Certifiable: Can a Class Action Address Canada’s
On-Reserve Drinking Water Crisis?
: For decades, Canada has struggled to provide safe and equit-
able drinking water services and wastewater services to on-reserve
residents. The funding regime currently in place has not delivered sus-
tainable outcomes, and while the underlying issues are multi-faceted,
the regime itself is a significant factor — and despite repeated criticism
and public displays of failure, the regime has not changed. At a time
when Canadians are attempting to work together to move beyond our
colonial legacy and towards reconciliation with Indigenous Peoples in
Canada, we must also address current-day inequities and the policies,
such as those operating in this context, that sustain them.
There have been scholarly discussions addressing the crisis and this
paper intends to add to that discussion. The dominant theme of legal
discourse to date has focused on constitutional law. I add to that dis-
cussion by proposing a cause of action in tort. I also propose that class
actions have the potential to offer an effective procedural tool for advan-
cing the potential claims, and I use the standard Canadian class action
certification requirements as a framework for assessing the form and
preferability of such a proceeding.
CCAR 14-2.indb 391 1/8/2019 10:57:43 AM