Author: Hymie Rubenstein
In an ongoing legal appeal, the Government of Canada argues that a federal court judge made several errors in a 2025 finding that it had a duty to provide two remote Indian Band communities in Manitoba with adequate housing and safe drinking water.
This appeal is the first stage of class-action lawsuits that could eventually cost the government hundreds of billions of dollars, if expanded to other remote indigenous reserves, whether attached to this case or not.
The Assembly of Manitoba Chiefs and the leaders of Shamattawa and St. Theresa Point Indian Bands held a news conference on October 27, where they questioned the federal government’s decision to appeal and called on Canada to uphold its treaty obligations.
“These are without a doubt some of the most consequential appeals that my colleagues and I will ever argue,” Michael Rosenberg, the lawyer representing the Indian Bands, said at the news conference.
“This is not a case about hardship in the abstract. Canada is not a bystander to class members’ plight. This country was built on their dispossession.”
The appeal challenges Federal Court Justice Paul Favel’s finding late last year that the government should have provided adequate housing to St. Theresa Indian Band, Sandy Lake Indian Band and other members of a $5-billion class action certified in 2024.
Favel, a member of the Poundmaker Cree Indian Band, said the class members’ reserves were generally short “hundreds of houses to adequately shelter their populations,” with many families forced to live in condemned units.
In a separate decision, Favel found Ottawa also had a duty to provide Shamattawa Indian Band and other Indigenous communities subject to drinking water advisories after June 20, 2020, with water suitable for human consumption.
That $1.1-billion class action builds on an earlier action over drinking water advisories that led to an $8-billion settlement in 2021.
The October 28 hearing mostly revolved around the water decision. Federal government lawyers argued the judge made several legal and evidentiary errors.
Among other observations, they said Favel completely disregarded evidence presented by the Crown while accepting evidence no longer relevant to the period the class action covers.
“The analysis on the core legal issues all considered historical evidence,” said government lawyer Willemien Kruger. “It is possible that the motions judge… wasn’t persuaded by our evidence, but it is still the fact that it had to be addressed.”
The petitioners also said Favel’s views would oblige Canada to care for all aspects of on-reserve programs and services, which would run counter to Canada’s policy of supporting indigenous self-government.
A second stage would deal with the scope or existence of any fiduciary breaches and potential remedies. Rosenberg opined that Canada would argue that it fulfilled its duties or that it ultimately has no liability during that second stage.
While no further reports about the proceedings are available, they are bound to concern the Treaty rights given to these two bands.
Though I’m no legal scholar by a long shot, I know that none of the treaties Indigenous people freely signed with the British or Canadian governments during the 19th and 20th centuries included a requirement to provide safe drinking water or reserve housing.
Instead, the historic treaties (those signed before 1975) often, but not always, include land to be set aside for Indian reserve use only, monies paid annually to a band and its members, hunting and fishing rights on unoccupied Crown land, and schools and teachers on reserves funded by the government.
Nevertheless, Shamattawa launched the class action, which was certified in 2023, on behalf of all Indian Band members countrywide whose communities were subject to a drinking water advisory in effect on or after June 20, 2020.
Favel claimed in his December 5, 2025, decision that the federal government had to ensure the Shamattawa Indian Band and other bands that opted into the northern Manitoba class-action suit received safe drinking water during the claim period.
The judge also found in a separate ruling that residents of St. Theresa Point Indian Band in northeastern Manitoba, Sandy Lake Indian Band in northern Ontario, along with other class-action members, should have been provided with adequate housing on their reserves from June 12, 1999, until the present — the class period defined in the lawsuit.
In both decisions, Favel said that the Canadian government made aboriginal people dependent by forcing them to relocate to reserves, and that the country has historically “exerted direct control over every facet of indigenous First Nations life through legislation, regulations, policies, and practices,” including control over financing for water infrastructure and housing.
These statements fly in the face of the voluntary signing of Treaty 5 by the ancestors of both Bands and neighbouring groups in 1875-76 and 1908-10.
Much of what is today central and northern Manitoba was covered by the treaty, as were a few small adjoining portions of the present-day provinces of Saskatchewan and Ontario.
These treaties are protected by the 1982 Canadian Constitution and take precedence over its other provisions.
Section 25 says: “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
Section 35 says: “(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed …. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.”
While superficially correct, Favel’s statements that aboriginals were not allowed to leave their reserves, presumably to secure clean water or adequate housing in this case, are irrelevant to the matter at hand.
Under the “pass system,” 1885-1941, a haphazardly observed regulation that ended long before contaminated water became an issue on many reserves, its purpose was to protect aboriginal people “… from the rest of society for their own good, as contact tended to be injurious to them.” This was particularly true about reducing easy access to alcohol, which resulted in widespread alcoholism.
The $5-billion St. Theresa Point and Sandy Lake class-action also said the federal government “deliberately underfunded housing on reserves,” while restricting its ability to provide housing.
“Class members’ reserves are generally short hundreds of houses to adequately shelter their populations,” Favel wrote, saying that many families are forced to live in condemned units because they have no other options.
To repeat, housing is unmentioned in any of the Treaties. It also needs to be asked who provided Indigenous Bands with housing prior to colonization. The short answer is that they provided this themselves on an individual and family basis.
Moreover, what other Canadians are provided with free housing? Canada’s housing market operates primarily through private ownership and rental systems. Yes, federal, provincial, and municipal governments offer various forms of financial assistance and subsidized housing for low-income residents, seniors, people with disabilities, and eligible newcomers, whether they are indigenous or not. Apart from young or middle-aged people with severe disabilities, the only significant cohort of Canadians provided with food, clothing, and shelter are elderly impoverished people who are terminally ill. If their families cannot care for them, they either become homeless or are supported by the state or by private entities heavily dependent on state funding.
As for safe water, whether cottagers or full-time residents, non-indigenous Canadians living in remote areas of the country must provide their own drinking water.
Also challenging Favel’s rulings is the Federal Budget 2026 just tabled by Prime Minister Mark Carney’s government, which commits a historic total of $50 billion over 10 years for programs and services directed at indigenous peoples.
A total of $32 billion over 10 years is earmarked for Indian Band infrastructure and housing, covering roads, bridges, schools, health facilities, and water plants starting in 2027–28. It also provides nearly $13 billion for maintaining, repairing, and constructing homes on reserves.
None of these expenditures are mandated by either the Treaties or the Constitution.
Finally, there is the issue of possible judicial bias.
While in private practice prior to his appointment to the Federal Court in 2017, Justice Favel acted largely for aboriginal clients, was a member of the Oversight Committee of the Indian Residential School Settlement Agreement, taught “First Nations economic development” at the University of Saskatchewan College of Law, and, according to the government website announcing his judicial appointment, is “a member of Poundmaker Cree Nation, (who) maintains close connections with his community and served on the Band Council from 2012 to 2013.”
Regardless of which side prevails in this appeal, this battle over water and housing rights is bound to eventually reach the Supreme Court of Canada.
Hymie Rubenstein is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy.