Two Federal Court decisions delivered in December were a watershed moment.
The rulings arose from two class actions, one led by St. Theresa Point First Nation in Manitoba and Sandy Lake First Nation in Ontario, and a companion case led by Shamattawa First Nation in Manitoba. In the decisions, Justice Paul Favel affirmed that Canada has a legal duty grounded in fiduciary obligations, common‑law duty of care and Charter rights to provide adequate housing and safe drinking water on reserves.
But the public will struggle to understand these rulings without context. This is not simply a funding issue. It is the product of a system that legally obstructed First Nations from housing themselves. The court recognized housing as an enforceable obligation, not a program subject to political whims.
This matters because housing on many reserves has been allowed to deteriorate for decades, with overcrowding, mould, fire risk and structural failure pushing families into life‑threatening conditions. Chronic underfunding, blatant racist policies and a lack of support for First Nations-led priorities have led to a significant shortfall in housing for First Nations across Canada.
Systemic decisions that ignored cultural and environmental realities, and imposed government housing on a select racial group created a system that could never work. In its decisions, the court summarized evidence of homes condemned yet still occupied, and tragedies, including fatal winter exposure in St. Theresa Point and a deadly house fire in Sandy Lake.
These decisions move us from the politics of “promises made, promises delayed” into the realm of law.
The next step is not just to ask whether Canada breached its duty, but to confront the deeper truth: First Nations were ghettoized in a separate housing system unlike anything other Canadians have experienced.
The solution to the problem must be First Nations-led, designed to dismantle failed systems and replaced with one that ensures that housing is community controlled, culturally appropriate and resilient.
What the rulings says, and don’t say
The first ruling, arising from the case brought by St. Theresa Point and Sandy Lake, affirmed that safe housing is not discretionary and that Canada has an obligation to provide safe, decent homes on reserves. Failure to do so is a breach of a unique trust, fiduciary duties and an obligation to provide basic care.
But the ruling does not address the underlying issue: government housing for First Nations does not work and never could. The real obstacle has been the legal barriers to First Nations housing themselves. When those barriers are removed, First Nations can and do house themselves.
Housing isn’t a standalone issue. Overcrowding and poor housing conditions are integral to health and well-being, fuelling communicable-disease transmission, respiratory illness from mould, injuries and mental health stress. Unsafe and inadequate housing undermines education, employment and community safety. Families living in unsafe structures are more likely to face fire risks, displacement during extreme cold and long‑term trauma.
The auditor general has repeatedly found that Ottawa’s overly paternalistic approach has failed to deliver access to safe infrastructure for First Nations, leaving dozens of communities under long‑term water advisories and deteriorating infrastructure.
Water and housing are inseparable. Homes cannot safely be occupied without reliable potable water and wastewater services. The Shamattawa ruling explicitly rejected the notion that safe water is discretionary, recognizing it as a fundamental obligation tied to reserve creation and Crown control.
Before these rulings, First Nations leaders and researchers raised their grievances about the failed system and documented chronic underfunding and gaps that spanned generations, including housing shortages that numbered in the hundreds in single communities. The Assembly of First Nations called the rulings “defining,” a clear statement that the federal government created these problems and must resolve them, and a call to close the infrastructure gap through generational investment.
àBut investment alone won’t be enough. Solutions must be First Nations-led, grounded in self-determination and designed to dismantle the failed system – not perpetuate it. That investment must be coupled with governance reforms to ensure housing is community controlled, culturally appropriate and resilient.
So, what now?
Canada needs to treat these rulings as an opportunity to finally co‑develop a framework with First Nations and national Indigenous organizations, rather than continue to take a defensive stance. Solutions must include systems for First Nations to finance and house themselves – and not just put more government money into a broken model. Canada needs to fund the shortfall: housing fails when operations, maintenance and repairs are underfunded. Watchdogs and civil society have highlighted persistent operations and maintenance deficits in water and housing systems. Funding models need to guarantee full lifecycle costing, and these must accommodate northern logistics, climate exposure and local labour markets.
Decades of one‑off projects and external contracting have not built local capacity. The rulings reinforce that obligations exist. But the fix isn’t about government – it’s about First Nations control of housing. The solutions must prioritize First Nations leadership, local trades training and Indigenous design standards that address overcrowding, multigenerational living, indoor air quality and energy performance.
Shared rule can secure better infrastructure in Indigenous communities
Drawing on First Nations’ proud history of sustainable housing
We need solutions now. We have to target overcrowding with immediate builds and address chronic health issues with rapid repairs while also planning long‑term community growth. Some communities are short hundreds of units. Bridging solutions, like modular builds, rapid repairs and mould remediation, must be funded and deployed quickly, while long-term plans need to expand serviced land, roads and utilities to sustain population growth.
There also needs to be compensation for the damage poor housing has caused over the past century. It’s not enough to set up a new system; we must address the social destruction caused by the existing housing system. The price of inaction has been catastrophic: lives lost, health harms and impacts to economic participation.
The moment – and the responsibility
Courts have already recognized that Canada’s control over on-reserve infrastructure created dependency and that this responsibility does not vanish as circumstances change but, rather, the content of fiduciary duties shifts with modern standards. The rulings focus on federal duties on reserves, but we also require better harmonization with provincial codes and utilities. The excuse of jurisdictional complexity can’t be a shield against constitutional obligations.
First Nations leaders have been clear: the infrastructure crisis is not of their making; it is the result of chronic underfunding and systemic neglect. The courts have now agreed that obligations exist on the part of Canada. The moral case was already overwhelming. The legal case is now established. The only question is whether governments will meet their duties with the urgency they require, stop pouring money into a failed system and enable First Nations self-determination.
We all can learn from the past. The solution is simple: fulfil legal duties and treaty promises through First Nations-led solutions, co-create structural remedies, legislate rights with resourced standards and fund the full cost of safe homes and water – for good.
