In St. Theresa Point First Nation v. Canada, 2025 FC 1926, released on Dec. 5, Justice Paul Favel held that Canada’s historical and ongoing control over reserve housing gives rise to both a sui generis and an ad hoc fiduciary duty toward remote First Nations, including those that are isolated and accessible only by air or by ice roads during winter months.
Justice Favel wrote that “the constellation of laws, policies and funding agreements,” including the Indian Act, and federal housing funding and loan programs “have created so much control that there are next to no options for housing development for the Class.”
Representative plaintiff Chief Emeritus Elvin Flett of St. Theresa Point Anisininew Nation said the decision marked a significant day for First Nations in Canada.
“This decision confirms that the federal government put us in an impossible position by creating and perpetuating our infrastructure gap. Now the federal government has to help us rebuild our community. This is not just a moral obligation; it is a legal duty, and we cannot wait any longer for housing,” he said according to a release.
In a separate decision, the judge also ruled that Canada owed the plaintiff First Nations a duty to provide them with safe drinking water.
The class action was commenced by St. Theresa Point First Nation and Sandy Lake First Nation, which asserted that long-standing housing deficits on their reserves are the result of federal policies and funding practices.
They alleged inadequate housing and unsafe living conditions in the plaintiff communities stem from Canada’s control over reserve lands, funding programs and infrastructure decisions.
They are seeking $5 billion in damages for the class, and funding to support housing on reserves throughout the country.
The Federal court certified the action as a class proceeding with respect to the common issue of whether Canada owed a duty or obligation to class members to take reasonable measures to provide them with, or ensure they were provided with or refrain from impeding access to adequate housing on First Nations reserves.
The plaintiffs brought a motion for summary judgment to determine the nature and content of the duties that Canada owes class members in respect of access to adequate and safe housing on their reserves.
They argued that Canada’s exercise of power and control over First Nations’ on-reserve lives, including housing, has created conditions of profound poverty, dependence and vulnerability.
They submitted that many of the federal government’s policies and programs systematically constrain First Nations’ ability to raise capital and earn income while simultaneously restricting capital allocations.
The plaintiffs submitted that funding from the federal government may constitute all, or substantially all, of their housing funding in a given year and that Canada remained operationally involved in the design, construction and maintenance of on-reserve houses, as an extension of its control of funding.
They submitted that Canada therefore owed class members a sui generis duty to make best efforts to help class members find adequate housing on their respective reserves.
The Crown argued that the plaintiffs had not established a cognizable Aboriginal interest in access to housing, and that Canada has undertaken discretionary control of First Nations’ housing.
Canada submitted that the discretionary control necessary to give rise to a sui generis fiduciary duty requires that the Crown, pursuant to statute, agreement or unilateral undertaking, holds land or property in a trust-like way.
Justice Favel rejected the Crown’s argument, noting that Canada had taken too narrow a view of interest in the land.
The judge ruled that being provided with access to adequate housing naturally is part of the use and occupation of the collective interest in reserve land that is administratively controlled by Canada pursuant to the Indian Act.
The judge noted that expert evidence had demonstrated that Canada has historically exercised power, authority and control over all facets of First Nations’ life.
“This has created a dependency that persists to this day. Though Canada’s approach has shifted over time, it still retains control of access to adequate housing on reserve. Once again, I note Canada has not filed rebuttal evidence,” the judge wrote.
Canada submitted that a general legal control over members of the class was insufficient to ground an obligation related to housing.
Justice Favel held that these submissions “completely ignore the legacy and harmful impacts of its colonial policies” that on their face had impacted the ability of First Nations to find viable and realistic sources of alternative funding for their housing needs.
“Canada’s outdated funding and loan agreements and regionally inappropriate funding formulae govern the flow of money for housing on reserves. They have little to do with need or actual cost. There is little to no room for negotiations, with steep conditions imposed in exchange for much needed funds,” the judge wrote.
The court held that Canada owes the class members a sui generis fiduciary duty to take reasonable measures to provide class members with, or ensure they were provided with or refrain from impeding access to adequate housing on First Nations reserves.
The judge also ruled that Canada owed the class members a similar ad hoc fiduciary duty, noting that the Indian Act and the constellation of programs and policies have established that Canada has both expressly and impliedly undertaken to act in the best interests of First Nations.
The court also found that Canada owes the class members a common law duty of care to the class members and that sections 15, 7 and 2(a) and 2(c) of the Charter are engaged by the federal government’s role in administering on-reserve housing for the plaintiff communities.
“Canada can either provide Class Members with the resources they need, or it can restore them to a position where they can provide for themselves, but it cannot maintain the status quo,” the judge wrote.
Counsel for the plaintiffs, Michael Rosenberg of McCarthy Tétrault LLP, said the court had recognized the federal government’s role in creating on-reserve housing conditions that would shock most Canadians.
“This problem has been kicked down the road for decades as an infrastructure gap widened into a chasm. Time and again, Canada has denied its responsibilities. No more. It is high time to start building,” he said in a release.
Deborah Templer, Stephanie Willsey, Alana Robert and Rachel Chan of McCarthy Tétrault LLP and Kevin Hille and James Shields of Olthuis Kleer Townshend LLP also acted as class counsel.
Counsel for Canada were Bruce Hughson, Scott Farlinger, Willemien Kruger, Julian Nahachewsky and William Kuchapski of the Department of Justice Canada. They were not immediately available for comment.
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