Tataskweyak Cree Nation v. Canada (Attorney General)

Tataskweyak Cree Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-12-22
Neutral citation
2021 FC 1415
File numbers
T-1673-19
Notes
Digest
Decision Content
Date: 20211222
Manitoba Court of Queen’s Bench File No.: CI-19-01-24661
Federal Court File No.: T-1673-19
Citation: 2021 FC 1415
Ottawa, Ontario, December 22, 2021
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
Docket: CI-19-01-24661
TATASKWEYAK CREE NATION AND CHIEF DOREEN SPENCE ON HER OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF TATASKWEYAK CREE NATION
Plaintiffs
and
ATTORNEY GENERAL OF CANADA
Defendant
(Class Proceeding commenced under The Class Proceedings Act, CCSM c C 130)
AND BETWEEN:
Docket: T-1673-19
CURVE LAKE FIRST NATION AND
CHIEF EMILY WHETUNG ON HER OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF CURVE LAKE FIRST NATION AND NESKANTAGA FIRST NATION AND CHIEF CHRISTOPHER MOONIAS ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF NESKANTAGA FIRST NATION
Plaintiffs
and
ATTORNEY GENERAL OF CANADA
Defendant
(Class Proceeding commenced under Part 5.1 of the Federal Courts Rules, SOR/98-106)
ORDER AND REASONS
I. Introduction
[1] This is a motion to approve the First Nations Drinking Water Settlement Agreement [Settlement Agreement or Settlement] pursuant to Rule 334.29(1) of the Federal Courts Rules, SOR/98-106 [Rules] and section 35(1) of The Class Proceedings Act, CCSM, c C130 [The Class Proceedings Act]. The underlying actions are class proceedings. The Settlement Agreement compensates First Nation individuals who have lived under a drinking water advisory for a year or more. It also provides First Nations with compensation and assistance in securing safe drinking water through future infrastructure funding.
[2] Both the Federal Court and the Manitoba Court of Queen’s Bench [Courts] have jurisdiction over this proceeding. On October 11, 2019, Curve Lake First Nation [Curve Lake], Chief Emily Whetung, Neskantaga First Nation [Neskantaga], and Former Chief Christopher Moonias filed a statement of claim in the Federal Court [Federal Action]. On November 20, 2019, Tataskweyak Cree Nation [Tataskweyak] and Chief Doreen Spence filed a Statement of Claim in the Manitoba Court of Queen’s Bench [Manitoba Action, and together with the Federal Action, the Actions]. After the Actions were certified, the Courts appointed these individuals and First Nations as the Representative Plaintiffs. The current Chief of Neskantaga, Wayne Moonias, represents the collective interests of Neskantaga. The defendant in both Actions was the Attorney General of Canada [Defendant or Canada]. McCarthy Tétrault LLP [McCarthy Tétrault] and Olthuis Kleer Townshend [OKT] are class counsel [Class Counsel]. The parties finalized the Settlement on September 15, 2021.
[3] The Representative Plaintiffs now bring a motion for an Order:
that the proposed Settlement Agreement be approved and its terms given effect;
that the Defendant pay the funds contemplated in the proposed Settlement Agreement, and that said funds be distributed in accordance with the proposed Settlement Agreement;
that Class Members (defined below) be notified of the approval of the proposed Settlement Agreement as set out in Schedule M and N of the Settlement Agreement; and
that the Actions be discontinued on a without costs basis.
[4] The Courts jointly case managed and heard the motion for settlement approval, as contemplated by the Canadian Bar Association’s “Canadian Judicial Protocol for the Management of Multi-jurisdictional Class Actions and the Provision of Class Action Notice” (2018), online: The Canadian Bar Association <www.cba.org>. The Courts exercised their jurisdiction to hear this motion jointly pursuant to Rules 3 and 4 of the Rules and section 12 of The Class Proceedings Act.
[5] The two Courts exercised their respective jurisdiction to jointly hear the motion for the approval of the Settlement Agreement. However, as required, each Court separately and independently addressed the governing legal test as it relates to the issue before the Courts and the Actions that were certified in their respective jurisdictions.
