The federal government has begun settlement negotiations in what is known as the Sixties Scoop as class-action lawyers across Canada jockey to represent First Nations people who were removed from their homes when they were children and adopted into non-Indigenous families.
The Indigenous Affairs department has opted not to appeal a court decision last month in which a judge found the government failed to protect the cultural identity of thousands of Indigenous children in Ontario. The lawyers in that class-action case – initiated by Marcia Brown Martel, who is the chief of the Beaverhouse First Nation – are pressing ahead to obtain court-ordered compensation.
The government, meanwhile, met with lawyers and other stakeholders in late February to start negotiations in 18 Sixties Scoop cases, including the Brown Martel class action, in what it says will be "an expedited process for a national resolution" to what could be a potentially costly chapter in Canadian history.
The Brown Martel case was limited to children who were taken from their homes on an Ontario First Nation between 1965 and 1984. Ms. Brown Martel's lawyers say they have evidence that the suit, which is the only Sixties Scoop one in Canada so far to be certified as a class action, covers 16,000 survivors.
But, in an open letter published this month on the website for that case, Ms. Brown Martel urges all people in Ontario who "experienced the harm" of the Sixties Scoop to contact her lawyers "whether you were or were not living on the reserve when you were removed before 1965, or that you are not a status 'Indian.'"
The case before the courts is limited to a specific class of plaintiffs, explained her lawyer, Jeffery Wilson. But "if Canada wants to sit down and talk, then Marcia is saying 'not to worry, I am going to make sure that all First Nations children who suffered the experience of the Sixties Scoop are covered.' "
Merchant Law Group, in the meantime, has filed a separate case in Ontario against both the federal and provincial governments on behalf of what is says is "the large majority of children" who were part of the Sixties Scoop but not covered by the Brown Martel action.
Merchant has also filed cases on behalf of Sixties Scoop victims in Quebec, Nova Scotia and the three northern territories, as well as Alberta, Saskatchewan and Manitoba where it is competing with similar claims launched by Toronto firm Koskie Minsky.
Koskie Minsky was awarded the right to represent Manitoba victims but that ruling has been appealed by Merchant. It also, earlier this month, launched a case on behalf of all Sixties Scoop victims across Canada except for those in Ontario.
And Klein Lawyers in Vancouver, which is representing people who were removed from homes in British Columbia, has 900 clients.
The cases have similarities but each makes different arguments. Now it is up to the federal government to find a way to settle with all of them, even as the Brown Martel case proceeds through the courts.
"Negotiation, rather than litigation, is the government's preferred route to settle differences, and right historical wrongs," an Indigenous Affairs spokeswoman said in an e-mail on Monday.
Mr. Wilson said he too would prefer to settle through negotiation. But "we're proceeding with the damages claim," he said, "because there is no indication from the federal Minister [of Indigenous Affairs] of any reasonable way to resolve the matter other than to invite lawyers and invite different stakeholders in the form of lawyers to sit at the table on monthly meetings. That's the extent of what is taking place."
Kirk Baert, the head of the class-action group at Koskie Minsky, is equally disparaging of the federal government's negotiating efforts to date. "They have done almost nothing to move the matter forward on that front since Dec. 1," Mr. Baert said in an e-mail. "They appear to have no plan, no agenda, no timetable and no real ideas."
David Klein of Klein Lawyers feels differently. There are many reasons for the Sixties Scoop plaintiffs to prefer a negotiated settlement to a trial judgment, he said. Judges can order cash awards while negotiated settlements can establish programs or initiatives that are geared toward reconciliation and restoration, he said, and litigation can take years but a negotiated settlement could be reached quickly.
"Negotiation is doable if everyone works hard at it," Mr. Klein said. And "my impression is the government is motivated in these very early stages."