May 26, 2019

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Federal judge rejects flooded First Nation's calls for more home construction

OTTAWA — A federal judge has rejected calls by a First Nation evacuated during the 2011 Interlake flood diversion to have Ottawa provide double the number of houses that were washed away.

In a ruling obtained by the Free Press, a federal judge said First Nations can expect Ottawa only to restore a reserve’s housing supply to make it comparable to the time of a natural disaster, instead of rectifying long-standing issues such as overcrowding.

“I am not suggesting that an inadequate situation should be used as a yardstick,” ruled Justice Sébastien Grammond on May 9.

“However, where budgetary resources are limited, it is not unreasonable to allocate them where the needs are most important first.”

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OTTAWA — A federal judge has rejected calls by a First Nation evacuated during the 2011 Interlake flood diversion to have Ottawa provide double the number of houses that were washed away.

In a ruling obtained by the Free Press, a federal judge said First Nations can expect Ottawa only to restore a reserve’s housing supply to make it comparable to the time of a natural disaster, instead of rectifying long-standing issues such as overcrowding.

"I am not suggesting that an inadequate situation should be used as a yardstick," ruled Justice Sébastien Grammond on May 9.

"However, where budgetary resources are limited, it is not unreasonable to allocate them where the needs are most important first."

The case is part of a series of litigation borne out of the 2011 flood, in which the Assiniboine River put Winnipeg at risk of a major deluge. Officials diverted the river toward the Interlake, so the flood would affect fewer people.

That meant evacuating 3,000 residents from 18 reserves, with a pledge to replace damaged homes and schools.

Some 234 evacuees from Dauphin River First Nation had been mostly living around Winnipeg and receiving federal housing stipends until late September 2018, when Ottawa deemed enough housing to be available on the reserve.

At the time of the flooding, the reserve counted 53 houses, an occupancy rate of about 3.8 people per home. The reserve now counts 70 homes, with an occupancy rate of 3.3 band members per home — or 2.2, when counting only those who have actually moved back.

A new home at Dauphin River First Nation. The band argues it is entitled to 45 more homes, largely due to family changes over the seven years of living in exile. (Wayne Glowacki / Winnipeg Free Press files)

A new home at Dauphin River First Nation. The band argues it is entitled to 45 more homes, largely due to family changes over the seven years of living in exile. (Wayne Glowacki / Winnipeg Free Press files)

The band argues it’s entitled to 45 more homes, largely due to family changes over the seven years of living in exile. That includes teenagers maturing into adults and starting their own families and divorced spouses wanting to live separately.

Ottawa feared 'false evacuees'

Click to Expand

OTTAWA— The federal government and officials from Dauphin River First Nation both noted issues with the list of evacuees in the 2011 flood.

The band noted some households are clearly missing relatives’ names, while Ottawa found six pairs of people who seemed to be living together in 2011 now marked as 12 single heads of households.

Emails disclosed in court show federal bureaucrats at Indigenous Services Canada feared “the potential of a large number of false evacuees” on the list, as well as people who no longer wish to return to the reserve.

— Dylan Robertson

Indigenous Services Canada pegged the cost of 45 more homes at around $11 million.

The First Nation argued that Ottawa acted unfairly in ending its housing stipends in late September, rejecting the community's argument that everyone deserved a house on the reserve before losing the federal stipend, which ranged from $800 to $3,000 per month, based on family size and location, and was administered by the Canadian Red Cross.

In affidavits, some band members said they were "couch surfing" with friends or family, and wouldn’t be able to afford housing once their stipend dried up.

Ottawa said it provided housing based on the reserve's occupancy rate. Grammond ruled "it was reasonable to rely on" such a metric, given that there were no legislated guidelines for making such a calculation.

The band also argued Ottawa never made it clear whether members could appeal the end of their stipend, though the judge noted none tried to do so.

"There was certainly room for improvement in this process," Grammond conceded.

The band’s lawyer, Harley Schachter, said he had no comment Tuesday.

"We’re just reviewing the decision to determine our next steps," he said, which could include asking the Federal Court of Appeal to review the decision.

The breach in the dike at the Hoop and Holler bend is seen along the Assiniboine River outside of Portage La Prairie in May 2011. Officials diverted the river toward the Interlake so the flood would affect fewer people. (Jonathan Hayward / The Canadian Press files)

The breach in the dike at the Hoop and Holler bend is seen along the Assiniboine River outside of Portage La Prairie in May 2011. Officials diverted the river toward the Interlake so the flood would affect fewer people. (Jonathan Hayward / The Canadian Press files)

Ottawa tried to get the entire case quashed, arguing housing benefits were not subject to judicial review; the court noted that almost everything the federal government does can be appealed in court.

The reserve is still in a separate, ongoing spat against both Ottawa and the province over whether band members received adequate compensation for having their community flooded.

Dauphin River First Nation sits at the mouth of that body of water as it flows into Lake Winnipeg, making it one of the hardest-hit communities in the 2011 flood. It is located roughly 240 kilometres north of Winnipeg.

dylan.robertson@freepress.mb.ca

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