[6] The reasons for Settlement and Fee Approval have been released separately but concurrently by each Court. After a full analysis, the two Courts are in complete agreement with the result and the reasons therefore. Accordingly, the reasons released by each Court to a large extent replicate the reasons of the other. This represents what the Courts wish to underscore as complete concurrence.
[7] The Settlement Agreement is historic. It is the first Settlement to tackle the problem of drinking water advisories on First Nation reserves. Additionally, this proceeding marks the first time the Federal Court and another Superior Court have sat together. Most importantly, however, the record before the Courts demonstrates that the Settlement Agreement we are being asked to approve represents what many hope will be a turning point for Canada and First Nations. Both parties acknowledge that an agreement of this nature is long overdue. Although the parties reached the Settlement in just under two years, the Courts acknowledge that Indigenous communities have been advocating for decades to ensure future generations’ access to safe water. Those tireless efforts, the willingness of the government, and the expertise and focus of legal counsel have now brought the parties to this promising and hopeful turning point.
[8] For all the reasons outlined below, the Courts approve the proposed Settlement Agreement.
II. Background
A. Drinking water advisories on First Nation reserves in Canada
[9] Authorities issue drinking water advisories when testing indicates that the water supply is or may be unsafe. There are three types of drinking water advisories: boil before use, do not consume, and do not use. Long-term drinking water advisories are those that have been in place for more than one year. The Settlement Agreement only applies to individuals residing on First Nations that have been subject to a long-term drinking water advisory and to those First Nation communities.
[10] The affidavit of Peter Gorham, an expert actuary jointly retained by both parties, states that from 1995-2007, there were 713 recorded long-term drinking water advisories that affected some 257 First Nations. Class Counsel submitted a January 28, 2021 report by Dr. Melanie O’Gorman, a professor of economics and scholar in water infrastructure and long-term drinking water advisories in First Nations. That report states that in comparison to municipal and private water systems, First Nations disproportionately experience long-term drinking water advisories.
[11] As discussed in more detail below, the Actions alleged that Canada is responsible for the establishment of drinking water systems on reserves and that Canada has chronically underfunded First Nations’ water needs. As a result, Canada has failed to ensure that Class Members have access to potable water of adequate quality and quantity. Class Counsel pointed out that in a press conference on November 24, 2021, Minister of Indigenous Services, the Honourable Marc Miller, stated that the deficits pertaining to drinking water infrastructure on reserve are a result of systemic racism.
B. Experiences of Representative Plaintiffs & Class Members
[12] The Representative Plaintiffs and other Class Members filed affidavits in support of settlement approval, which outlined the status of drinking water on their respective First Nations. All of those affidavits explained the importance of safe water for the physical, spiritual, emotional, psychological, cultural, or economic health of individuals and communities. In particular, many of the affidavits, including the affidavits of Elder Richard Allen Keeper and Anne Taylor, emphasized the role water plays in ceremony and how contaminated water results in the breakdown of knowledge transmission. Class Members also discussed the tragic relationship between poor drinking water, mental health, and youth suicide. Likewise, they noted that contaminated water has forced members to relocate, which perpetuates the history of displacement of Indigenous peoples from their lands and the separation of families. Class Member Roderick Richard Spence explains:
Now that I live in Winnipeg, I can drink the water that comes out of my tap, just like other Canadians. But I have lost a piece of who I am. It seems like an awful trade to have to make. I certainly hope that my grandchildren get better treatment. I dream for this, pray for this, and cry for this.
[13] The frustration, stress, and loss of dignity that Class Members have experienced is palpable. As detailed in their affidavits discussed below, members of the Representative First Nations have and continue to suffer unacceptable hardships.
(a) Curve Lake
[14] Curve Lake is an Ojibway First Nation located 15 kilometers outside of Peterborough, Ontario. Chief Whetung was elected Chief on June 18, 2019. She is Michi Saagiig of the Anishnaabe nation. She is a 36-year old lawyer and a mother of two. Chief Whetung’s affidavit explains that Curve Lake experiences 10 to 15 boil-water advisories every year, some of which have lasted for more than one year. Her affidavit and the affidavit of Shawn Williams, a member of Curve Lake, state that the water treatment plant on Curve Lake inadequately disinfects water and only services 56 of the 550 homes in the community. Canada constructed it in the early 1980s and intended it to be temporary. The remaining homes on the First Nation are not connected to a public water system and rely on private wells. Members of the community, including Chief Whetung’s entire family, have contracted E.coli due to the contaminants in their drinking water. Others have become gravely sick, suffered rashes, and more.
[15] Mr. William’s affidavit explains that for decades Curve Lake has been negotiating with Indigenous Services Canada [ISC] to get a new water treatment plant. He describes the process as a “hamster wheel”: “the First Nation is constantly running, working to provide proposals, obtain necessary studies, seek funding, only to be in the exact same position decades later.” He explains that since Canada provides the funding, the federal government’s sign off is needed at every stage of development. He attributes the delay to ISC’s habit of providing “funding for studies, small projects, and other lower cost items as a means to appease First Nations while they wait for the big ticket funding to actually address their needs, if that day ever arrives.”
[16] The affidavit of Katie Young-Haddlesey, the Economic Development Coordinator of Curve Lake, states that the water crisis has “strangled Curve Lake’s economic development.” She explains that for every business proposal, Curve Lake must consider whether “there will be enough water and whether the quality will impact the business.” Proposals for businesses like laundromats, car washes, restaurants, and hotels are not feasible because there is simply not enough water in the community.
[17] Chief Whetung spoke passionately before both Courts on December 8, 2021. She explained that Curve Lake has been fighting for clean drinking water since before she was born. For her, the Settlement not only means that the First Nation will have clean water in the near future, but that her children will be able to stay and grow up in their community.
(b) Neskantaga
[18] Neskantaga is an Oji-Cree remote fly-in community in northern Ontario and is situated along Lake Attawapiskat. Neskantaga is subject to the longest drinking water advisory in Canada – the First Nation has not had safe drinking water for over 26 years. Members of Neskantaga have had to evacuate their community twice in the past three years because of their water.
[19] Christopher Moonias was the Chief of Neskantaga from 2019 to 2021. He now acts as special advisor to Neskantaga and remains a Representative Plaintiff. Chief Wayne Moonias is the current Chief of Neskantaga. He took office on April 1, 2021 and continues the work of Former Chief Christopher Moonias with respect to these Actions.
[20] The affidavit of Chief Wayne Moonias describes the traumatic effect the drinking water advisory has had on both individuals and the community and emphasizes its adverse effect on community members’ mental health. As explained by the Community of Neskantaga in the Joint Press Release dated July 20, 2021, “[o]ur symptoms are real, and result in kids committing suicide, getting rashes, and suffering severe eczema. The skin conditions are particularly awful. They make our people feel like they have to hide themselves, and furthers their loss of dignity, on top of already feeling like maybe they don’t deserve clean water.”
[21] Class Members from Neskantaga also submitted affidavits supporting the Settlement and detailing their stories. Those Class Members included Former Chief Peter Moonias, Dorothy Sakanee, Maggie Sakanee, Marcus Moonias, and Amy Moonias. Maggie Sakanee’s affidavit details the skin rashes and sores that her grandchildren developed due to the water, which only cleared up after being evacuated to Thunder Bay. Amy Moonias’ affidavit tells a very similar story. Due to the expense of bottled water (a 4-litre bottle of water in Neskantaga costs 16 dollars), Amy Moonias often had to choose between feeding and bathing her baby. Likewise, Dorothy Sakanee sometimes had to choose between buying bottled water and essentials like food or diapers. When she had to boil water, it came at the expense of spending time with her children. Former Chief Peter Moonias’ affidavit states that he declared a State of Emergency in the early 2000s because a cancer-causing chemical was found in the water. Dorothy Sakanee’s affidavit explains that her youngest daughter died in 1988 from brain cancer. She states that she suspects that the cancer was caused from the water in Neskantaga.
(c) Tataskweyak
[22] Tataskweyak is located in northern Manitoba and has 4000 members, 2300 of whom live on the reserve. Chief Spence is Split Lake Cree and is the Chief of Tataskweyak, where she has lived most of her life. She was elected on November 6, 2016 and is the first female Chief. She is a mother of three and a grandmother of one. In her affidavit, Chief Spence states that Tataskweyak has been under a boil water advisory for three years. She explains that the community sources its tap water from Split Lake, which has been contaminated by upstream development and recurring flooding. The affidavit of Tataskweyak member, Robert Spence, further explains that sewage is periodically released into Split Lake. Split Lake is contaminated with E.coli and large-scale blue-green algae blooms known to cause serious illness in humans.
