On December 5, 2025, the Federal Court released two milestone decisions – St. Theresa Point First Nation et al v His Majesty the King in Right of Canada and Shamattawa First Nation et al v His Majesty the King in Right of Canada.[1] In Shamattawa, the Court affirmed that Canada owes legal duties to First Nations in relation to on-reserve drinking water.[2] In St. Theresa Point, the Court made similar findings regarding on-reserve housing.[3]
Although Shamattawa concerns access to safe drinking water and St. Theresa Point concerns housing, the Court treated these cases as companion decisions because they raise the same core issue: Canada’s long-standing discretionary control over essential on-reserve services, the dependence and vulnerability this control has created and the foreseeable harms resulting from it.[4]
This Blog begins by reviewing the Court’s key findings in Shamattawa and St. Theresa Point, including that:
- Canada owes a sui generis fiduciary duty relating to on-reserve access to safe drinking water and adequate housing, arising out of the cognizable or known interest in reserve land.[5] The Court emphasized that access to safe drinking water made reserve life possible and is an “unmistakably Indigenous” interest tied to the land”.[6]
- Canada owes an ad hoc fiduciary duty as the Indian Act and the constellation of programs and policies have established that Canada both expressed and impliedly undertook to act in the best interest of First Nations.[7] Second, First Nations and status Indians have remained vulnerable to Canada’s control.[8] Finally, the practical interest in housing and access to safe drinking water on-reserve has been affected by the significant exercise of discretion and control by Canada.[9]
- Canada owes a common law duty of care, as the relationship between Canada and First Nations is proximate, grounded in historical and ongoing control, and it is foreseeable that inadequate funding, policies and delays would cause harm to First Nations;[10]
- First Nations class members have standing to seek Charter relief, and when rights are asserted on behalf of individuals by a representative, relief under s. 15 (equality) is available provided that the factual elements of discrimination are present;[11] and
- Charter rights are engaged in both cases, including s. 7 (life, liberty, and the security of the person), 15 and 2(a) – because unsafe drinking water and inadequate housing affect life, security, equality and spiritual practices.[12] In Theresa Point, the Court also found that s. 2(c) was engaged.[13] Sections 2(a) and (c) are about freedom of religion and peaceful assembly.
The Blog concludes with an analysis of what these decisions mean moving forward. Shamattawa and St. Theresa Point mark a major development in the law of Crown-Indigenous relations, with significant implications for Treaty-based arguments, future class actions, and claims involving other essential on-reserve services.
BACKGROUND: WHAT THESE CASES ARE ABOUT AND HOW THEY FIT TOGETHER
In St. Theresa Point, several First Nations brought a national class action about the on-reserve housing crisis. They argued that Canada’s laws, policies and funding practices had created and sustained a situation where many First Nations people have no access to safe, adequate homes on their reserves.[14]
Shamattawa is also a class action, focused on access to safe drinking water on-reserve. In Shamattawa, the community faced long-term drinking water advisories, contamination and chronic underfunding.[15] This is a continuation of an earlier class proceeding brought by Tataskweyak Cree Nation, Curve Lake First Nation, and Neskantaga First Nation that led to the national drinking water class action settlement[16], using the same class definition, but covering harms from June 20, 2021 onwards.[17]
Shamattawa and St. Theresa Point are split into two stages:
- Stage I: Does Canada owe any fiduciary duties, common law duties of care, or Charter-based duties in relation to on-reserve housing ( Theresa Point) and safe drinking water (Shamattawa)?
- Stage II: If so, has Canada breached those duties, what harms have flowed and what remedies should follow?[18]
The Plaintiffs in Shamattawa and St. Theresa Point brought a summary judgment motion on the Stage I “common issues”. Summary judgment is a procedure where the court can decide legal issues on the basis of written evidence (like affidavits and expert reports), without a full trial. Justice Favel accepted that the Stage I common issues were acceptable for summary judgment, and that there was enough evidence to decide whether Canada owed the duties in question to First Nations.[19]
KEY LEGAL FINDINGS
Canada owes First Nations a sui generis fiduciary duty concerning on-reserve access to housing and safe drinking water
Justice Favel held that Canada owes a sui generis fiduciary duty to First Nations in relation to on-reserve housing (St. Theresa Point) and on-reserve access to safe drinking water (Shamattawa).
