Last week, Justin Trudeau’s government tried to stop Ontario Superior Court Justice Edward Belobaba from issuing a ruling promised for February 15, 2017 on the liability of Canada for Ontario Indigenous children’s loss of cultural identity during the Sixties Scoop.
The Sixties Scoop era from 1965 to1984 placed 16,000 indigenous children from Indian-reserves in Settler foster homes. Plaintiffs in the $1.3 billion lawsuit claims that the Settler government’s foster care policy harmed children’s identity.
In response, the federal Justice Department letter last week to Justice Belobaba said Canada “would like to address the timing of the release of your decision on the summary judgment motion, given the Minister of Indigenous and Northern Affairs Canada’s stated intent to launch negotiations towards an agreement in principle to all Sixties Scoop litigation and the potential benefits to the negotiations that an abeyance of your decision might have.” The Trudeau government’s Indigenous Affairs Minister Carolyn Bennett Carolyn offered to negotiate an out-of-court settlement process for the Sixties Scoop she called a “dark and painful” chapter in Canada’s history.
In other words, please don’t throw the colour-of-law at something Canada can keep hidden in the dark — as painful as that chapter might be in the history of Canada’s treatment of indigenous children.
In December 2016 Trudeau’s government claimed that determinants of aboriginal culture or identity were too vague to render any protection obligation on the part of Canada legally enforceable. Canada admitted in government arguments that at-risk children likely suffered harm from loss of their indigenous identities. However, the government argued against their complicity in harming children’s identity because it had no “duty of care” toward indigenous children. Provincial confidentiality provisions prevented disclosure of the identities of a child’s biological parents who were usually Status Indians under federal authority.
In the context of the Sixties Scoop legal and social norms were still evolving and that the consequences of “transracial” adoptions were not well understood — the “we-didn’t-know” argument used by Canada’s lawyers.
Plaintiff, Marcia Brown Martel, said Canada knew about the emotional trauma that was happening to the children placed with non-indigenous families. A member of the Temagami First Nation near Kirkland Lake, Ont., 53-year-old Brown Martel was adopted at the age of nine in 1972 by a non-indigenous couple. She claims that she discovered the Canadian government had declared her original Indigenous identity dead.
The connection between trauma and foster care is not new. In the documentary, No Turning Back (NFB 1996), the Royal Commission on Aboriginal Peoples heard testimony from Indigenous inmates that foster care brutality criminalized them — something that didn’t happen when they were in foster care with native families where cultural identity was supported. Foster care “killed the Indian in the child” in ways similar to Indian Residential School (IRS) system.
Clearly, the Sixties Scoop is a legacy of Canada’s IRS policy that former Prime Minister Stephen Harper admitted in the 2008 Statement of Apology to former students of Indian Residential Schools, on behalf of the Government of Canada was used “to kill the Indian in the child”. So, there are two prime ministers in a row that admitted Canadian complicity in cultural genocide that began with the IRS policy, leads to the Sixties Scoop policy, and even continues today in current problems in Ontario’s foster care system.
Recent actions by Canada undermines Trudeau’s stated commitment to partnering with indigenous peoples to respond to the serious problems created by Canada’s IRS policy. The challenge was issued through the 94 recommendations of the Truth and Reconciliation Commission (TRC) “Calls to Action” released in December 2015.
“We need nothing less than a total renewal of the relationship between Canada and indigenous peoples,” said a teary-eyed Trudeau December 15, 2015. “I give you my word that we will renew and respect that relationship.”
The TRC seven-volume 3,766 page-report connected provincial and federal complicity in cultural genocide when the “Call to Action” urged that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers — another statement of the Sixties Scoop legacy. In particular Trudeau accepted the TRC’s recommendation for the requirement that “temporary and permanent care be culturally appropriate” for indigenous children. As well the TRC recommended “the right of Aboriginal governments to establish and maintain their own child-welfare agencies” in partnership with provincial and federal governments — a finding of the TRC but also heard in Belobaba’s court that was missing during the Sixties Scoop.
The TRC called on “the federal government to acknowledge that Aboriginal rights include Aboriginal language rights” under an aboriginal entitlement to self-govern protected as an “inherent right” under section 35 of the Constitution Act, 1982. “Aboriginal self-government” over Indigenous identity and culture was accepted by Trudeau as rooted in Indigenous language. Plaintiffs in the Sixties Scoop lawsuit make the claim that they were forcibly governed under foster care laws that was the basis of the harm to their lost cultural identities.
Interference by the federal Justice Department in the administration of Belobaba’s court should raise flags for indigenous peoples. Canada claimed to affirm Indigenous peoples’ inherent right to aboriginal self-government when Bennett announced that Canada adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in May 2016. UNDRIP supports consultation between Settler governments and Indigenous peoples to protect rights like land, culture, and intellectual properties. However, indigenous government policy remains in the jurisdiction of the Government of Canada. Telling a judge what to do reinforces the government desire for governing by policy, rather ruling by law. In the case of the Sixties Scoop, Canada finds it desirable to keep Indigenous rights away from the law. Canada is in a bind.
UNDRIP protects the inherent right of Indigenous People to “their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.” Identified historically as the era from 1965 to 1984, the Sixties Scoop ended after the Constitution Act of 1982 made the aboriginal inherent right to self-government law in Canada. The right to govern over the transmission of “their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources” existed before the arrival of the Settler populations.
Canada can’t claim they weren’t liable for harm to our children’s cultural identity caused by foster care through the Sixties Scoop.
Thohahoken Michael Doxtater is an educator from Six Nations.