[23] Accordingly, in 2006 and 2019, Tataskweyak sent Canada feasibility studies for a new water intake system, which would draw from Assean Lake. Instead, Canada upgraded the filtration and UV system in the existing water plant, which left the water tasting and smelling like chemicals. Chief Spence explained that occasionally, when the water line breaks, the tap water runs brown. The affidavit of Roderick Richard Spence, another member of Tataskweyak, similarly describes the tap water as smelling like chlorine and looking like “lemonade.” Even after Canada’s upgrades, the water remains unsafe to drink without boiling. In May 2020, Chief Spence obtained Canada’s commitment to pay for bottled water delivery and enhanced water testing. Prior to this, however, community members who could not afford bottled water had to drink tap water or haul buckets of water from Assean Lake. In comparison, residents of the City of Thompson, which is upriver from Tataskweyak, enjoy virtually unlimited potable water.
[24] Similar to Curve Lake and Neskantaga, skin rashes are the norm for members of Tataskweyak. Class Members Lydia Garson and Clara Flett detailed their children’s rashes that resulted from bathing in the contaminated water. Lydia Garson’s son was covered in scrapes, sores, and scabs. At one point, despite his mother’s dedication, his condition got so bad that his face would bleed. Likewise, although she took special care, Clara Flett’s son had to be hospitalized due to his rashes. Class Member Elizabeth Keeper similarly contracted H. pylori infection (a stomach infection) from the contaminated water in Tataskweyak. Chief Spence explains that illnesses related to contaminated drinking water have been exacerbated by inadequate access to healthcare, overcrowded housing, and the COVID-19 pandemic.
C. Nature of the Claims & Defences
[25] In the Statements of Claim filed in both Actions, the Representative Plaintiffs submitted that Canada failed to provide Class Members with potable drinking water. Accordingly, they sought orders and declarations that Canada has: breached its duty of care and acted negligently; contravened the honour of the Crown; breached its fiduciary duties; violated section 36 of the Constitution Act, 1982; and committed violations of sections 2(1), 7, and 15 of the Charter, which are not saved by section 1. They submitted that as a result, Class Members are denied adequate access to clean drinking water; unable to adequately wash and care for themselves and their families; and prevented from performing traditional ceremonies and spiritual practices.
[26] The Representative Plaintiffs submitted that Canada has always taken responsibility for water systems on reserves but has never provided adequate funding. Furthermore, Canada knew that its funding was inadequate. The Representative Plaintiffs maintain that for most First Nations, federal funding is the only means of constructing and maintaining water infrastructure on reserve but Canada has tied funding to compliance with a complex system of specifications. Accordingly, Canada controls what infrastructure is built, where, how, when, and by whom.
[27] The Representative Plaintiffs in the Federal Action requested damages in the amount of 2.1 billion dollars, plus costs. Of particular note, they also sought an interim or interlocutory injunction and a permanent injunction requiring Canada to construct or approve and fund construction of appropriate water systems to ensure Class Members have adequate access to potable water.
[28] The Defendant did not file Statements of Defence because the Settlement was reached relatively early in the proceeding. Initially, Canada opposed the relief sought by the Class stating that it had no liability to the Class. The affidavit of John P. Brown, a lawyer for Class Counsel, explains that Canada’s public position “was that it funded water systems on reserves rather than manage[ing] them, and that it could not be liable for funding decisions that reflected a core policy.” On December 7, 2021, during the Motion for Settlement Approval, Class Counsel explained that their team anticipated that Canada’s defence would be similar to that in Okanagan Indian Band v Attorney General of Canada, Vancouver T-1328-19 (FC) [Okanagan]. Okanagan is an ongoing Federal Court case dealing with similar claims.
D. Procedural History of the Action
[29] The Manitoba Court of Queen’s Bench certified the Manitoba Action on July 14, 2020. On September 16, 2020, with the consent of the Defendant, the Representative Plaintiffs in the Federal Action brought a motion for certification. The Federal Court certified the Federal Action on October 8, 2020 pursuant to Rules 334.16 and 334.17.