Sui generis fiduciary duties are unique to the Crown-Indigenous relationship and flow from the Honour of the Crown.[20] A sui generis fiduciary duty arises where there is:
- A specific or cognizable Aboriginal interest; and
- A Crown undertaking of discretionary control over that interest.[21]
On the first element, the Court held that an Aboriginal interest in reserve land includes an interest in accessing adequate housing and safe drinking water on that land.[22] Housing and land are “inextricably linked”: people live on land and need shelter on that land; without housing, communities could not remain on their reserves.[23] The Court rejected Canada’s argument that the interest must be frozen in the past or cannot take account of modern housing programs. Justice Favel emphasized that Aboriginal interests in land are not frozen in time and are not limited to the bare concept of land as a legal parcel.[24]
The Court in Shamattawa found that this same reasoning applied to access to safe drinking water, as access to safe drinking water made reserve settlement possible.[25] In establishing reserves, First Nations could not live on the land at any point in time without access to safe drinking water.[26]
On the second element, the undertaking of discretionary control, the Court held that Canada has historically exercised, and currently exercises, discretionary control over on-reserve housing and safe drinking water as:
- The Indian Act and federal programs have long governed many aspects of First Nations life, including housing;[27]
- Canada still controls how housing funding is structured and delivered, including conditions, reporting, approvals and timing;[28] and
- The “complex web” of funding arrangements and conditions, and the fact that federal funding often makes up all or most of a Nation’s annual housing budget, means Canada’s decisions effectively determine what housing can be built, where and when.[29]
In Shamattawa, the Court also found that Canada exercised discretionary control required to establish a sui generis fiduciary duty.[30] The Court applied the same approach as it did in St. Theresa Point, and pointed to the “thicket” of required guidelines, protocols and policies that are a condition of drinking water funding.[31] The Court also found that First Nations are vulnerable to Canada’s failure to discharge its fiduciary obligations relating to safe drinking water, as evidenced by long-term drinking water advisories present during the class period.[32]
Canada owes First Nations an ad hoc fiduciary duty concerning on-reserve access to housing and safe drinking water
The Court also found that Canada owes an ad hoc fiduciary duty in relation to housing. The Court then also adopted this reasoning in Shamattawa for safe drinking water.
Ad hoc fiduciary duties to First Nations arise in different circumstances than sui generis fiduciary duties. An ad hoc fiduciary duty arises if the government has undertaken to exercise its discretionary control over a legal or substantial practical interest in the best interests of a First Nation. Ad hoc duties arise as a matter of private law and are not unique to just the Crown-Indigenous relationship.[33]
An ad hoc fiduciary duty arises where:
- The Crown has expressly or implicitly undertaken to act in the best interests of the beneficiaries;
- There is a defined class of vulnerable persons; and
- A legal or practical interest of those persons can be harmed by the Crown’s exercise of control.[34]
Justice Favel held that this test is met in St. Theresa Point as:
- The Indian Act and the constellation of federal programs together show that Canada has undertaken to act in the best interests of First Nations. Ignoring this would overlook the reality and legacy of colonialism.[35]
- First Nations and status Indians on-reserve remain vulnerable to Canada’s control over housing policy and funding, especially because reserves were often created in remote areas with limited opportunities for economic development.[36]
- The practical interest in housing is directly affected by Canada’s decisions. If First Nations cannot navigate complex funding processes or generate their own-source revenue, they cannot secure or maintain safe housing on-reserve.[37]
Shamattawa follows this logic for safe drinking water and adopts the analysis from St. Theresa Point.[38] The Court ultimately concluded that there is also an ad hoc fiduciary duty with respect to safe drinking water on-reserve.[39]
Canada owes First Nations a common law duty of care concerning on-reserve access to housing and safe drinking water
Establishing a duty of care is the first step in determining whether there has been negligence. In Stage I, the Court was not asked to complete a full negligence analysis, but rather just determine whether there is a threshold duty of care.
The test for a duty of care asks whether:
- There is a relationship of proximity in which Canada’s failure to take reasonable care might cause loss or harm; and
- Are there any residual policy reasons outside the parties’ relationship that should negate the duty of care?[40]
Justice Favel held that Canada owes a common law duty of care in both cases.[41] With respect to the relationship of proximity, the Court found:
- The existence of fiduciary duties is an important factor in finding a “proximate relationship” under the test for negligence.[42]
- The historical relationship (Indian Act, reserves, policies) shows Canada’s ongoing control over First Nations and members living on-reserve.[43]
- Canada’s policies, funding mechanisms and legal restrictions create a relationship of proximity and vulnerability, where Canada’s positive or negative decisions could reasonably be expected to affect access to safe, adequate housing.[44]
- Canada has directly “entered the field” in relation to many aspects of First Nations, in particular on-reserve housing. Although Canada is not actually “swinging hammers”, the constellation of laws, policies and funding agreements have created so much control that there are no other options for housing development for First Nations.[45]
On the second element, the Court rejected Canada’s core policy immunity arguments, finding that the history and nature of the relationship between Canada and First Nations leaves “no room” to negate that duty. Recognizing a duty of care here does not undermine Canada’s core policy decisions, and First Nations on-reserve have a different relationship with Canada than other Canadians.[46]
In Shamattawa, the Court also found that the Plaintiffs are owed a duty of care by Canada.[47] Relying on the analysis in St. Theresa Point, the Court found that there is a relationship of proximity, and there were no residual policy reasons why the duty of care should not be recognized and also apply to safe drinking water.[48]
Charter rights are engaged – including possible positive obligations
The Plaintiffs also advanced Charter claims under sections 15 (equality), 7 (life, liberty and security of the person), and 2(a) and (c) (freedom of religion and peaceful assembly).[49]
At Stage I, the Court was not asked to decide whether Canada had breached these rights or whether any limits could be justified. Instead, the question was simply whether the Charter rights were engaged by Canada’s housing and drinking water regimes.[50]
A threshold issue was whether First Nations have standing to seek Charter relief. The Court agreed with the Plaintiffs that First Nations class members have standing to seek Charter relief. Further, the Court found that when rights are asserted on behalf of individuals by a representative, relief under s. 15 is available provided that the factual elements of discrimination are present.[51]
The key findings of the Court in St. Theresa Point with respect to the Charter and Constitution include:
- Section 15 of the Charter is engaged: The record shows federal laws, policies and administrative actions in relation to housing on-reserve, with extensive evidence of Crown-Indigenous interactions on housing.[52] The Court pointed out that the Plaintiffs’ lay and expert witnesses, and Canada’s own witnesses, provided evidence of interactions between the federal government and First Nations on the issue of on-reserve housing.[53] Whether there has been discrimination is left for Stage II.[54]
- Section 7 of the Charter is engaged: The Court noted that s. 7 protects life, liberty and security of the person and the claimant need only prove that one of these is affected.[55] The Court found that, for the same reasoning set out with respect to s. 15, s. 7 is engaged by virtue of s. 32(1) of the Charter.[56] Importantly, the Court also found that this case presents one of the special circumstances where s. 7 may support a positive obligation. Justice Favel accepted at this early stage, that the evidence indicates a possible positive obligation on Canda under s. 7 in addition to the negative obligation not to deprive individuals of their rights.[57]
- Section 2 of the Charter is engaged: In Shamattawa, the Court found that s. 2(a) (religious freedom) is engaged in the drinking water context, and in Theresa Point the Court found that both s. 2(a) and (c) (freedom of peaceful assembly) are engaged, by virtue of section 32(1) of the Charter.[58] Questions of breach were left to Stage II.[59]
- Section 36 of the Constitution Act is not engaged: The Court found that s. 36 is about equalization commitments between Canada and the provinces and was not intended to create duties to First Nations.[60]
The Court in Shamattawa reached the same conclusions with respect to s. 15[61], s. 7[62] and s. 2(a)[63] of the Charter and s. 36 of the Constitution[64] and, as previously stated, was not asked to opine on whether s. 2(c) was engaged.
LOOKING AHEAD: WHAT THESE DECISIONS MEAN MOVING FORWARD
St. Theresa Point and Shamattawa are milestone decisions. For the first time, a Canadian court has expressly recognized that Canada owes legal duties—including sui generis and ad hoc fiduciary duties and a common law duty of care—relating directly to essential services on-reserve such as housing and safe drinking water. These duties are grounded in the history of reserve creation, Canada’s long-standing discretionary control, and the fact that First Nations were compelled to live on-reserve lands without basic services necessary for health, safety, and dignity. The Court confirmed that where Canada designs, funds, regulates, and controls essential services on-reserve, it must do so in a manner consistent with its legal obligations.
