Over two decades starting in the early 1960s, as Ottawa began to phase out its Indian residential schools program, thousands of First Nations children were taken from their families, often without consent, and placed in non-indigenous care. To ensure the children would never return to their communities, death certificates were issued expunging any record of their indigenous existence.
Like the residential schools, the “Sixties Scoop” was an attempt to forcibly assimilate indigenous children. The strategy was the same: dislocate them from their family, community and language – and watch the culture atrophy.
As with residential schools, the scoop has had a widespread and devastating intergenerational impact on survivors and their communities. But unlike residential school victims, survivors of the scoop received neither official acknowledgement of Ottawa’s wrongdoing nor any promise of compensation for their suffering. That is, until now.
A Superior Court judge ruled on Tuesday that the scoop constituted a violation of Ottawa’s duty of care to indigenous peoples. If the plaintiffs get the damages they were seeking, the bill for Ottawa’s failure will exceed $1 billion. It’s a just result of a nearly decade-long battle, but it should never have come to this.
Since the class-action suit was filed in 2009, successive governments contested the case, claiming the scoop was a product of a different era when policy-makers genuinely believed that adopting out indigenous children to white families improved their chances of escaping poverty, getting a good education and settling into a productive middle-class life.
But in his decision, Justice Edward Belobaba said Canada’s submissions “missed the point.” Governments of the day may well have been unaware of some of the particular harms the scoop would cause to individuals, but they surely should have known the damage to indigenous culture and community and, in turn, the human toll.
“The issue is not what was known in the 1960s about the harm of trans-racial adoption or the risk of abuse in the foster home,” Belobaba wrote. “The issue is what was known in the 1960s about the existential importance to the First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of the extended family. There can be no doubt that that was well understood by Canada at the time.”
The crux of the case was an agreement struck between Ottawa and Ontario in 1965, which allowed the province to extend child welfare services to indigenous people living on reserve. As part of the deal, Ottawa assured First Nations communities that they would be consulted before provincial officials intervened. That never happened.
For their part, federal lawyers argued that community members, had they been consulted, likely wouldn’t have had any better ideas about how to deal with the children anyway – a claim Belobaba dismissed as “odd and, frankly, insulting.”
Odder still, and arguably yet more insulting: the lawyers making this case were representing the Liberal government of Justin Trudeau. That the Harper Tories fought the lawsuit was, if less than laudable, at least largely consistent with their adversarial approach to indigenous issues. But for the Trudeau government, which has been outspoken in its condemnation of residential schools and commitment to reconciliation, this looks a lot like hypocrisy.
Trudeau has made much of his government’s responsibility to repair its predecessors’ tragic mistakes on indigenous issues. But a new relationship requires an end to the adversarial one that preceded it. In fighting the lawsuit, he made worse what he promised to make better. He should accept the verdict and officially apologize for the Sixties Scoop, lest he give a future government yet more reason to say sorry.
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