Ontario judge sides with Sixties Scoop survivors
Posted by Zig Zag
by Tu Thanh Ha, The Globe and Mail, Feb 14, 2017
After a legal battle that lasted nearly a decade, a judge has ruled that the federal government 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.
“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 a decision released Tuesday.
Damages still have to be decided at a later stage but there had been estimates they could total $1.3-billion – $85,000 for each of the expected 16,000 class members.
It was not immediately clear if the ruling would have an impact on similar litigations in other provinces.
The issue in the case hinged on the Canada-Ontario Welfare Services Agreement of Dec. 1, 1965.
The judge concluded that the Crown’s obligation to the plaintiffs was that it had a common-law duty of care, not a fiduciary responsibility as it applies to aboriginal people: Canada had made a deal in 1965 and breached its obligation to consult with the third-party native bands.
Under the 1965 deal, Ottawa allowed Ontario 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. “The evidence supporting the plaintiff on this point is, frankly, insurmountable,” Justice Belobaba wrote.
Tuesday’s decision is a milestone for the Ojibwa woman who was the representative plaintiff in the class action.
A member of the Temagami First Nation from the Beaverhouse Community, Marcia Brown Martel was taken from her home north of North Bay in 1967 when she was four years old.
She spent years in foster care, losing contact with her birth family, losing her first language and her cultural identity. She was adopted by a non-indigenous family and given a new name.
After she turned 17, she was sent to North Bay and struggled to reconnect with her roots. She discovered that the government had declared her original identity, Sally Susan Mathias, dead.
Now the chief of the Beaverhouse First Nation, Ms. Brown Martel sued Ottawa in February, 2009.
“After so many years, I feel like a great weight has been lifted from my heart. Our voices were finally heard and listened to. Our pain was acknowledged,” Ms. Brown Martel said in a statement Tuesday.
“I hope no one sees this as a loss for our government. It is a gain for all of us – a step forward and a step closer to reconciliation.”
The former Conservative government in Ottawa had tried to overturn the certification of the class-action suit. The Liberal government then asked for delays, mentioning possible settlements of the lawsuits.
Federal lawyers have argued that there is no evidence that native bands could have offered better ideas, had they been consulted, a position that the judge said he found “odd and, frankly, insulting.”
Justice Belobaba said there were numerous documents showing 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.”