The Ontario Superior Court has ruled in favour of Aboriginal Plaintiffs who were removed from their homes as children and placed with non-Aboriginal families (commonly referred to as the “Sixties Scoop”) in Brown v. Canada (Attorney General), 2017 ONSC 251. This case has made headlines in recent weeks as Canada had asked the Court not to release this decision because it was close to a settlement with the Plaintiffs, but the Court declined.
This case is significant as the Court determined that Canada owed Aboriginal children an obligation to take reasonable steps to protect them from losing their Aboriginal identities and cultures. This goes further than court cases that provided compensation for residential school survivors, as those cases were based on physical and sexual abuse rather than on loss of identity and culture.
In this first stage the Court was asked to decide whether Canada breached a fiduciary or common law duty of care when it failed to protect Aboriginal children from the loss of their Aboriginal cultures and identities in non-Aboriginal foster or adoptive homes.
The Plaintiffs argued the duty arose from an agreement in 1965 between Canada and Ontario in which Ontario agreed to extend provincial welfare programs, including child protection, to “Indians with Reserve Status in the Province” and Canada agreed to reimburse Ontario for the cost. The 1965 Agreement also stated that no provincial welfare program would be extended to any Indian band unless the band had been consulted by Canada, or jointly by Canada and Ontario, and had agreed to the extension of the program onto their reserve.
This consultation never happened. The Court heard evidence that had such consultation occurred, the Indian bands could have requested services and programs be provided to ensure that children that were removed from families on reserve could maintain their Aboriginal identities and cultures. Canada had argued that consultation with Indian bands would have made no difference to the experiences of removed children – the Court called that submission “odd” and “insulting”.
The Court found that there was no fiduciary duty in this case, as the 1965 Agreement did not give Canada sufficiently direct control over the interest of Aboriginal people in the protection and preservation of their Aboriginal identity to give rise to a fiduciary duty. However, the Court did find that Canada owed a common law duty to those children that were placed into adopted or foster families to take reasonable steps to protect their ability to maintain ties to their communities and cultures. The Court determined that this duty arose from the requirement in the 1965 Agreement that Canada consult with Indian bands before provincial child welfare programs were extended to those reserves, but that even without that agreement Canada’s obligation to provide for the care and welfare of Aboriginal peoples was sufficiently recognized in Canadian law to give rise to a duty of care. By not consulting bands or providing reasonable measures to protect these children, Canada breached this duty.
The second stage of the case, if this first stage is not appealed or the case settled by agreement, will deal with the amount of financial damages to be awarded to the Plaintiffs.