[30] The Courts certified the following common issues:
(a) From November 20, 1995 to the present, did the Defendant owe a duty or an obligation to Class Members to take reasonable measures to provide them with, or ensure they were provided with, or refrain from barring, adequate access to water that is safe for human use?
(b) If the answer to the First Stage common issue is “yes”, did Canada breach its duties or obligations to members of the sub-group?
(c) If the answer to common issue (a) is yes, is any breach of the Charter saved by s. 1 of the Charter?
(d) If the answer to common issue (a) is yes, did the Defendant’s breach cause a substantial and unreasonable interference with Class Members’ or their First Nations’ use and enjoyment of their lands?
(e) If the answer to common issue (a) is “yes” and the answer to common issue (b) is “no”, are damages available to members of the sub-group under s. 24(1) of the Charter?
(f) Can the causation of any damages suffered by members of the sub-group be determined as a common issue?
(g) Can the Court make an aggregate assessment of all or part of any damages suffered by members of the sub-group?
(h) Does the Defendant’s conduct justify an award of punitive damages, and if so, in what amount?
(i) Should the Court order that the Defendant take measures to provide or ensure that members of the sub-group are provided with, or refrain from barring, adequate access to clean tap water?
(j) If so, what measures should be ordered?
[31] The Courts appointed McCarthy Tétrault and OKT as Class Counsel. CA2 Inc. was appointed as administrator for the purpose of giving notice of certification. CA2 Inc. gave notice in accordance with the certification orders. Individuals were included in the Class unless they opted out. There were no opt-outs within the opt-out period, which ended on March 29, 2021. First Nations were included in the Class if they opted in.
[32] On December 30, 2020, the Representative Plaintiffs brought a motion for summary judgment on behalf of the Class. Summary judgment was set to be heard before both Courts, sitting together, on October 4 to 7, 2021. In advance of the summary judgment motion, more than 120 First Nations opted in to the Actions. The Representative Plaintiffs summonsed witnesses and were prepared to proceed with cross-examinations. However, on June 20, 2021, the Parties reached an Agreement in Principle. The Agreement in Principle was executed on July 29, 2021 and the Settlement was finalized on September 15, 2021.
[33] On October 5, 2021, Class Counsel brought a motion to approve the Short and Long Form Notices of the Settlement Approval Hearing, as well as a plan for the distribution of these notices. By way of Order dated October 8, 2021, the notices and the plan for distribution were approved. CA2 Inc. was appointed as administrator to give notice and it did so in accordance with the Courts’ orders. CA2 Inc. gave Notice of the Settlement Approval Hearing on October 16, 2021. That Notice of Settlement contemplated a 45-day late opt-out period for First Nations that first experienced long-term drinking water advisories after the Actions were certified. There were no late opt-outs.
[34] On November 17 and 18, 2021, respectively, the Courts provisionally appointed Deloitte LLP as the Administrator for the Settlement Agreement [Administrator].
E. Settlement Agreement: Key Provisions
(1) Basics
[35] Importantly, the Settlement Agreement contemplates and ensures both retrospective and prospective compensation. The Settlement Agreement provides First Nations and individuals resident on those First Nations with compensation for lack of regular access to safe drinking water. The Settlement also commits Canada to work with First Nations to provide access to clean water and requires Canada to construct and fund appropriate water systems for First Nation communities. The key terms and provisions are set out below.
(a) Class & Class Period
[36] The Class Period runs from November 20, 1995 to present. The Class includes (a) Individual Class Members and (b) First Nation Class Members [collectively, Class Members]. Mr. Gorham’s affidavit states there are approximately 142,300 Individual Class Members, of which more than 60,000 are minors, and 258 eligible First Nation Class Members.
[37] Individual Class Members include individuals, other than Excluded Persons, who are members of a band [First Nation] as defined by the Indian Act, RSC 1985, c, I-5 [Indian Act], whose lands are subject to the Indian Act or the First Nations Land Management Act, SC 1999, c 24, and whose lands were subject to a drinking water advisory (whether a boil water, do not consume, or do not use advisory, or the like) that lasted at least one year from November 20, 1995 to present [Impacted First Nation]. Those individuals must not have died before November 20, 2017 and must have ordinarily resided in an Impacted First Nation while it was subject to a drinking water advisory that lasted at least one year.
