I have to be honest: When I first started looking into this issue, I wasn’t sure it was a story. Don’t Canadians already know about the country’s failure to provide drinking water to these communities? The problem has, after all, been around for a while. What could I possibly say that was new and illuminating? What new insights could I offer? But I am nothing if not obdurate. So I kept asking, kept phoning around.

What I found struck me: First Nations fed up with waiting are taking their cases to Canada’s courts. And Canada’s federal government, which for years pledged to end such states of undrinkable water and whose leaders still make statements about the importance of building water infrastructure, has been taking an increasingly aggressive stance on these court cases.

As I found through hours of interviews and poring over reams of legal documents, this goes beyond quotidian legal battles. 

In Alberta, Canada pulled the plug on settlement talks with four First Nations, setting the stage for a potentially protracted litigation showdown with people who’ve been dealing with cloudy, undrinkable water for decades.

In northwest Ontario, in fighting a lawsuit brought by Pikangikum First Nation, Canada is arguing the First Nation’s drinking water problem has persisted for so long, Canada can no longer be held responsible for it. This is a striking argument on its face – as the nation’s lawyer argued in our interview, “The wrong keeps going” – but it’s also notable because it runs counter to previous guidance issued to government lawyers.

Pikangikum opened my eyes to what a lack of usable water does to a person, a family, a community. Sure, drinking comes first to mind. But what about firefighting? What about toilet training when all you’ve got is an outhouse and it’s 40 below? What about treating lice when you’ve no water to mix with your special shampoo? I take so much for granted in urban Canada.

In addition to the Alberta nations and the Pikangikum case, the federal government is seeking to overturn a First Nations win, appealing a summary judgment from late last year that found Canada owes a fiduciary duty to First Nations when it comes to drinking water. The judge erred in his findings, feds argue.

Did I miss something? Has this always been Canada’s practice and I, litigation ignoramus, just never clocked it? First Nations lawyers tell me no. “I think we’ve seen a real shift in the litigation posture” of the federal government on this file, lawyer Michael Rosenberg told me.

The federal government wouldn’t say what’s behind this evident shift. They did tell me how important it is that everyone in Canada has safe drinking water.

One big question I had: How much is this costing? As a Canadian taxpayer you’re footing the bill for these legal tussles. So I filed an access-to-information request for the legal costs of four First Nations drinking water cases.

The response: A list of cases – and a big white rectangle. All costs were redacted, citing solicitor-client privilege. The federal government doesn’t want you to know how much it’s spending fighting First Nations on drinking water. We at the IJB disagree. We have filed an appeal.

Meanwhile the litigation continues. Some of Rosenberg’s clients were in court the other day arguing what they characterize as a breach of the government’s obligations under a drinking water settlement agreement: Where, they wonder, is the promised federal drinking water legislation, whose first iteration died when Parliament was paused last year? It’s coming by June 19, the feds promised.

We’re keeping an eye out for that, and for other developments on this file. Because drinking water matters. Government litigation – fought in your name, with your money – matters. And we’re always on the lookout for the next story.

If you have one, reach out: amehlerpaperny@ijbureau.org.