On September 15th, the Government of Canada reached an agreement with Curve Lake First Nation, Neskantaga First Nation, and Tataskweyak Cree Nation to settle two class-action lawsuits commenced over unsafe drinking water. This proposed settlement remains subject to court approval.
The settlement affects both First Nations and their members. Eligible First Nation members are automatically included in the settlement and can only “opt out” from the settlement with the court’s permission. If members do not take any action to “opt out”, they will be included in the settlement and may be prevented from bringing future claims relating to Canada’s failure to provide, or fund, safe drinking water prior to June 20, 2021. First Nations are not automatically included in the settlement and must “opt in” to the settlement by passing a Band Council Resolution accepting the settlement and providing this to the Settlement Advisor in order to receive benefits from the settlement. First Nations who opt in may be prevented from bringing future claims relating to Canada’s failure to provide, or fund, safe drinking water prior to June 20, 2021.
The settlement will be going to the Federal Court for approval December 7-9, 2021 and any objections to the settlement must be submitted to class action counsel by November 23, 2021.
Eligibility for the settlement
There are two (2) types of Class Members covered by the settlement:
- First Nation Class Members; and
- Individual Class Members.
First Nation Class Members are First Nations who have had a Long-Term Drinking Water Advisory (a drinking water advisory of one year or more) on their reserve or modern treaty lands between November 20, 1995 to June 20, 2021, and who give notice of acceptance of the settlement agreement.
Individual Class Members are:
- members of a First Nation;
- had not died before November 20, 2017; and
- between November 20, 1995 to June 20, 2021 ordinarily resided on First Nations lands (reserve or modern treaty) for at least one year while it was subject to a Long-Term Drinking Water Advisory (a drinking water advisory of one year or more).
Canada’s commitments in the settlement
Under the proposed settlement, Canada has agreed to:
- pay out nearly $1.5 billion in base compensation for eligible individuals;
- set aside an additional $50 million for compensation for specific injuries suffered by individuals as the result of using treated or tap water in accordance with a Long-Term Drinking Water Advisory or by restricted access to treated or tap water caused by a Long-Term Drinking Water Advisory;
- establish a $400 million First Nation Economic and Cultural Restoration Fund for paying compensation to First Nations for failing to provide safe drinking water;
- spend at least $6 billion on water and wastewater infrastructure on reserves over the next decade;
- provide $20 million in funding for a First Nations Advisory Committee on Safe Drinking Water;
- initiatives; and
- repeal and replace the Safe Drinking Water for First Nations Act.
Some questions you should ask about the proposed settlement
How much compensation could I receive?
Compensation will be given to both First Nation Class Members and Individual Class Members. How compensation is calculated under the Agreement is somewhat complicated. Whether and how much a First Nation or individual will benefit from the settlement varies depending on your circumstances. Interested First Nations should seek legal advice about whether they are eligible under the settlement and how much compensation they and their members could receive.
How will the infrastructure funding be spent?
In addition to compensation, Canada has committed to make reasonable efforts to ensure that class members have regular access to safe drinking water in their homes, and has committed to spend at least $6 billion on water and wastewater infrastructure on reserves to support this commitment. It is unclear how decisions will be made about which First Nations receive this funding and how much they receive.
What will I give up if I am part of the settlement?
If you take part in the proposed settlement you would give up certain rights to bring your own legal claims, including the right to sue Canada for damages prior to June 20, 2021 arising from Canada’s failure to provide or adequately fund safe drinking water.
Under the proposed settlement you would not give up your rights to sue for damages for claims arising after June 20, 2021.
What are my choices?
First Nations who are eligible under the settlement need to decide whether they want to:
- Accept the settlement – get the benefits of the settlement and give up their legal claims against Canada;
- Decline to accept the settlement – get no benefit from the settlement and do not give up their legal claims against Canada;
- Object to the settlement – make submissions to the court that the settlement should not be approved.
When do I have to make a decision?
Eligible individuals are automatically included in the settlement. Any individual who wishes to opt out of the settlement must get the court’s permission and should seek that permission as soon as possible.
First Nations need to accept the settlement if they want to get its benefits. If the settlement is approved, First Nations will have until 270 days after any appeals of the order of the court approving the settlement are determined, or the time for filing an appeal expires, to accept the settlement.
The settlement will be going to the Federal Court for approval December 7-9, 2021 and any individual or First Nation who wants to object to the settlement must submit their objections to class action counsel by November 23, 2021, so you should seek advice as soon as possible about how you might be affected by the settlement.
Please find additional details on the official website for the class action here.
JFK Law are not the lawyers responsible for the class action, however, if we can assist your Nation in understanding the proposed settlement, please contact us at:
Claire Truesdale
604-687-0549 ext. 121
Clayton Leonard
250-405-3460