’60s Scoop caused ‘great harm’ judge says
Court rules Ottawa failed to protect cultural identity of indigenous children
After trying for eight years to have a class-action lawsuit brought by Ontario survivors of the ’60s Scoop thrown out, the federal government was dealt a blow Tuesday in a stinging ruling by a Toronto judge who found in the survivors’ favour. The government had a “common law duty of care” to take reasonable steps to prevent on-reserve children from losing their indigenous identity after they were removed and placed in nonindigenous care between 1965 and 1984, concluded Superior Court Justice Edward Belobaba.
“Canada breached this common law duty of care,” the judge said.
It’s believed there are at least16,000 survivors of the ’60s Scoop in Ontario, who have spoken of psychological harm as a result of the loss of their cultural identity, which has affected them throughout adulthood.
“The Sixties Scoop happened and great harm was done,” Belobaba wrote in his 20-page ruling.
“The uncontroverted evidence of the plaintiff’s experts is that the loss of their aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives. The loss of aboriginal identity resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides.”
The victory — the first for a ’60s Scoop lawsuit in Canada — after years of legal wrangling was hailed by the plaintiffs and indigenous rights groups, who acknowledged this is not the end of the case.
The next phase is to assess the damages the government owes the plain-
“I believe this is a definite encouragement that the Canadian judicial system acknowledges and states that this is truly a wrong, a legal wrong.” MARCIA BROWN MARTEL REPRESENTATIVE PLAINTIFF
tiffs, who were asking for $1.3 billion. Indigenous Affairs Minister Carolyn Bennett said the government will not appeal Belobaba’s ruling.
“I believe this is a definite encouragement that the Canadian judicial system acknowledges and states that this is truly a wrong, a legal wrong, and it isn’t just somebody saying it’s a dark part of history,” representative plaintiff Marcia Brown Martel told the Star.
Brown Martel, 53, was removed from her home at the age of 4 and placed in a series of foster homes. She recalled being told to wash off her “dirty brown colour” in at least one home. She eventually returned to Beaverhouse First Nation near Kirkland Lake around the age of18, where she is now chief.
The lawsuit revolves around what is known as the 1965 Canada-Ontario Welfare Services Agreement, when Canada agreed to pay Ontario for the per capita cost of extending some provincial welfare programs to “Indians in the Province.”
The lawsuit covers the period from December 1965, after the agreement was signed, to December 1984, when aboriginality was made an important factor in child protection and placement practices through Ontario’s Child and Family Services Act.
Belobaba found that as part of the old agreement, Canada had a duty to consult the Indian bands about ex- tending child welfare programs, but failed to do so.
“I find that no Indian bands were ever consulted before provincial child welfare services were extended to the reserves and no bands ever provided their ‘signified concurrence’ following such consultations,” Belobaba wrote.
“The evidence supporting the plaintiff on this point is, frankly, insurmountable. In any event, Canada offered no evidence to suggest otherwise.”
The Canadian government argued that even if it had consulted the bands, there is no evidence the bands would have provided meaningful advice or ideas to prevent the children from losing their indigenous identity. The judge found that had Canada consulted the bands, the government would have been provided with many suggestions on how to preserve the child’s cultural identity and ensure that they were aware of all the federal benefits to which they were entitled as they got older.
The federal government, under both the Conservatives and Liberals, tried on numerous occasions to have the lawsuit thrown out.
In December, the government argued it shouldn’t be judged for the actions of the past, but Belobaba found Canada’s submissions “missed the point.”
Despite Bennett repeating Tuesday that the government wants to bring the parties to the table, the plaintiffs’ lead lawyer, Jeffery Wilson, said that is not the message the government had been communicating in court. He said his clients have wanted to sit down since the lawsuit began in 2009.
He described Canada’s conduct in court over the last eight years as “soldiers without a conscience, taking orders without a conscience.”