APTN National News
An Ontario judge has ruled that Canada is liable for breaching a fiduciary duty to care for Indigenous children swept up in the 60s Scoop and owes them for failing to do so.
The ruling was handed down Tuesday morning by Justice Edward Belobaba in Toronto.
“When Canada entered into the 1965 Agreement and over the years of the class period, Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity. Canada breached this common law duty of care,” said Belobaba in his ruling.
The judge also stated that the class action suit involving thousands of First Nations children can move forward to the damages assessment stage.
“The plaintiff is entitled to the costs of this summary judgement motion,” Belobaba said. “These costs are likely to be substantial. If the parties cannot agree on the costs I would be pleased to receive brief written submissions from the plaintiff within 14 days and from the defendant within 14 days thereafter.”
The plaintiffs are asking for $1.3 billion in damages.
The Ontario action was filed in 2009 alleges about 16,000 at-risk indigenous children in Ontario suffered a devastating loss of identity when they were placed in non-aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement – an agreement Justice Belobaba said the government breached.
The plaintiffs maintain the government violated the agreement by failing to consult with the various Indian bands about the child-welfare program – an assertion Belobaba accepted.
The government does admit the children may have suffered harm but insists it is not liable because it had no “duty of care” toward them, and that it was acting with good intentions within the prevailing norms of the day.
In an abrupt move, Canada tried to get the judge to drop the case after it decided to try and negotiate with survivors rather than wait for a ruling. That was not successful.
Wilmer Nadjiwon, 95, who was chief of Chippewas Nawash Nation for 14 years starting in 1964, had planned to testify.
“What we would have done is tell the federal minister of Indian affairs that this is not the way to respect our people, not the way to preserve our identity and honour our special relationship with the Crown,” Nadjiwon said in an affidavit.
“And if our children are forced to leave, we need to know they will return to the reserve because they have family here who love them … that they have a special place in our community … but we did not have the opportunity to say these things.”
Similar claims have been filed on behalf of Indigenous children in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec and Nova Scotia, but none have been certified.
In Ontario, Belobaba is directing counsel on both sides to schedule a case conference to discuss next steps.