Claims Regarding Treaty Rights and the Reserve Land Promise
Shamattawa First Nation is a Treaty 5 Nation. The reserve lands promise in Treaty 5 is very similar to the reserve lands clause in all of the Numbered Treaties. Even so, while the decisions are significant, they do not fully address an important foundation for many First Nations’ claims: the Treaty basis for reserve lands. The Court’s analysis centred on Canada’s discretionary control under the Indian Act and federal programs. That reasoning strongly supports the view that essential services are tied to the nature and purpose of reserve lands. The reserve lands clause of Treaty 5 states:
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for farming lands, due respect being had to lands at present cultivated by the said Indians, and other reserves for the benefit of the said Indians, to be administered and dealt with for them by Her Majesty’s Government of the Dominion of Canada
The fiduciary role of the Crown is set out clearly in the reserve lands clause. However, the Court did not link these duties to Treaty promises to set aside and protect reserve lands for the long-term well-being, governance, and self-determination of the Nations.
For Treaty Nations, this leaves meaningful room to advance Treaty-based arguments. The findings on discretionary control, vulnerability, and the essential character of housing and safe drinking water on-reserve closely align with the commitments Canada undertook in Treaties such as Treaties 5 and 6. These decisions therefore provide a strong platform for future litigation to strengthen the connection between Treaty rights, reserve creation, and Canada’s duty to ensure the conditions necessary for First Nations to live safely and sustainably on their reserve lands.
Claims Regarding Other Essential Services On-Reserve
By confirming that fiduciary duties and duties of care extend to drinking water and housing, the Court opened the door to claims regarding other essential services on-reserve, including wastewater, fire protection, and emergency services. The same logic applies wherever Canada’s laws, programs, and decision-making shape a core condition of life on-reserve. This signals a broader shift in how courts may assess Canada’s responsibilities for the safety and well-being of First Nations living on-reserve.
Claims of First Nations who rely on decentralized drinking water systems
These decisions are also important for First Nations left out of the national drinking water class action settlement (and the class definition in Shamattawa). Many First Nations were excluded from the federal safe drinking water settlement because their on-reserve drinking water systems are primarily decentralized – made up of wells, cisterns and small-scale distribution – rather than centralized community water plants. Other Nations were “Excluded Nations” as they had ongoing litigation before the Courts,[65] and others simply did not meet the class definition. Yet many of these Nations have experienced some of the worst and longest-lasting drinking water advisories in the country and, unlike Shamattawa First Nation, they are not remote communities.
The Court’s findings likely apply equally to decentralized systems because the source of Canada’s duties is not the type of infrastructure – it is Canada’s control over reserve land, decision making and the vulnerability created by the reserve system. Whether a Nation relies on a single plant, or many household wells, Canada still controls funding, approvals, standards, program design, operator training, maintenance support and emergency response.
Claims involving Charter relief
Although the Court did not determine whether Charter breaches occurred, it made two important findings. First, First Nations and representative plaintiffs have standing to seek Charter relief on behalf of class members. Second, ss. 2(a)/(c), 7, and 15 of the Charter are engaged by Canada’s housing and drinking water regimes. This is a significant step toward potential findings of Charter breaches at Stage II, particularly where unsafe housing and water services affect life, security, equality, spiritual practices, and community life.
Together, Shamattawa and St. Theresa Point recognize what many First Nations have long asserted: unsafe living conditions on-reserve are not accidental, they are the foreseeable result of systems designed and controlled by Canada. These decisions establish that Canada can be held legally accountable for those systems. They provide First Nations with stronger tools to insist that Canada meet its obligations, whether through litigation, negotiation, or systemic reform, and to seek meaningful remedies for decades of harm.
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[1] St. Theresa Point First Nation et al v His Majesty the King in Right of Canada, 2025 FC 1926 [St. Theresa Point]; Shamattawa First Nation et al v His Majesty the King in Right of Canda, 2025 FC 1927 [Shamattawa].
[2] Shamattawa at para. 3.
[3] St. Theresa Point at para. 5.
[4] Shamattawa at paras. 6-8.
[5] St. Theresa Point at para. 159.