[38] First Nation Class Members include Tataskweyak, Curve Lake, Neskantaga, and any other Impacted First Nation that elects to join this action in a representative capacity.
[39] “Excluded Persons” are members of Tsuu T’ina Nation, Sucker Creek First Nation, Ermineskin Cree Nation, the Blood Tribe, the Okanagan Indian Band, and Michael Darryl Isnardy. These persons are excluded from the Settlement because they have ongoing actions related to drinking water on reserves. When the Actions were initiated, these persons requested that they be excluded so that their ongoing litigation would not be affected.
(b) Retrospective Compensation
[40] Under the Settlement Agreement, Canada has agreed to pay individual Class Members a total of 1.438 billion dollars into a trust fund to be distributed to the Class Members, including by paying individual damages in accordance with Article 8, section 8.01(2)(a). Individual Class Members will be paid:
2000 dollars per year for people in remote First Nations under long-term drinking advisories;
2000 dollars per year for people in non-remote First Nations under do not use advisories;
1650 dollars per year for people in non-remote First Nations under do not consume advisories; and
1300 dollars per year for people in non-remote First Nations under boil water advisories.
[41] Damages for Individual Class Members will be subject to how many individuals make a claim and how many First Nations join the class action. Prorated amounts will be paid for any partial years after the first full year. Furthermore, damages for Individual Class Members are subject to a synthetic federal limitation period. This means that individuals born after 1995 can claim for all the years and portions of the years between November 20, 1995 and June 20, 2021 while they were ordinarily resident on reserve during a drinking water advisory that lasted a year or more. Individuals born before November 20, 1995 can claim for all years and portions of years between November 20, 2013 and June 20, 2021 where they were ordinarily resident on reserve during a drinking water advisory that lasted a year or more.
[42] Individuals who have suffered specified injuries because of drinking water advisories can claim additional compensation from a specified injuries compensation fund totalling 50 million dollars (Article 5). To claim damages for a specified injury a person must have been ordinarily resident on a reserve under a drinking water advisory for at least a year while the advisory was in place. Furthermore, the injury must have occurred during that time. Individuals suffering specified injuries will only be able to claim for injuries that happened or continued during drinking water advisories after November 2013. Individuals born after November 20, 1995 will be able to claim for injuries going back to that date. The person making the claim must show that they suffered the injury and that the injury was caused by using the water in accordance with the drinking water advisory or by restricted access to safe water caused by the advisory.
[43] Finally, 400 million dollars will be used to establish a First Nations Economic and Cultural Restoration Fund. From that fund, First Nation Class Members will receive a base payment of 500,000 dollars and an amount equal to 50% of the damages, not including specified injuries, paid to individual Class Members living on that First Nation’s reserve. The retrospective compensation received by First Nation Class Members reflects the harms to the community, which are different from the harms to its individual members. First Nations are free to use that money for any purpose.
(c) Prospective Relief
[44] In addition to compensating First Nations and their members, Canada has also agreed to provide funding to fix the problem moving forward. The stated intention of the parties is that the future never again resembles the past. Concretely, Canada has committed to taking all reasonable steps to remove long-term drinking water advisories affecting Class Members, including doing everything set out in their Long-Term Drinking Water Advisory Action Plan [Action Plan], which will be updated on an ongoing basis. Formerly a political promise, Class Counsel submits that the Action Plan becomes a legally enforceable obligation under the Settlement.
[45] Additionally, the Settlement requires Canada to take “all reasonable efforts” to ensure that Class Members have regular access to safe drinking water in their homes [the Commitment]. This water must meet either federal or provincial water quality standards, whichever is stricter. The amount of water must be enough that it allows people to use water for all the usual things people in Canada use water for, like drinking, bathing and showering, making food, washing dishes, and cleaning their home and clothes. In support of the Commitment, Canada is required to spend at least 6 billion dollars through March 31, 2030 at a rate of at least 400 million per year on water and wastewater on First Nation reserves. Class Counsel described this 6 billion as the “floor” rather than the “ceiling.” Under the Settlement, Canada must use this money to fund the actual cost of construction, upgrading, operation and maintenance of water infrastructure on First Nation reserves.
