For decades, Canada has struggled to provide safe and equitable drinking water services and wastewater services to on-reserve residents. The funding regime currently in place has not delivered sustainable 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 discussion by proposing a cause of action in tort. I also propose that class actions have the potential to offer an effective procedural tool for advancing 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.