Canada says it isn't liable for removing Indigenous children from homes in the Sixties Scoop

Sitting in the second row of a Toronto courthouse, Marcia Brown Martel listened with disappointment as the government of Canada sought to absolve itself of responsibility for the suffering of Indigenous children during a period known as the Sixties Scoop.

Brown Martel was one of those children. Now she’s the lead plaintiff in a $1.3 billion class action that accuses Canada of failing to protect the cultural identity of some 16,000 children in Ontario who were taken from reserves by government workers and placed in white homes across Canada, the U.S., and Europe, under a belief at the time that it was in the child’s best interest.

But the Canadian government says it isn’t liable for any loss of identity or tradition, and on Thursday Crown lawyers asked a judge to dismiss the lawsuit.

“I heard from leadership that spoke of taking this out of court,” said Brown Martel, a member of the Temagami First Nation near Kirkland Lake, Ont., who was 9 years old when she was taken from her home in 1972. “But actions speak louder than words.”

“Our healing is already taking place,” she continued. “The government of Canada can choose if they want to encourage that or say they don’t want to be a part of it. They could speed this along and help.”

Indigenous Affairs Minister Carolyn Bennett said in August that the government “would like to get things out of court and to a table where we can make those kinds of agreements together as a way forward.”

Despite those comments, though, the government has gone ahead with fighting the lawsuit, the latest in a series of moves it’s made over the years to block the case.

In its submissions, the Crown acknowledges that Indigenous children taken from reserves and “placed in non-Aboriginal foster homes or raised in non-Aboriginal adoptive homes [would] have lost opportunities to remain connected to their families and to their language and culture.”

“Many foster and adoptive children faced with such circumstances experienced psychological or other personal harms,” said the government’s factum.

However, the Crown argues, there’s no legal way to apply modern-day standards to practices carried out between December 1965 and December 1984, when an agreement between the federal and provincial government expanded the province’s child welfare programs to Ontario’s reserves.

The plaintiffs argue that “no such imposition is being hoisted upon Canada,” and that “Canada was fully aware … of the frustration, anger, disappointment, and concern of the post-placement effect upon those children after they were removed.”

The government says they had no duty to consult, while the plaintiffs maintain the 1965 agreement required that they do so, that the government knew of that obligation and still failed to meet it a single time.

In court, Justice Edward Belobaba also said there was “overwhelming” evidence that the government had never consulted with any Indigenous band, and that the 1965 agreement offered “no ambiguity” on the topic.

Urging Belobaba to consider the agreement in the context of changing legal norms and the flawed social science available at the time, government lawyer Owen Young also argued that “there was a lack of awareness at the time about the effects of transracial adoption.”

“They were unaware of the consequence on individuals,” he said.

The hearing continues Friday.