Ontario Superior Court judge rules in favour of plaintiffs in Sixties Scoop case

Sixties Scoop march at Allen Gardens in Toronto

MANITOULIN—An Ontario Superior Court Judge has ruled in favour of the plaintiffs in the Ontario Sixties Scoop case, citing that Canada failed to take the steps it should have to prevent thousands of on-reserve children who had been placed with non-Native families from losing their indigenous heritage.

“What has been missing in this whole process has been talking to the people who initiated the litigation and getting their side of the story,” stated Patrick Madahbee, grand council chief of the Union of Ontario Indians to the court ruling Tuesday on the side of Sixties Scoop survivors. “That’s been the problem with this case, and the government has been wanting to use tactics such as 11th hour attempts to negotiate an agreement to minimize this. But the question has remained if the court process would give weight to the aggrieved parties case.”

“This has all been part of the government tactics,” said Chief Madahbee. “Now the judge has done the right thing by ruling the way he has. Ontario Superior Court Justice Edward Belobaba sided with the plaintiffs. With this ruling it paves the way for an assessment of damages the government will now have to pay.

Justice Belobaba found Canada had breached its “duty of care” to the children. The lawsuit was launched eight years ago by plaintiffs who sought $1.3 billion on behalf of about 16,000 indigenous children in Ontario who claimed they were harmed by being placed in non-aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement. The judge agreed with the plaintiffs that the federal government breached part of the agreement that required consultation with Indian bands about the child welfare program.

Justice Belobaba wrote on the government’s stance that consultation with the bands wouldn’t have made any difference to the children, “this is an odd and frankly, insulting submission. Canada appears to be saying that even if the extension of child welfare services to their reserves had been fully explained to the Indian bands, and if each band had been genuinely consulted about their concerns in this regard, that no meaningful advice or ideas would have been forthcoming.”

The Justice said that Canada’s submission misses the point, noting that the issue is not what was known in the 1960s about the harm of trans-racial adoption or the risk of abuse in the foster home. He said there is no doubt that what was well known even them was the importance to First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of the extended family.

Marcia Brown Martel, a member of the Temagami First Nation, was the lead plaintiff in the case, along with Robert Commanda. She said in a statement after the court ruling, “I feel like a great weight has been lifted from my heart. Our voices were finally heard and listened to. Our pain was acknowledged.”

As reported last week, the government had  attempted to stop the court from ruling on the case. Indigenous Affairs Minister Carolyn Bennett had indicated the government wanted to negotiate a national settlement.

“Far too often we see government trying to stop the courts, and shortcut the processes in place,” said Grand Council Chief Madahbee. “The judge in this case is saying that this case needed to be allowed to proceed to litigation. They admit the claim is valid and it gives the plaintiffs even more strength to go ahead with the case, instead of the federal government

controlling negotiations.”

For Grand Council Chief Madahbee the whole issue is one he has personal knowledge of. He was one of 10 children in his family and he said when the Sixties Scoop was instituted some of his siblings were sent to foster homes, all over. “For 30 years I did not see some of my siblings,” he told the Recorder. “Some of my siblings had good experiences in these homes, and others had horrendous experiences. When I first saw some of my siblings after 30 years, I would notice they had scars on their head and other parts of their body.”

Ontario Regional Chief Isadore Day says the landmark decision by the Ontario courts in favour of the Sixties Scoop claim is not only recognition of what the survivors suffered but a judgment that Canada failed in its duty to protect the cultural identity of Indigenous children.

“I want to lift up Chief Marcia Brown, the representative plaintiff in the lawsuit who led this charge with passion and determination on behalf of the thousands of survivors across the country. This dark and painful chapter in Canadian history needs to be resolved in order to advance healing and reconciliation,” said Ontario Regional Chief Day. “This decision will now set a precedent for others across the country seeking solace and justice. We know that much more healing needs to take place not only for the survivors, but for their children and grandchildren.”

“If this government is truly committed to reconciling its horrible historic treatment of Indigenous peoples, then the upcoming federal budget must contain sufficient funding and resources to address a multitude of urgent needs. We need to address the ongoing suicide crisis with mental wellness programming,” said Ontario Regional Chief Day. “We need to break the cycle of poverty and despair with the necessary infrastructure for good homes and clean water. First Nation lives are not lines in a budget or dollar amounts in a lawsuit. All we need are the necessary resources to create happy and healthy communities in order to finally secure our rightful place in Canada.”

Minister Carolyn Bennett indicated Tuesday the government will not be appealing the court ruling.