In Brown v Canada (Attorney General), (2017 ONSC 251) the Ontario Superior Court of Justice confirmed “great harm was done” when aboriginal children were removed from their homes by provincial welfare authorities and placed in non-aboriginal foster or adoptive homes.

They further held that the Government of Canada was liable for failing to take steps to prevent those aboriginal children from losing their aboriginal identity.

This case involved a class-action lawsuit brought by a class of nearly 16,000 claimants, who were survivors of the Sixties Scoop, and was the result of a summary judgment application by the claimants. The case focused on whether Canada was liable for the class members’ loss of aboriginal identity after they were placed in non-aboriginal foster and adoptive homes.

In 1965, Ontario and Canada entered into the Canada-Ontario Welfare Services Agreement (“Agreement”). In the Agreement, the federal government allowed the province of Ontario to extend the delivery of its child welfare services to Indians on reserve. The Agreement explicitly said that “no provincial welfare program shall be extended to any Indian Band… unless that Band has been consulted by Canada and by Ontario and has signified its concurrence.” Ontario embarked on extending some 18 provincial welfare programs to Indians on reserve. The Court found that the terms of the Agreement mandated the federal government consult Indian Bands before imposing provincial welfare programs on them.

The Court concluded that no Indian Bands were ever consulted.

The uncontroverted evidence was that if Indian Bands had been consulted they would have suggested that foster and adoptive parents be provided with information about the aboriginal child’s heritage and federal benefits available to the child when he or she became of age. The Court concluded that if this information were shared it would have been far less likely that the children of the Sixties Scoop would have suffered a complete loss of their aboriginal identity.

The Court found that Canada had a common law duty to take steps to prevent aboriginal children placed with non-aboriginal foster or adoptive parents from losing their identity. The evidence showed that until 1980 (15 years after the Agreement) Canada had little or no interaction with the removed children or their new parents. The only way an apprehended aboriginal child would ever learn about his or her aboriginal identity and related entitlements was if they were placed in a home where the parents themselves knew, and where the parents chose to share the information with the aboriginal child, or if the child or new parents wrote the federal government to request information.

Canada, however, took no proactive steps to provide any of this information to families until 1980, and thus breached its common law duty of care.

Carolyn Bennett, Minister of Indigenous and Northern Affairs, has said that Canada has no plans to appeal the decision. The case will now move toward the damage assessment stage. The claimants are asking for a total of $1.3 billion ($85,000 per claimant) for the harm caused.

The uniqueness of each province’s agreement with the federal government prevented a national class action suit, but this decision will likely have ripple effects on similar cases commenced in Manitoba, Saskatchewan, Alberta and British Columbia.