The federal Liberals ran on a campaign promise in 2015 to have all boil-water advisories lifted by March 2021. 

"Class members are now counting on the federal government to follow through on that commitment by ensuring that reserve communities have access to clean drinking water, and by paying compensation for the undue hardships that class members have endured," Rosenberg's statment said.

Tataskweyak is slated to be one of the last First Nations to have its advisory lifted in March 2021, according to the government's tracking website for advisories.

The other two Manitoba First Nations were slated to have their advisories lifted by June of this year, a deadline the federal government missed. 

Canada's attorney general consented to the class-action certification, which Rosenberg called "an important step toward reconciliation."

Joyal's brief oral decision was delivered Tuesday with a fulsome written decision expected to be released in the next few weeks.