Challenging Canada’s Role in the Sixties Scoop: Seeking Compensation for Indigenous Children

Class Action Lawsuit Challenges Canada’s Role in the Sixties Scoop

The class action lawsuit challenges Canada’s role in the Sixties Scoop, when Indigenous children were removed from their families and placed into non-Indigenous homes. It seeks compensation for every child who was taken and for parents and grandparents, as well as estates of harmed individuals.

It’s a bold and important lawsuit, but it has its limitations.

The Lawsuit

The lawsuit seeks compensation for Indigenous children and their families who were apprehended by child welfare agencies while living off-reserve between January 1, 1992 and December 31, 2019, and placed in the care of individuals who were not members of their family, community or group. It also seeks compensation for parents and grandparents of those apprehended, as well as the estates of those who died while in care.

This class action alleges that Canada, by its acts, policies and omissions, caused this discrimination by failing to provide adequate funding for child welfare services in First Nations communities. This, it argues, incentivized the removal of children from their families.

Cochrane Sask LLP is working with other law firms to bring this class action to justice. If successful, it will result in compensation for off-reserve off-reserve children who were overrepresented in the child welfare system and are now eligible under Jordan’s Principle. It will also include compensation for parents and grandparents who lost the ability to pass on their traditional languages, culture and spirituality to their children as a result of this alleged discrimination.

Class Actions

The class action lawsuit seeks various damages, reparations and costs on behalf of families in Canada’s First Nations – including both those who identify as “status” Indian (registered with a federally recognized tribe) and those who don’t (because they don’t meet the eligibility requirements). Last year, the government reached an agreement in principle to pay $40 billion to reform and compensate on-reserve children, youth and families hit by discriminatory practices in child welfare funding.

The suit alleges that the Canadian government failed to uphold its duty to protect Indigenous children in state care from harm and displayed systemic negligence, claims that haven’t been proven in court. It also alleges that Ontario owed Crown Wards who experienced abuse a duty to advise them of their rights and available remedies.

The federal government has been opposing more than $80 million in legal fees requested by the lawyers working on the class action, CBC News has learned. It argues the fee requests are too high and would mean some of the lawyers would be paid $4,500 per hour or more.

Damages

Hundreds of thousands of Indigenous children were taken from their families and placed in foster homes or residential schools between the late 19th century and the 1990s. Many died from malnutrition, disease or neglect in what a truth and reconciliation committee called cultural genocide.

Canada has apologized for residential schools, but the country has fought in court over orders to pay compensation and fund reforms. The agreement reached on Tuesday will provide $23 billion in compensation to children and families, with an additional $20 billion to reform the child welfare system.

The settlement also aims to resolve ongoing barriers to services, such as legal fees, caseworker salaries and costs for building repairs, purchases of child service equipment or the actual costs of band representatives in some provinces. It will also require Ottawa to respect Jordan’s Principle, a legal rule that says federal government departments must pay for and deliver health and social services to First Nations youth on reserves on a level substantively equal to non-First Nations youth.

Representation

The class action covers status and non-status Indian children, Inuit and Metis who were apprehended from their families while living off reserve and placed in non-Indigenous care. It seeks damages and restitution on their behalf.

Blackstock says she expects the federal government to apologize for the harm done by its child welfare system, but that is not enough. She wants to see change in how the government treats Indigenous children going forward.

Kugler Kandestin lawyers say a C$40 billion agreement reached in two separate agreements will provide compensation for potentially hundreds of thousands of First Nations children who were removed from their homes and into care or experienced delays in receiving services. It also includes a fund to reform the child welfare system.

The federal government challenged the tribunal’s ruling, arguing it took a “one-size-fits-all approach” that excluded many of those who suffered because of the underfunding of child and family services on reserves. The court disagreed and ordered the settlement to proceed.

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