[6] Shamattawa at paras. 168, 177; St. Theresa Point at paras 154-196.
[7] Indian Act, RSC 1985, c. I-5 [Indian Act]; St. Theresa Point at para. 196.
[8] St. Theresa Point at para. 197.
[9] St. Theresa Point at para. 198.
[10] Shamattawa at para. 180; St. Theresa Point at paras. 245-254.
[11] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK) c 11 [Charter]; St. Theresa Point at para. 262.
[12] Shamattawa at paras. 182-188; St. Theresa Point at paras. 274-285.
[13] St. Theresa Point at para. 284; the Plaintiffs in Shamattawa did not argue that s. 2(c) was engaged (Shamattawa at para. 7).
[14] St. Theresa Point at paras. 6-9.
[15] Shamattawa at paras. 23-28, 32-57.
[16] First Nations Drinking Water Settlement, online: https://firstnationsdrinkingwater.ca/.
[17] The class in Shamattawa includes band members (a) whose reserve was under a drinking water advisory lasting at least one year that continued or began after June 20, 2021; and (b) who, after June 20, 2020 ordinarily lived on their reserve for at least one year while the advisory was in place (Government of Canada, Legal Notice: Are you a member of a First Nation that Has Been Subject to a Long-Term Drinking water Advisory?, online: https://www.sac-isc.gc.ca/eng/1686336214643/1686336310098).
[18] St. Theresa Point at para. 2; Shamattawa at paras. 4-5.
[19] St. Theresa Point at para. 5.
[20] St. Theresa Point at para. 130, citing Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 44.
[21] Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 [Manitoba Metis] at paras. 49-51; St. Theresa Point at para. 158.
[22] St. Theresa Point at paras 159-160; Shamattawa at paras. 166-169.
[23] St. Theresa Point at para. 160.
[24] St. Thersea Point at paras, 160, 162-163;
[25] Shamattawa at paras. 154-175, adopting the reasoning in St. Theresa Point at paras. 159-160.
[26] Shamattawa at para. 168.
[27] St. Theresa Point at para. 166 and 172.
[28] St. Theresa Point at para. 167 and 175.
[29] St. Theresa Point at para. 171.
[30] Shamattawa at paras. 170-173.
[31] Shamattawa at para. 170.
[32] Shamattawa at para. 171.
[33] St. Theresa Point at para. 176.
[34] Manitoba Metis at para. 50; Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 [Elder Advocates] at para. 36; St. Theresa Point at para. 177.
[35] St. Theresa Point at paras. 196.
[36] St. Theresa Point at para. 197.
[37] St. Thersa Point at para. 198.
[38] Shamattawa at paras. 174, 179.
[39] Shamattawa at para. 179
[40] St. Theresa Point at para. 200.
[41] St. Theresa Point at para 245; Shamattawa at para. 180.
[42] St. Thersea Point at para. 246.
[43] St. Thersea Point at para. 247.
[44] St. Theresa Point at paras. 248-249.
[45] St. Theresa Point at para. 251.
[46] St. Theresa Point at paras. 252-253.
[47] Shamattawa at para. 180.
[48] Shamattawa at para. 180.
[49] Note that s. 2(c) was not advanced by the Plaintiffs in Shamattawa but was advanced in St. Theresa Point.
[50] St. Theresa Point at para. 266.
[51] St Thersa Point at para. 262-265.
[52] St. Theresa Point at para. 275.
[53] St. Theresa Point at para. 275.
[54] St. Theresa Point at paras. 262, 276; Shamattawa at para. 182.
[55] St. Theresa Point at para. 280; Shamattawa at para. 185.
[56] St Thersa Point at para. 280.
[57] St. Theresa Point at para. 281; Shamattawa at para. 185.
[58] St. Theresa Point at para. 284.
[59] St. Theresa Point at paras. 285-285; Shamattawa at para. 188.
[60] St. Thersea Point at para. 284-285; Shamattawa at para. 181.
[61] Shamattawa at paras. 182-183.
[62] Shamattawa at paras. 184-186.
[63] Shamattawa at paras. 187-188.
[64] Shamattawa at para. 181.
[65] Members of Tsuu T’ina Nation, Sucker Creek First Nation, Ermineskin Cree Nation, Kainai (Blood Tribe) and Okanagan Indian Band were all excluded due to ongoing litigation.