Ontario First Nation fights for compensation for Winnipeg taking water from Shoal Lake

A First Nation in Ontario is seeking compensation from the province and the City of Winnipeg for damages resulting from the city taking water from Shoal Lake for the past 100 years.

Over the last century, the City of Winnipeg has been drawing water from Shoal Lake, which straddles the Ontario-Manitoba border. Iskatewizaagegan No. 39 Independent First Nation (IIFN 39) is located on the Ontario side, on the northwest shore of Shoal Lake.

Ontario granted the city permission to take water from the lake in 1913, but First Nations in the area were not consulted.

"This water gives my community life and we in turn define ourselves by our responsibility for the protection of such a gift," reads an affidavit filed by Chief Gerald Lewis. 

The affidavit says Lewis has lived his entire life in IIFN 39 so he is familiar with the land and the water, both with regard to their natural history and to their political history. 

"Shoal Lake is not only part of our ancestral territory, but considered to be within reserve lands, land set aside for the community's exclusive use, benefit and occupation," the affidavit continued. 

"Shoal Lake is a vital part of the economy and vital to the exercise of our constitutionally protected Aboriginal rights." 

IIFN 39 filed a claim last November against Ontario and the City of Winnipeg for $500 million in damages for ecological, cultural and financial damages as a result of the water taking.

The First Nation is also seeking a declaration that Ontario breached its fiduciary duty — its obligation with respect to the protection of the First Nation's lands and properties and any compensation for taking or interfering with them — and another declaration that Winnipeg and Ontario have a duty to create a process for compensation for future damages.

In December, Ontario filed a motion to strike, asking for the court to dismiss IIFN 39's claim against the province. 

"The concern I have is that Ontario is basically attempting to cut the First Nation off at the knees before their cases are even out of the gate," said Julian Falconer of Falconers LLP, the lawyer representing IIFN 39.

"They're not even prepared to let the First Nations make their arguments."

In 1913, an Ontario order-in-council gave Winnipeg permission to take water from the lake.

"These deals are made absolutely without regard to treaty obligations," said Falconer.

Ontario's Motion to Strike argues that the 1913 order-in-council was to allow the city to build part of its aqueduct in Ontario and take water from the Ontario side of Shoal Lake.

"However, by the time the aqueduct was constructed in 1919, it was located entirely within Manitoba and only takes water from the Manitoba side of Shoal Lake," reads the motion to strike.  

According to the motion to strike, "There is no basis to conclude that Ontario undertook to secure compensation for the plaintiff or otherwise owed a fiduciary duty with respect to compensation for the plaintiff." 

Neither the Ontario government nor the City of Winnipeg would comment while the case is before the courts.