09/21/2011 01:52 EDT | Updated 11/21/2011 05:12 EST

First Nations suing Ottawa, Manitoba and Manitoba Hydro over spring flooding

WINNIPEG - Two Manitoba First Nations are suing the federal government, the province and its Crown utility over "unusually massive" flooding which they say has robbed them of their way of life, their livelihood and their homes.

The Peguis and the Ebb and Flow First Nations filed lawsuits in Winnipeg court last week. The two allege that flood water was intentionally diverted into Lake Manitoba last spring, which pushed lake levels up and unnecessarily flooded their reserves and traditional land.

In a statement of claim, which contains allegations not proven in court, the First Nations say their lands are no longer suitable for agriculture and "are largely unfit" for residents living there.

They also claim that an island which is a traditional ceremonial and burial site is entirely under water.

"These First Nations ... are sick and tired of the government of Manitoba and Manitoba Hydro ... flooding hundreds of thousands of acres of land without any concern whatsoever to the needs and interests of Manitoba First Nations," said Jeffrey Rath, a lawyer from Alberta who is representing the First Nations.

"A conscious decision was made this spring to keep Portage la Prairie dry and put Ebb and Flow under water."

Flooding was particularly bad in Manitoba this year. The province struggled well into the summer to contain the swollen Assiniboine River and operated the Portage Diversion over its design capacity. The channel funnels water from the river into Lake Manitoba and lakeside residents say that pushed levels up.

Cottagers, farmers and members of several First Nations were forced from their homes in April. Many from reserves haven't been able to return. Cottagers and farmers can apply for provincial compensation, but First Nations fall under federal responsibility so they don't qualify, Rath said.

"There is this jurisdictional game going on."

Provincial flood forecasters argue this year's event was one of the worst on record and they did nothing to artificially raise water levels. But the lawsuit alleges the flooding of First Nations land is a long-standing practice.

The Peguis reserve has flooded virtually every year for the last 30 years, Rath said. The lawsuit argues water levels are kept at unnatural levels and aboriginal lands are flooded partly because Lake Winnipeg is being used by Manitoba Hydro as a "reservoir."

Rath said years of flooding have destroyed the reserve's entire agricultural economy, not to mention many of its homes and infrastructure.

"There wouldn't be mould in those houses if all of the foundations weren't saturated by a water table that's been brought up past any safe level," Rath said. "These communities have just been devastated."

The statements of claim says flooding reserve lands has damaged agriculture, the commercial fishery, sacred sites and burial grounds, and has destroyed plants used for medicinal and spiritual purposes.

It also argues fresh water that would normally flow into Lake Winnipeg was forced into Lake Manitoba. This "dramatically increased levels of sediments, nitrogen and phosphorus" which hurt the lake and First Nation communities who depend on it.

Both First Nations are seeking unspecified damages for their losses, punitive damages and a percentage of Manitoba Hydro's profits. They are also seeking an immediate injunction preventing the use of dams and other water control structures that affect the natural water level.

"It's a very serious claim and a very legitimate claim under the circumstances," Rath said.

Manitoba Hydro spokesman Glenn Schneider said lawyers at the utility are studying the lawsuit and will be filing a statement of defence. The company is a "bit puzzled" at being named in the Ebb and Flow lawsuit because the reserve is nowhere near any Manitoba Hydro facilities, he added.

"We have ... no dams, no generating stations, no impact on the water levels on Lake Manitoba."

Neither chief could be reached for comment. The federal government and the province didn't respond to a request for reaction.

No statement of defence has been filed.