Manitoba sues flooded-out First Nations
Government responds to class-action lawsuit with claims of its own
The Manitoba government is suing several First Nations that were hardest hit by the 2011 flood, responding to a $950-million potential class-action lawsuit with legal action of its own.
In a statement of defence filed on April 17, the provincial government denies responsibility for damages arising from severe flooding in the spring of 2011.
However, the province has also filed third-party claims against the four First Nations where the class-action participants are from, as well as the federal government.
The lawsuit was filed in April 2012 on behalf of residents from the Dauphin River, Little Saskatchewan, Pinaymootang and Lake St. Martin First Nations.
It claims the province was negligent in its operation of a number of water-control structures, including the Shellmouth Dam and the Portage Diversion, causing excessive flooding on their reserves as a result.
Russell Raikes, one of the lawyers involved in the lawsuit, says the government's response seems to be to turn around and sue the First Nations.
"The Government of Manitoba says, 'Firstly, we didn't do anything wrong,'" Raikes told CBC News.
"Then they say, 'Secondly, if we did do something wrong and we're responsible to pay, you have to contribute.'"
Share the blame, province argues
In court documents, the government states, "If the plaintiffs have suffered losses or damages as alleged, which is not admitted, such losses or damages were caused or contributed as a result of the collective or individual negligence of the Government of Canada, the First Nations or the plaintiffs."
The province goes on to cite "housing and infrastructure which they knew or ought to have known was not suitably constructed" and building on lands "that they knew or ought to have known was or would continue to be prone to flooding," as well as "failing to properly protect … property during the course of the flooding" and "failing to mitigate any damage to property."
Raikes said he is outraged.
"Essentially, what the province does is they say, 'Look, if there's flooding here, and if we caused it, it was made a whole lot worse by you.' Which is nonsense," he said.
The allegations contained in the lawsuits have not been proven in court.
Premier defends move
A Manitoba government spokesperson told CBC News the legal action does not aim to re-victimize flood victims, but it's an attempt to point out that Ottawa is responsible for infrastructure and flood protection on First Nations.
The province feels that First Nations deserve better, the spokesperson added.
Premier Greg Selinger defended the move on Friday, saying the province had no choice but to respond to the potential class action.
"Every time a statement of claim is made, you have to file a statement of defence. The lawyers can work on that," he said.
"What we want to do is get people home safely. We want them in communities that will not flood in the future."
Selinger said the new Lake St. Martin channel and Lake Manitoba outlet, announced earlier this week, will help prevent future flooding on the First Nations.
"Any time you get litigation, you can strain relationships, which is why we've put our exclusive focus on working with people to build their communities for safety for the future," he said.
But when asked by the CBC's Ryan Hicks why the First Nations are also being sued, the premier did not give a direct answer.
"So if the problem is the federal government, why are the First Nations also named in this lawsuit?" Hicks asked.
"Again, lawsuits are for lawyers," Selinger replied. "What we're interested in is safe communities for the future."
'A slap in the face'
The Lake St. Martin First Nation was one of the hardest-hit communities in the 2011 flood.
Band spokesman Dennis Cameron said Chief Adrian Sinclair and councillors were stunned to hear of the government's allegations against them.
"They're a little bit distraught and dumbfounded as to how they are all of a sudden being targeted or being blamed for … being responsible for such actions," he said.
"How does one go about pointing the finger at Lake St. Martin when they have no control over the water control levels? They have no authority whatsoever to determine when to release water, where to release it. That all lies within the hands of the province."
Cameron said the province's latest action is "ironic and a slap in the face."
The province has also filed third-party claims against the Little Saskatchewan and Dauphin River First Nations.
"It's actually astounding and reprehensible and, quite frankly, just plain wrong," said Winnipeg lawyer Harley Schachter, who is representing both communities.
"For the province to … allege that chief and council are somehow at fault for what has befallen them is actually bordering on abusive," he added.
"It reminds me, quite frankly, of the guy who abuses his wife, hits her all the time, and blames her for having her face in front of his fist when he swings."
Schachter said fair-minded Manitobans know that First Nations in the Interlake were "sacrificed to save the homes and personal belongings of tens of thousands of Manitobans and sacrificed to save the farmers' fields, all of which would have been flooded."
Little Saskatchewan First Nation Coun. Al Shorting said he was taken aback to learn of the government's lawsuit.
"Well, that's pretty stupid because they're the ones that are creating the damage," he said.
"They're the ones that created the Portage Diversion. Those are the people responsible for the flooding!"
Province called the shots, says co-ordinator
The province has also filed a claim against the Pinaymootang First Nation, also known as the Fairford First Nation.
Cliff Anderson, who was the First Nation's flood co-ordinator during the 2011 flood, said when it comes to the government's claim, he'll keep his response to himself.
"I have my own thoughts on that, but it's not something that's printable," he said.
Anderson, who is also the lead plaintiff in the potential class-action lawsuit, said it isn't as if First Nations were calling the shots during the flood — it was the government.
"I think they came back three times, revising how high the water was going to be," he said.
"In the end, after a while, we couldn't get back to the sites to re-top the dikes that we had."
Anderson said he doesn't disagree that things might have been different for everyone concerned.
"If they had given us a good answer right at the start [on] how high the water was going to be … maybe we would have had proper flood protection in place," he said.
Raikes said the province's strategy of filing five separate claims makes things more complicated than they need to be.
"They're just trying to play divide and conquer," he said, adding that the strategy means one First Nation could be played off against another, allowing separate deals to be cut.
The province is also opposing the motion to certify the class action.
Raikes said he is still hopeful they may be in court this fall, but he admits it may be late this year or the beginning of next year before things get moving.
Documents: Manitoba government's response
Below are the court documents the Manitoba government has filed in response to the $950-million potential class action involving residents of four flooded First Nations.
Included are the province's statement of defence and its third-party claims against the Dauphin River, Little Saskatchewan, Pinaymootang and Lake St. Martin First Nations and the federal government.
With files from the CBC's Ryan Hicks