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:

Obtaining compensation for individuals and communities that have suffered from a lack of reliable access to clean water; and
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 (April 15, 2024)

The Claims Period Has Closed

The claims period is now closed. The Administrator is processing claims submitted on or before March 7, 2024. If you have received a letter saying that you are eligible for compensation and you submitted your claim on or before March 7, 2023 the Administrator will begin processing your payment after the appeals period has expired. If your claim was submitted after March 7, 2023, compensation will be determined in due course once all claims have been tabulated.

If the Administrator has asked you for additional information or has sent you a minor attestation form, please do not wait, and send these back as soon as possible.

QUESTIONS?

Please visit the Claims 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 forms. If you have a legal question related to the settlement agreement, please reach out at counsel@firstnationsdrinkingwater.ca.

Ongoing Long-Term Drinking Water Advisories

On September 22, 2022, Chief Jordna Hill and Shamattawa First Nation commenced a new class action for continuing long-term drinking water advisories. The Statement of Claim can be found here. This class action picks up where the previous class actions and settlement left off. It seeks additional redress from Canada for the suffering and hardships of First Nations and their members who have continued to be deprived of safe and reliable drinking water.

On March 14, 2023, the Federal Court certified this action as a class proceeding. The Certification Order can be found here.

The certified class includes all members of First Nations who lived on a First Nation 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 and continued or commenced after June 20, 2020.

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

Notice to the Class

KEY DOCUMENTS

COURT DECISION 

Federal – Settlement Approval Decision [PDF]
Manitoba – Settlement Approval Decision [PDF]

SETTLEMENT AGREEMENT AND ADDENDUM 

Settlement Agreement [PDF]

First Addendum to the Settlement Agreement [PDF]

STATEMENTS OF CLAIM

SUMMARY AGREEMENT “EXPLAINER” 

Summary and Explanation [PDF]

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