Winnipeg Free Press - PRINT EDITION

Give suit its day in court

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The federal government wants to halt an aboriginal lawsuit for loss of cultural identity. It's currently appealing an Ontario court's certification of a class-action suit by aboriginal children who were forcibly fostered or adopted into non-native families. The government is wrong to try to cut off their access to the courts.

From the 1960s through the 1980s, child-welfare agencies removed thousands of aboriginal children from their homes and placed them with non-native families. Proverbially known as the Sixties Scoop, the children were placed with non-indigenous families and as a result lost their cultural identity. Best estimates of the number of children taken range between 16,000 and 20,000, the vast majority of whom still survive.

The lawsuit's representative plaintiffs maintain their loss of cultural identity has left them, and others like them, in a cultural identity no man's land -- feeling they don't fit in either aboriginal or mainstream society.

For years, the federal government, rightly, resisted calls for it to simply open the public purse and pay compensation for loss-of-culture claims.

Faced with that refusal, a group of affected individuals launched a class-action lawsuit that was finally certified in Toronto last summer by the Ontario Superior Court of Justice.

This was their second attempt to launch a class action. An earlier attempt in 2009 was unsuccessful. But after years of legal wrangling, a new certification hearing was ordered that resulted in the suit's certification July 16 of this year.

The federal government should abandon its appeal of certification of the class action. Any group that believes it has a lawful basis for seeking compensation should be allowed to put its claims before the courts for validation and quantification. It's entitled to furnish evidence and proof its claim is factual and founded in law.

The success of the aboriginal group's claim for loss of cultural identity is far from certain. Unlike land claims, fishing rights and hunting rights, claims for loss of cultural identity are novel.

And the federal government has seized on this novelty.

It has taken the position that the claim for loss of cultural identity isn't known in law. It has even gone so far as to admit that though the children swept up in the Sixties Scoop suffered, their claims aren't the kind the courts should deal with. The Department of Justice's lawyer conducting the appeal maintains existing legal tools aren't up to the task of adjudicating these kinds of claims, and the issue might be better relegated "to a socio-political discussion."

The federal government's position ignores the fact that our courts frequently validate pioneering claims. And more and more regularly, courts are being asked to assess historical wrongs and quantify damages for what's inherently difficult to quantify.

The federal government's appeal of the certification amounts to a blatant attempt to prevent the aboriginal group from getting a full and fair hearing of their grievances. The Sixties Scoop group should be allowed its day in court.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition December 9, 2013 A8

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