Canada has no legal obligation to provide First Nations with clean water, lawyers say

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.

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.

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.

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."