Curve Lake First Nation takes water crisis to court

Community hasn’t had drinkable water for more than three decades

Chief Emily Whetung of Curve Lake First Nation says her community has had “undrinkable water” since before she was born 34 years ago — and now she’s pursuing the matter in court.

Whetung, a lawyer, is a representative plaintiff in a class-action lawsuit filed in federal court over the lack of safe drinking water for First Nations across Canada.

For decades Curve Lake has had 10 to 15 boil-water advisories yearly, according to court documents, and often must have its drinking water trucked into the community because wells have gone dry. One section of Curve Lake was under a boil-water advisory for nearly two years, the court documents state — from July 20, 2016 until June 6, 2018.

“The inequality in access to clean drinking water for Indigenous communities has hit a breaking point,” Whetung wrote in a statement emailed to The Examiner.

While the federal government has tried “to begin fixing it,” Whetung writes — she mentions that Curve Lake received $2.2 million in federal funding to design a new water treatment plant last year — she wants to “change the conversation” about water.

Curve Lake is launching the suit jointly with Neskantaga First Nation, a remote fly-in community north of Thunder Bay. Chief Christopher Moonias is the other representative plaintiff, along with Whetung. Neskantaga has had Canada’s longest-running boil-water advisory: it’s been ongoing for 25 years, state the court documents, and the water is unsafe to the touch and causes skin rashes, sores and permanent scarring. Other First Nations that have been advised to boil, not use or not drink their water for periods of more than a year, since 1995, are eligible until March to join the class.

The plaintiffs are suing the federal government for appropriate water systems or $2.1 billion in damages. If the claims are not dismissed or settled, a trial is expected in Ottawa.

The Manitoba Queen’s Bench has also decided that a second class action over lack of safe drinking water can proceed. In that claim the representative plaintiff is Chief Doreen Spence of Tataskweyak Cree Nation, a

remote community 140 kilometres north of Thompson, Man., that has been under boilwater advisory since 2017.

As reported earlier this month in The Globe and Mail, both the Curve Lake/Neskantaga and the Tataskweyak claims allege that the federal government breached its fiduciary duties, the Constitution Act and sections of the Charter of Rights and Freedoms that ensure equality, right to life and security of the person and freedom of religion (since water is included in ceremonies).

Curve Lake First Nation’s small-scale water treatment plant was built in 1983 and was designed to serve a single subdivision in the community for 20 years, states the lawsuit, yet it continues to serves 56 homes on the reserve.

Federal inspectors found the plant in good shape in 2017, the lawsuit states, though an inspection from the provincial Ministry of the Environment and Climate Change a few months later found the plant faulty. The plant needed repair or replacement under the ministry’s guidelines, states the lawsuit, but since the system’s maintenance falls under federal jurisdiction there was nothing the province could do.

A further 550 homes aren’t served by the small water treatment plant, the suit states. Instead, they’re on private wells that often run dry or are often contaminated by nearby septic systems.

The suit also says Curve Lake would need a new $50-million water treatment plant, drawing water from Buckhorn Lake.

In January 2018, Women and Gender Equality Minister Maryam Monsef — who is also the MP for Peterborough-Kawartha — was quoted in The Examiner promising to ensure safe drinking water for Curve Lake First Nation within three years.

In July, $2.2 million in federal funding was granted to Curve Lake for the design of that new $50-million water treatment plant. But the federal government announced in early December that it couldn’t fulfil its commitment to end water advisories on all First Nation communities by March 2021 due to delays in upgrading water systems wrought by the COVID-19 pandemic.

Monsef did not comment for this story; her staff said it would be inappropriate since the matter is before the courts.