The federal government says a judge made several errors in a ruling that found it had a duty to provide some First Nations communities with adequate housing and safe drinking water.
Ottawa is appealing Federal Court rulings that sided with two remote First Nations in Manitoba, in the first stage of class-action lawsuits that could cost the government billions.
The Federal Court of Appeal began listening to arguments on the matter during a hearing in Winnipeg, attended by several First Nation leaders Wednesday.
The Assembly of Manitoba Chiefs and the leaders of Shamattawa and St. Theresa Point First Nations held a news conference a day earlier in which they questioned the federal government’s decision to appeal — and called on Canada to uphold its treaty obligations.
“These are without a doubt some of the most consequential appeals that my colleagues and I will ever argue,” Michael Rosenberg, the lawyer representing the First Nations, said Wednesday.
“This is not a case about hardship in the abstract. Canada is not a bystander to class members’ plight. This country was built on their dispossession.”
Late last year, Federal Court Justice Paul Favel found the government should have provided adequate housing to St. Theresa Point First Nation, Sandy Lake First Nation and other members of a $5-billion class action certified in 2024.
Favel said the class members’ reserves were generally short “hundreds of houses to adequately shelter their populations,” with many families forced to live in condemned units.
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In a separate decision, Favel found Ottawa also had a duty to provide Shamattawa First Nation and other Indigenous communities subject to drinking water advisories after June 20, 2020 with water suitable for human consumption.
That $1.1-billion class-action builds on an earlier action over drinking water advisories that led to an $8-billion settlement in 2021.
Wednesday’s hearing mostly revolved around the water decision. Federal government lawyers argued the judge made several legal and evidentiary errors.
They said among other things, Favel completely disregarded evidence presented by Canada while accepting evidence that was no longer relevant to the time period the class action applies to.
“The analysis on the core legal issues all considered historical evidence,” said lawyer Willemien Kruger. “It is possible that the motions judge … wasn’t persuaded by our evidence, but it is still the fact that it had to be addressed.”
The government said based on Favel’s views, Canada would have a duty of care in all aspects of programs and services on-reserve, and that this would run counter to Canada’s policy to support Indigenous self-government.
It also argued the judge did not consider the control First Nations have over things like deciding when a drinking water advisory should be enacted. The judge also did not consider that the issue is really about funding of government programs, the federal government argued.
Rosenberg said the argument the class-action is about spending “like any other” ignores the historical record.
“Class members are between a rock and a hard place because the defendant put them there,” he said.
The First Nations “do not call for unlimited government liability. They do not call for guaranteed outcomes. What they ask is that Canada make reasonable efforts to assist to the extent that it is responsible for their inability to realize the promise of a reserve as a livable homeland.”
Rosenberg said self-government “cannot be an excuse” to leave First Nations on their own while they still haven’t been restored to a position where they have the ability to “stand on their own feet.”
His clients are not arguing colonization creates a broad fiduciary duty owed by Canada to First Nations that applies to things that affect quality of life, such as food programs, Rosenberg said.
The First Nations only have a “narrow interest” in what fundamentally makes a reserve liveable, he argued.
“That’s an important distinction,” he said. “I don’t want the court to think that this is the thin end of the wedge that’s going to drive open … a general fiduciary duty.”
Favel’s decision dealt with what is the first stage of the class-action lawsuits, and was meant to determine whether the government had an obligation to the First Nations.
A second stage would deal with the scope or existence of any breaches and potential remedies.
Rosenberg said the second stage is when Canada should be making arguments it actually fulfilled its duties or that it ultimately does not have liability.
“That is an urgent inquiry that should advance with all due dispatch,” he said. It’s “ready to go, subject to this court’s decision on Canada’s appeal.”
The hearing is set to continue Thursday.