[46] Further, Canada has committed to take reasonable efforts to repeal the Safe Drinking Water for First Nations Act, SC 2013, c 21 and replace it with legislation that is developed through consultation with First Nations. The Settlement also requires Canada to spend 20 million dollars in funding through 2025 for a First Nations Advisory Committee on Safe Drinking Water. That Committee will work with ISC to support forward-looking policy initiatives and provide strategic advice. Additionally, Canada will provide 9 million dollars in funding through 2025 for Class Members’ water governance initiatives and 50 million for the cost of administering the Settlement Agreement.
(2) Alternative dispute resolution process for Commitment disputes
[47] The Settlement Agreement and Schedule K contemplate different stages of dispute resolution. Any disputes related to the Commitment (i.e., where Canada and a First Nation cannot agree on whether Canada is meeting its Commitment under the Settlement Agreement and about proposed plans for meeting its Commitment) proceed through a specific alternative dispute resolution process [ADR Process]. Class Counsel submitted that the ADR Process integrates Indigenous Legal Traditions. It should be noted that the ADR Process promotes the use of Indigenous languages and where necessary, will occur on the First Nations’ respective reserves while utilizing certain protocols such as gift giving, Elder participation, and traditional teachings. Engagement with the ADR Process entails the following steps:
If a First Nation determines that Canada is not meeting or has ceased meeting the Commitment, the First Nation must let Canada know (section 9.06 (1)).
Canada then has an obligation to consult with the First Nation to try to meet the Commitment as soon as possible. Canada must also pay the costs of any technical advice the First Nation needs to determine what Canada must do to meet the Commitment (sections 9.06(2), (3)).
Canada must make all reasonable efforts to reach an agreement with the First Nation that identifies the steps Canada will take to fix the issues (section 9.06(4)).
If Canada does not comply with the agreement or if the parties do not reach an agreement within three months, the First Nation can start the ADR Process. The ADR Process proceeds through negotiations, mediation, and, if no agreement can be reached, arbitration (section 9.07).
[48] In short, on a matter of such great and fundamental importance — the provision of safe drinking water — Canada will not be the final arbiter respecting its own efforts in relation to the Commitment outlined in the Settlement Agreement. Further, all of the phases outlined above must be completed within strict timelines.
[49] Under the Settlement, Canada will pay the reasonable costs of convening the ADR Process, together with the reasonable fees and disbursements of any mediator or arbitrator. Canada will also pay half of the reasonable costs and disbursements of a First Nation’s participation in the ADR Process.
(3) Supervisory Role of the Courts
[50] Under Article 1, section 1.16 of the Settlement, the Courts maintain jurisdiction to supervise the implementation of the Agreement in accordance with its terms, including the adoption of protocols and statements of procedure and may give any directions or make any orders that are necessary for those purposes.
(4) Claims Process
(a) First Nation Class Member Damages
[51] To participate in the Settlement, First Nation Class Members must give notice of acceptance to the Administrator. The Parties have provided the Administrator with a list [List] identifying, to the best of the Parties’ knowledge, the First Nations eligible to become First Nations Class Members. Inclusion on the List is conclusive proof that the First Nation is eligible to be a First Nation Class Member. If the First Nation is not on the List, the Administrator shall consult with the Settlement Implementation Committee before determining whether the First Nation is eligible to be a First Nation Class Member. The Administrator may request additional information or evidence before making the determination as to whether a First Nation is eligible to be a First Nation Class Member.
(b) Individual Class Member Damages
[52] Individual Class Members wishing to make a claim for retrospective compensation (including a claim for a specified injury) must submit a claims form. The claims form is simple and requires the following: identifying and contact information; what First Nations the claimant is a part of; dates of residence on reserves experiencing long-term drinking water advisories; representative information; declaration and consent; and details about a specified claim, if applicable.
[53] Section 17 of Schedule F of the Settlement outlines the Claim Process. Schedule F states that for those making a specified injuries claim, a claimant may submit some or all of the following to the Administrator in support of their claim:
Medical records of the injury and its cause;
Other records, including written records, photographs, and videos, of the injury and its cause;
A written statement; and
Oral testimony.
