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Sixties Scoop lawyers furious as government seeks to delay decision

Marcia Brown Martel (left) is seen outside court in Toronto on Thursday, Dec. 1, 2016. Brown Martel is representative plaintiff in the 60s Scoop class action that alleges the federal government failed to protect the cultural identities of aboriginal children placed in non-aboriginal homes in Ontario between December 1965 and December 1984.

Colin Perkel/The Canadian Press

Lawyers for indigenous people who were removed as children from their homes on reserves to be placed with non-aboriginal families are furious after the federal government asked a judge to consider delaying his imminent verdict in the now eight-year-old case.

The Justice Department wrote this week to Justice Edward Belobaba of the Ontario Superior Court to ask for a meeting between all of the legal parties to discuss the timing of the judgment that he planned to deliver on Feb. 15. The request came a few days after Carolyn Bennett, the Minister of Indigenous and Northern Affairs, offered to negotiate a settlement in the case, known as the Sixties Scoop, which she said was a "dark and painful" chapter in Canada's history.

In his letter to Justice Belobaba, Barney Brucker, a Justice Department lawyer, said, "We would like to address the timing of the release of your decision on the summary judgment motion, given the Minister of Indigenous and Northern Affairs Canada's stated intent to launch negotiations towards an agreement in principle to all Sixties Scoop litigation and the potential benefits to the negotiations that an abeyance of your decision might have."

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Separate Sixties Scoop cases have been started in a number of provinces, but the Ontario case, which was certified as a class action and that began court hearings last August, is the furthest along.

The lawyers in the Ontario case are arguing that their indigenous clients were deprived of their cultural identity when they were removed from their homes and their First Nations communities. They say they have told Mr. Brucker that they are categorically opposed to a delay of Justice Belobaba's decision.

Morris Cooper, one of the lawyers for the Ontario plaintiffs, wrote to Justice Belobaba urging him to reject Mr. Brucker's request.

"Respectfully, this unprecedented, unilateral request by the defendant that you consider delaying the forthcoming release of your reasons for decision brings to mind the only reply that would have been uttered by my late father in similar circumstances, namely, the singular Yiddish word 'chutzpah,'" wrote Mr. Cooper. "No translation does it justice, but it can fairly be said to mean 'shameless audacity, impudence, gall, or effrontery.'…"

There is no reason that the negotiation process should be affected by a judgment from the court, wrote Mr. Cooper, and "the class members and victims of the Sixties Scoop deserve a decision."

Justice Belobaba also seemed less than enthusiastic about the government's proposal. "As you know, the plaintiff is not going to consent to any delay, as is their right – my present intention is to release the decision on WED FEB 15," the judge wrote Wednesday in response to Mr. Brucker's request for a meeting to discuss a delay. He suggested that Mr. Brucker scrap the idea of a meeting and instead "quickly" file his proposal in writing.

"I have never heard of a defendant succeeding on a motion to delay the release of a decision," Justice Belobaba wrote, "but I am keeping an open mind and will review your motion in writing with care."

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The $1.3-billion Ontario case was launched in 2009 on behalf of Marcia Brown Martel, now the Chief of the Beaverhouse First Nation, who was taken from her community north of North Bay in 1967 when she was four years old and, after years in foster care, was adopted by a white family.

Her lawyers estimate there are about 16,000 other indigenous people in the province who were removed from their homes in similar fashion, under a federal-provincial agreement, between 1965 and 1984.

The court battle has cost taxpayers more than $2-million to date. The government has tried to have it thrown out eight times and adjourned 16 times. More than 20,000 pages of documentary evidence has been submitted by the government to support its case over the past 18 months.

Dr. Bennett was asked by New Democratic MP Romeo Saganash on Wednesday to explain how she can justify telling the Sixties Scoop plaintiffs that the decision in their case should be delayed. The minister responded by saying that the government "believes that dialogue, rather than litigation, is the preferred route for resolving these issues and to right these horrible wrongs."

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