Judge approves $90M settlement for flooded Manitoba First Nations

A judge has approved a $90 million payout to residents of four Manitoba Indigenous communities that were flooded almost seven years ago.

The settlement resolves a class-action lawsuit filed by members of the Lake St Martin, Dauphin River, Little Saskatchewan and Pinaymootang First Nations.

In the lawsuit, the four First Nations alleged their members were forced to leave their homes in 2011 when the Manitoba government diverted water from the Assiniboine River to reduce the risk of flooding in Winnipeg.

The surge in water levels resulted in considerable damage to homes, cottages and farmland, and about 4,000 people from the four First Nations were affected.

The lawsuit claimed the government was negligent in its operation of a number of water-control structures, including the Shellmouth Dam and the Portage Diversion.

The federal and Manitoba governments had agreed to pay the $90 million to as many as 7,000 potential recipients, but the offer still needed a judge's approval.

Justice James Edmond told the Court of Queen's Bench in Winnipeg on Friday afternoon that the settlement is reasonable and offers a faster resolution than proceeding to trial.

"A settlement need not be perfect," he said, adding any negotiated deal requires some form of compromise.

2nd class-action attempt 

The group originally filed a $950 million class-action lawsuit, but it was denied in 2014. This subsequent lawsuit was certified as a group action last year.

"It's not what we asked for, we asked for more than that, but one of the reasons we asked for more than that is because the government always try to chip away at it," said Clifford Anderson, 59, a member of the Pinaymootang First Nation and one of the plaintiffs representing the evacuees in the lawsuit. "But $90 million, I think is fairly significant amount."

Anderson said the deal will help to bring closure for many in the four communities.

"Some of them are going to live to see justice… some of them haven't," he said. "Just today another elder from Lake St. Martin passed away here in Winnipeg, and he's never going to see anything or enjoy the benefits of this decision." 

Others said the compensation plan's funding formula is deeply flawed.

Geraldine Beardy from Lake St. Martin said a points system — used to determine an individual's suffering and compensation — shortchanges her community, which was hardest hit.

Statistics from Indigenous and Northern Affairs Canada show that as of Dec. 12, 2017, there were still 1,953 evacuees, the majority from Lake St. Martin First Nation.

Almost seven years after the flood, most Lake St. Martin residents have been unable to return because of the extent of the damage.

Most were living in private apartments, but in cases of special needs or disabilities, some were living in hotels.

It is inappropriate. It is unjust. It is inequitable.— Geraldine Beardy

They deserve a sharply higher dollar figure than people in Pinaymootang, where many community services were uninterrupted and the evacuation was shorter, Beardy said.

"It is inappropriate. It is unjust. It is inequitable. The formula that the negotiators used was not a good formula."

Michael Peerless, lawyer for the plaintiffs, said only a small number of residents have so far opted out or objected to the settlement.

He told court that individual payments will vary depending on how people were affected, but any adult who was displaced is likely to receive between $42,000 and $67,000 as a basic amount.

Additional amounts are available for people who lost personal property, income or who faced increased health costs.

Residents were allowed to break away from the class-action lawsuit and pursue their cases individually, but some in court Friday said they were unaware of a Nov. 30 deadline to opt out until it was too late.

'No longer my safe haven'

Some people have never been able to return because their homes were destroyed or infested with rodents and mould, and their wells were contaminated.

One of the other plaintiffs, Bertha Travers, is still living in an apartment in Winnipeg.

"Since being evacuated, we have lost many family and friends. Nothing or any amount of money will ever bring back our loved ones. This settlement will mean that at least it will help us out by trying to replace some of our losses," she said.

Grieving the loss of a sister in a horrific vehicle accident at the time, Travers was one of the last ones to leave her community when the flood began.

"After being in Little Saskatchewan for another two weeks, I decided to leave my beloved home due to water continuing rise. My home was no longer my safe haven," she added.

"It was very difficult to leave and I was having flashbacks of my childhood because I am also a survivor of the residential school era, and to leave again, that really had an adverse affect on me and suffered all the horrible emotions again."

Now that the settlement is court-approved:

• All members of the four First Nations living in Manitoba in 2011 will be included. An estimated 7,600 people are eligible for a basic payment.
• Payments will go directly to individuals, not to First Nations, which are involved in their own lawsuits and negotiations.
• The bulk of the funding will go to those impacted the most — those who were relocated or remained in their homes under adverse conditions.
• The settlement includes special payments for damaged property and loss of income, to affected families with children born away from home after the evacuation, and to the estates of those who have since passed away.

Sabrina Lombardi, a partner with McKenzie Lake Lawyers in London, Ont., says individuals who were "living adversely" or evacuated for more than three years will receive more money than those whose living conditions were impacted for less. Minors will be paid less than adults.

The settlement erases all claims against the Manitoba Association of Native Firefighters (MANFF), which was responsible for taking care of evacuees before the Canadian Red Cross took over in 2014. MANFF lost its federal funding amid accusations about misspent money.

As of Dec. 29, 2017, the total cost for 2011 evacuations was approximately $174.6 million. That includes accommodation, per diems and meal allowances for those displaced since the beginning of the evacuations in 2011.

The current monthly expenditure is approximately $1.6 million for all of the First Nation residents who remain evacuated by the 2011 flood.