[54] Section 18 of Schedule F states, “the process of claiming compensation for Specified Injuries is intended to be non-traumatizing and section 17 of this Schedule F does not prevent a Claimant from establishing their eligibility for Specified Injuries Compensation on the basis of their Claims Form alone.” The burden of proof for establishing a specified injury is on the balance of probabilities.
[55] The claims process will commence within 60 days of settlement approval. The Administrator will promptly review each claims form, band council confirmation, and other relevant information to determine if the claimant is eligible and calculate the claimant’s entitlement. When the Administrator pays compensation to the claimant, the Administrator must also explain how the amount was calculated and that the claimant may appeal the Administrator’s decision to the Third-Party Assessor.
(c) Third Party Assessor
[56] When an individual or First Nation claimant wants to appeal a decision of the Administrator, the claimant must provide a written statement to the Administrator within sixty days of receiving the Administrator’s decision. That written statement must explain how the Administrator erred. The Administrator will forward the materials to the Third Party Assessor. When considering an appeal, the Third-Party Assessor may consult the claimant, the Administrator, and the Settlement Implementation Committee. The Third-Party Assessor may also request further evidence to support the claim. The Third Party Assessor’s decision is final and not subject to appeal or review.
(5) Counsel Fees
[57] Class Counsel’s fees are severable from the rest of the Settlement and subject to a different Order and Reasons issued separately but concurrently by both Courts. In other words, the Courts can approve the Settlement separate from the approval of Class Counsel’s fees. The Courts’ refusal to approve Class Counsel’s fees would have no effect on the implementation of the Settlement Agreement. Additionally, Class Counsel’s fees were negotiated after the Settlement was reached and do not take money away from Class Members.
(6) Appeal Period
[58] Following the approval of the Settlement, a Class Member may appeal the Orders of the Courts within thirty days. Under Rule 334.31(2) of the Rules there is an additional thirty days for a Class Member to apply for leave to appeal to exercise the right of a Representative Plaintiff’s right of appeal if no Representative Plaintiff commences an appeal within the first thirty days. This means that the earliest Implementation Date, as defined in the Settlement, is sixty days from the Courts’ Orders. Thereafter, the Proposed Settlement Agreement will become binding on all Individual Class Members. The Proposed Settlement Agreement will become binding on First Nations as they formally accept its terms.
(7) Release
[59] Importantly, in exchange for everything discussed above and as set forth in the Settlement, Class Members agree to release Canada in respect of any liability for failing to provide, or fund the provision of safe drinking water on their reserves through the end of the Class Period.
III. Issue
[60] The sole issue on this motion is whether the Courts should approve the Settlement Agreement. Mindful of the governing law and legal test, that issue reduces to the following question: is the Settlement Agreement fair and reasonable and in the best interests of the Class?
[61] It should be noted that a separate set of reasons, also concurrently released by each Court, assesses the question of whether the Court should approve Class Counsel fees.
IV. Analysis
A. Legal Framework
[62] Rule 334.29 of the Rules and section 35(1) of The Class Proceedings Act state that class proceedings may only be settled with the approval of a judge. The relevant test for approving a settlement is whether the Settlement is “fair and reasonable and in the best interests of the class as a whole” (Merlo v Canada, 2017 FC 533 at para 16; Toth v Canada, 2019 FC 125 at para 37; McLean v Canada, 2019 FC 1075 at para 65 [McLean]; Tk'emlúps te Secwépemc First Nation v Canada, 2021 FC 988 at para 36 [Tk'emlúps]; Gray v Great-West Lifeco Inc, 2011 MBQB 13 at para 58). Recently, in Tk'emlúps, Justice McDonald summarized the appropriate approach that should inform a court’s application of the governing legal test:
[37] The Court considers whether the settlement is reasonable, not whether it is perfect (Châteauneuf v Canada, 2006 FC 286 at para 7; Merlo, at para 18). Likewise, the Court only has the power to approve or to reject the settlement; it cannot modify or alter the settlement (Merlo, at para 17; Manuge v Canada, 2013 FC 341 at para 5).
[39] …as noted in McLean (para 68), the proposed settlement must be considered as a whole and it is not open to the Court to rewrite the substantive terms of the settlement or assess the interests of individual class members