Judge dismisses Ontario motion to be removed from Shoal Lake water taking lawsuit

An Ontario judge has dismissed an attempt by the province to be removed from a lawsuit filed by a First Nation over Winnipeg's taking of water from Shoal Lake.   

Iskatewizaagegan No. 39 Independent First Nation (IIFN) filed a claim last November against Ontario and the City of Winnipeg for $500 million for ecological, cultural and financial damages as a result of over 100 years of water taking.

"Shoal Lake is not only a site of recreation, sustenance, and navigation; it is a teacher," reads an affidavit filed by Fred Greene who is a IIFN 39 band member and elder. 

"We bring out youth out on the lake to practise traditional skills, harvesting manoomin (wild rice) or fishing, and in so doing, instill our teachings about everything from the practical skill of catching and cleaning a fish, to the cultural knowledge, values and teachings and laws that accompany this knowledge."

IIFN is also seeking a declaration that Ontario breached its fiduciary duty — its obligation with respect to the protection of the First Nation's lands and properties and any compensation for taking or interfering with them — and another declaration that Winnipeg and Ontario have a duty to create a process for compensation for future damages.

In December, Ontario filed a motion to strike, asking for the court to dismiss IIFN 39's claim against the province for breach of fiduciary duty. 

On Feb. 17, Ontario Superior Court Justice Paul Perell dismissed Ontario's motion to strike. 

Julian Falconer of Falconers LLP is the lawyer representing IIFN 39.

"When Ontario literally sold water out from under the First Nation, it had devastating impacts and this represents the first time a court has recognized that this is a triable issue and needs to be adjudicated," he said. 

A spokesperson for Ontario's Ministry of the Attorney General said in an email that Ontario will not be pursuing an appeal of the decision dismissing the motion to strike but would not comment further because the case is before the courts.

The City of Winnipeg also declined to comment.