Lawsuit claiming loss of aboriginal cultural identity due to '60's scoop' to go ahead
Published Tuesday, July 16, 2013 6:43PM EDT
First Nations Idle No More protesters hold hands and dance in a circle during a demonstration at the Douglas-Peace Arch crossing on the Canada-U.S. border near Surrey, B.C., on Saturday Jan. 5, 2013. (The Canadian Press/Darryl Dyck)
TORONTO -- A class action lawsuit which claims a loss of cultural identity was suffered by aboriginal children adopted into non-indigenous homes during the so called "60's Scoop" was given the green light to proceed by an Ontario court on Tuesday.
The case -- which focuses on a period between the 1960s and the 1980s when thousands of aboriginal children were taken from their homes and placed with non-native families -- is being flagged by the plaintiffs' lawyer as a landmark suit against the federal government.
"This is the first case in the Western world where indigenous persons have come forward and said that our culture is as important as our land claims, fishing rights and hunting rights," said Jeffery Wilson.
"Where they were placed, Canada then turned a blind eye to preserving and protecting their culture. So we essentially lost a generation of aboriginal children who feel detached."
The federal Crown has argued that the claim for loss of cultural identity isn't known in law, said Wilson.
But the case's representative plaintiffs -- Marcia Brown Martel and Robert Commanda -- maintain that their claimed loss of cultural identity has left them feeling they don't belong in aboriginal or mainstream society.
Martel, now the 50-year-old Chief of the Beaverhouse First Nation in northern Ontario's Kirkland Lake region, was adopted when she was nine years old, at which point her aboriginal name was changed.
She only found out years later that a federal register listed her as deceased under her original name.
"The name I use now...it's not my name," she said in angry, measured tones. "How does one lose their name! But I did. My name was taken from me, my very name."
Martel said the relationship she should have had with her original aboriginal community disappeared after she was adopted. She cut ties with her adoptive family after she turned 18.
Commanda, who left his parents' home when he was two year old, said he too lost all bonds with his native culture.
"I don't belong there, and really don't belong out here either," he said. "I hold the federal government responsible for what happened to us after we were apprehended."
The federal ministry of aboriginal affairs was not immediately able to provide comment.
Martel and Commanda first asked for permission to put their case forward as a class action in February 2009, but the federal government successfully appealed certification of the proceedings. A new hearing was ordered in January this year.
On Tuesday, Wilson said the Ontario Superior Court of Justice certified the case after dismissing a Crown motion asking for the suit to be quashed.
The justice presiding over the hearing will provide written reasons for his decision in September after which the case will proceed to trial, barring any appeals by the Crown.
None of the class action lawsuit's claims have been proven in court.
"We've had a lot of procedural wrangling and we know that we have a long way to go in this journey, but at least now we're walking a path in the right direction," said Wilson, adding that there are thought to be 16,000 surviving children of the 60's scoop in Ontario.
"What will be determined is whether or not there is a valid claim cause called loss of culture, and if there is, what are the appropriate damages in respect of that, that harm that was caused."