Marcia Brown Martel remembers the day when she was four years old and provincial child-welfare officials took her away from her Ojibwa community near North Bay in 1967.
“I was this big,” she said, raising her hand to waist level.
Raised in foster care then adopted by a non-native family, all she recalled of her ancestry was her original name, Sally Susan Mathias, and the name of the Beaverhouse First Nation of Kirkland Lake.
Years later, back in North Bay and searching for her roots, she launched a class-action suit against the federal government.
After a legal battle that lasted nearly a decade, a judge has sided with Ms. Brown Martel, ruling on Tuesday that Ottawa is liable to thousands of Ontario natives who were removed from their communities and adopted into non-indigenous families, in what became known as the Sixties Scoop.
Carolyn Bennett, the federal Minister of Indigenous and Northern Affairs, said she had “absolutely” no intention of appealing the Ontario ruling. A government official later pointed out that some technical issues may need to be clarified by a court. That does not alter the government’s desire to reach a negotiated settlement across Canada, he said.
“Great harm was done. … The ‘scooped’ children lost contact with their families. They lost their aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished ‘with scarcely a trace,’” Superior Court Justice Edward Belobaba said in his decision.
Under a 1965 deal with Ontario, Ottawa allowed the province to extend the delivery of its child welfare to Indians with reserve status. The agreement explicitly said bands had to be consulted before Ontario welfare services were applied to them.
In fact, that wasn’t the case and Canada failed in its duty of care, the judge concluded. “The evidence supporting the plaintiff on this point is, frankly, insurmountable,” Justice Belobaba wrote.
Now the chief of the Beaverhouse First Nation, Ms. Brown Martel’s voice broke as she met reporters at a Toronto news conference launched with chants and drumming. “What a day this is … when one hears the truth after that much time,” she said.
Damages have yet to be awarded in the case. The claimants are asking for $1.3-billion – $85,000 for each of the expected 16,000 class members, who were placed with non-native families between 1965 and 1984.
The Ontario ruling could have some impact on similar cases across the country, although it took a distinct line of argument because it hinged specifically on the 1965 agreement between Canada and Ontario, the plaintiff’s lead lawyer, Jeffery Wilson, told reporters.
“There will obviously be an overflow or ripple effect,” he said.
Dr. Bennett said her government is intent on reaching negotiated settlements in all cases brought against Ottawa by indigenous claimants who were harmed as children.
Some estimates suggest that as many as 200,000 indigenous children were removed from their homes across Canada as part of the Sixties Scoop. So the costs of a settlement to all of those harmed could be enormous.
But Dr. Bennett said that, for many victims, the resolution will be about more than money.
“Money is important,” she said, “but getting their language and culture back, making sure their children will be able to speak their language and be immersed in their culture, that is hugely important and that is why there are so many things that we as a government want to do.”
In the days before Justice Belobaba handed down his decision, government lawyers asked for a meeting among the parties to determine whether the ruling could be stalled while a settlement was being negotiated. The lawyers on the Ontario case were furious at the legal manoeuvre and lashed back with a letter to Justice Belobaba urging him to refuse the request. That prompted the Justice Department lawyers to back away from their proposal for an abeyance. But Dr. Bennett said she believes their intentions were “misunderstood.”
Separate Sixties Scoop cases have been launched in a number of provinces and, in some cases, law firms have initiated competing class-action claims in the same jurisdiction. Some of the cases outside Ontario are based on the same argument that the Sixties Scoop victims who were taken from their homes on reserves were deprived of their aboriginal identity.
Others initiated by the Merchant Law Group go further to claim physical and sexual abuse, to include all indigenous children who were removed from their homes to be adopted by white families – not just those who were taken from reserves – and to add the provinces as defendants along with the federal government.
Lawyers from four firms, including the Merchant group, met with government officials in late December to begin the negotiating process.
Scott Robinson of the Koskie Minsky law firm, which has initiated cases in Manitoba, Saskatchewan and Alberta, said the Belobaba decision was “powerful” in that the judge made point-blank statements that the Sixties Scoop occurred and harm was done.
All of the cases across Canada are similar, Mr. Robinson said, but each province had different agreements with the federal government, making a national class-action suit on this issue impossible. David Klein, who is representing clients in British Columbia, said the ruling will be helpful because the judge found that Ottawa owed a duty of care to indigenous children.
And “regardless of the ruling, Canada has expressed a strong interest in resolving this litigation,” Mr. Klein said. “My impression is that the government is sincere in its desire to develop a restorative solution for the Sixties Scoop tragedy.”
Despite the talks about settlements, the Ontario suit dragged through the courts because federal lawyers tried eight times under two different governments to have the case thrown out, Mr. Wilson noted.
Federal lawyers also argued that there is no evidence that native bands could have helped explain their cultures to adoptive families if they had been consulted, a position that the judge said he found “odd and, frankly, insulting.”
Justice Belobaba said numerous documents showed that First Nations representatives had offered to help the removed children understand their rights and reconnect with their roots.
Already in the 1960s, the judge wrote, the importance of preserving native cultures and traditions was well-understood.
The decision also criticized the federal government’s failure to inform the apprehended aboriginal children and their adoptive families about their aboriginal identity or their various federal entitlements.
Experts’ evidence in the case outlined how the abrupt removal of the children “resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides.”
Justice Belobaba noted that the expression “Sixties Scoop” was coined after an author heard that child-welfare officials “would literally scoop children from reserves on the slightest pretext.”Report Typo/Error
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