A proposed settlement agreement worth nearly $8 billion has been reached in two national class action lawsuits launched against the federal government by First Nations living under drinking water advisories.
The settlement, which is awaiting court approval, would offer $1.5 billion in compensation to individuals deprived of clean drinking water and modernize Canada’s First Nations drinking water legislation.
About 142,000 individuals from 258 First Nations could be compensated, along with 120 First Nations. Depending on the details of the final agreement, more people may end up being eligible for compensation.
Individuals’ compensation will be calculated based on how remote their communities are, how long they lived under a drinking water advisory and whether they suffered any adverse health conditions as a result.
The proposal also requires the federal government to renew its commitment to lifting all long-term drinking water advisories on reserves.
Indigenous Services Minister Marc Miller announced the agreement at a news conference today. He was joined by Curve Lake First Nation Chief Emily Whetung, Tataskweyak Cree Nation Chief Doreen Spence and Neskantaga First Nation Chief Wayne Moonias.
Miller told CBC News the government is happy to avoid a court battle.
“We don’t want to be in court. We’ve said that time and time again,” he said.
“It’s a lot of money, yes, but it reflects a commitment to get water into a community that hasn’t been done up until now.”
If Ottawa doesn’t live up to its commitments under the settlement agreement, the terms of the agreement state that First Nations would be able to turn to a new alternative dispute mechanism with strict timelines that have not been set.
The proposal would see the federal government commit at least $6 billion in previously announced funding to provide reliable access to safe drinking water on reserves, create a First Nations Advisory Committee on Safe Drinking Water, support First Nations’ efforts to develop their own drinking water by-laws and initiatives and make Ottawa responsible for private water systems, such as wells.
The proposal also would create a new $400 million First Nation Economic and Cultural Restoration Fund.
Miller announced last December that the Liberal government would not be able to meet its target of lifting all long-term drinking water advisories on reserves by the end of March 2021.
A CBC survey last October found that some drinking water projects would take several more years to complete.
Currently, there are 51 long-term drinking water advisories in 32 First Nations, according to Indigenous Services Canada.
The lead lawyer in the two lawsuits said the agreement is the product of several months negotiations with the government.
“We were able to reach what I think is a historic agreement that will provide compensation for the wrongs of the past, and address the future to ensure that it does not resemble the past,” said Michael Rosenberg, a partner at the law firm McCarthy Tétrault.
“The aim here is that long-term drinking water advisories in First Nation reserves will become just that — a thing of the past.”
Lawsuits claimed government negligence
The lawsuits alleged Canada violated its obligations to First Nations and its members by failing to ensure reserves have clean water.
They also alleged Canada has been negligent and breached both its fiduciary duties and charter rights.
The lawsuits were launched on behalf of Tataskweyak Cree Nation in Manitoba, and Curve Lake First Nation and Neskantaga First Nation in Ontario, by McCarthy Tétrault LLP and Olthuis Kleer Townshend LLP.
The class includes all members of First Nations whose communities were subjected to drinking water advisories — including boil water advisories, do-not-consume advisories and do not use advisories — which lasted at least one year between November 20, 1995 and now.
Class members must have been alive for two years prior to the action being commenced to be eligible for compensation. Communities may opt into the class action to advance their rights.
Ontario chief pleased with settlement agreement
Whetung said she is satisfied with the settlement agreement.
“I think the total agreement really satisfies the need of First Nations across Canada. It was designed to do that, and specifically ensure that every community gets access to clean water,” she told CBC News. “There’s a recognition that individuals have suffered harms from not having access to clean water.”
While details of the dispute mechanism still need to be worked out, Whetung said she’s confident it will be effective.
“If there are issues, there’s a really defined process to move those conflicts and those disputes forward quickly and effectively,” she said.
“I feel like we’re really embarking on the journey that will take our communities to meaningful access to clean water.”