Leaders from an Oji-Cree First Nation in Treaty 9 in Ontario say they want the Canadian government to take action to properly compensate all their community members enduring a long-term boil-water advisory, after learning most of them won’t be eligible for a class action settlement.
In December 2021, Canada’s Federal Court and Manitoba’s Court of Queen’s Bench jointly approved an $8-billion settlement for First Nations living under drinking-water advisories lasting longer than one year.
The class action included about 142,000 individuals from 258 First Nations, along with 120 First Nations that could be compensated under the settlement.
But Dean Cromarty, deputy chief of Wunnumin Lake, a fly-in First Nation located some 500 kilometres north of Thunder Bay, said the majority of community members are not eligible for compensation because the statute of limitations has expired for most.
Only 84 people from Wunnumin Lake are eligible for individual compensation, out of about 500 people who were living in the First Nation during their boil-water advisory from 2001 to 2005, Cromarty told CBC News.
It means the First Nation and its residents could miss out on some $3 million to $4 million in compensation, Cromarty estimated.
“A lot of our people, they come to us asking why are we not included. We were living here along with those 84 people at the same time,” said Cromarty.
Limitations period passed for many in the community
The $8-billion settlement is for First Nations and their members who lived under a drinking-water advisory that lasted at least one year, during the period of Nov. 20, 1995, and June 20, 2021.
It includes $6 billion to upgrade water infrastructure to help resolve ongoing issues in First Nations, the creation of a $400-million First Nation Economic and Cultural Restoration Fund, and $50 million for people who experienced specific injuries due to the poor drinking water.
There is also $1.8 billion in compensation to individuals and impacted First Nations, but each First Nation needs to sign and deliver a band council resolution declaring their intention to opt in to the agreement, and that includes a list of all their members eligible for compensation. The amount each individual will receive depends on the length and severity of the water advisory, and the remoteness of the First Nation.
Each First Nation that opts in will receive $500,000 plus 50 per cent of the total compensation provided to the individual community members, and there are no requirements for how the First Nation uses that money.
But the age of claimants and how long ago the water advisory was in effect will play a role in whether people are eligible for compensation, said Michael Rosenberg, one of the lead lawyers involved in the class action settlement.
People born before Nov. 20, 1995, are only eligible for compensation for water advisories that were in effect between Nov. 20, 2013, and June 20, 2021, because of federal limitation periods that place detail how long adults have to bring a lawsuit forward after an event happens, Rosenberg said.
“It’s a difficult principle of law, especially for plaintiffs who are often frustrated when they’re told that they did not take action quickly enough,” Rosenberg told CBC News.
Other First Nations could be in similar situation
Other First Nations with long-term boil-water advisories prior to 2013 would be in a similar position as Wunnumin Lake, with many community members ineligible for compensation, Rosenberg said.
Those First Nations will still be compensated with the $500,000, and will be able to “distribute communal damages as they see fit,” he added.
The deadline for First Nations to decide whether to opt in was recently extended to March 7, 2023, and more than 200 out of about 250 First Nations have already accepted the agreement, Rosenberg said.
Cromarty said he still isn’t sure whether Wunnumin Lake will sign on to the settlement.
“We don’t want to go back and open up the legal settlement or anything like that. We want the government to make a political decision to correct this problem facing our community here.”
Cromarty added he wants the government to provide compensation to others in the community who are not eligible under the settlement.
“I’m kind of frustrated by the government’s refusal to correct the situation,” he added.
In a statement to CBC News, Indigenous Services Canada did not answer whether it would provide additional compensation to people whose limitation period had expired.
Instead, the statement said, the government “is firmly committed to improving reliable access to safe drinking water within First Nation communities.”