The Indigenous Bar Association wishes to recognize the recent Ontario Superior Court decision, Brown v Canada (Attorney General) 2017 ONSC 251 concerning certain victims of the “60’s Scoop”. The decision marks a turning point in Canadian jurisprudence and a step forward for reconciliation, particularly for those Indigenous people whose forced removal from their childhood homes resulted in the loss of their Indigenous identity.
On February 14, 2017, Justice Belobaba considered whether Canada could be held liable in law for the class members’ loss of Aboriginal identity after they were placed in non-Aboriginal foster care and adoptive homes. The Ontario Superior Court held that when Canada entered into the 1965 child welfare Agreement, it had a common law duty of care to take reasonable steps to prevent on-reserve children in Ontario, who had been placed in the care of non-Aboriginal foster or adoptive parents, from losing their Aboriginal identity. This common law duty was supplemented by a “political trust of the highest obligation” that Canada assumed in respect of the welfare of Indigenous Canadians. The Court held that Canada had breached its common law duty of care owed to certain 60s Scoop Survivors, a term used to describe a group comprised of approximately 16,000 Aboriginal children who were forcibly removed from their homes between December 1, 1965 and December 31, 1984 in Ontario.
Importantly, the Superior Court recognized that Indigenous children who were apprehended and removed from their families by provincial child welfare authorities lost their Aboriginal language, culture, and identity and that this loss was quantifiable. Indigenous bands were not consulted about the 1965 Agreement prior to its enactment and the lack of consultation amounted to a breach by Canada of its duty of care. Without proper consultation, information about the children’s heritage and access to federal benefits was virtually unavailable for foster and adoptive parents. This contributed significantly to the children’s loss of language, culture and identity. The IBA supports the findings by Justice Belobaba that the removal of Aboriginal children resulted in a loss of identity and had devastating impacts on these children and their communities.
We recognize that this decision is part of a lengthy 8-year litigation process which is still ongoing, as the costs and damages assessment stage is still pending. Nevertheless, this represents a significant victory for the 60s Survivors.
All my relations,
Indigenous Bar Association in Canada