‘We can hold Canada to account’

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This article was published 01/08/2017 (2958 days ago), so information in it may no longer be current.

A class-action lawsuit seeking compensation for Manitoba’s Indigenous children who were victims of the ’60s Scoop is moving forward in court, but some observers are concerned it could exclude victims who were living off-reserve when they were taken from their homes and placed for adoption.

Manitoba’s Court of Appeal recently ruled there can only be one class-action lawsuit representing ’60s Scoop victims even though two different law firms had taken legal action on behalf of the Manitoba victims. It agreed with a lower court’s decision to dismiss one of the suits — one against Manitoba and Canada that described the ’60s Scoop as cultural genocide — and move ahead with a narrower claim against the federal government alone.

The class-action lawsuit still needs to be certified by the courts in order to go ahead, but Garth Myers, a Toronto-based lawyer with Koskie Minsky, the firm pursuing the claim, said he’s confident it will move forward.

“The time it’s taken to get this far — it’s been too long, and we’re looking forward to taking Canada to court as soon as possible,” Myers said. “We can hold Canada to account for the historical wrongs they’ve committed.”

Myers could not yet say how many Manitoba ’60s Scoop survivors would be included in the proposed $200-million class-action lawsuit.

Koskie Minsky filed its Manitoba ’60s Scoop claim, known as Meeches and Garnett vs. the Attorney General of Canada, last year based on a similar class-action suit in Ontario that is now working its way through settlement negotiations for Indigenous children who were “scooped up” from their homes between the 1960s and mid-1980s and put up for adoption within non-Indigenous families. Ontario’s Superior Court of Justice ruled earlier this year that the federal government must be held liable for failing to protect the cultural identity of those children.

The wording of the claim going forward in Manitoba applies to “all Indian, non-status Indian and/or Metis” children who were living on-reserve in Manitoba on or after Sept. 2, 1966 when they were adopted into non-Indigenous homes. But that would exclude Indigenous children — including Metis — who lived off reserve before they were adopted.

The Meeches claim is “so narrow that it doesn’t cover the important actors in the matter,” said Merchant Law Group lawyer Norman Rosenbaum, whose firm fought to have its proposed class-action ’60s Scoop claim considered by the court. Merchant Law Group’s claim, first launched in 2009, was against the provincial and federal governments and alleged negligence, breach of fiduciary duty and cultural genocide. The Court of Queen’s Bench and now the Court of Appeal decided that claim should be dismissed in favour of pursuing the Meeches lawsuit.

The appeal court acknowledged it is “regrettable” that the proposed class-action lawsuit may exclude some ’60s Scoop survivors, but said they could file their own individual claims in court.

Rosenbaum said Merchant Law now plans to seek leave to appeal that decision at the Supreme Court, arguing that Metis and off-reserve Indigenous children don’t have equal access to justice.

If they’re excluded from the class-action suit and have to launch their own lawsuits, Rosenbaum said, “it can be extremely expensive for them. A long, hard fight.”

Not taking action against Manitoba’s provincial government in addition to the federal government, Rosenbaum added, could be “risking the entire (case) for everybody.”

Across Canada between the 1960s and 1990s, more than 20,000 Indigenous children were taken from their families by children’s aid workers acting on federal government policies and were adopted into non-Indigenous homes. Anywhere between 5,000 to 10,000 of those children may have been from Manitoba, many of them sent to live with families in the U.S.

Manitoba Metis Federation President David Chartrand said he’s disappointed the proposed class-action lawsuit appears to exclude Metis ’60s Scoop survivors and others who didn’t live on reserves, especially given the fallout from Metis residential school survivors being excluded from mass residential-school settlements that were designed to represent those who lived on reserve.

“The trickery of one word can change so much. And so we’ll be taking very close watch over this,” Chartrand said, adding this case may present an opportunity for the federation to negotiate directly with political leaders.

“I think this will end up being a political decision at the end of the day no matter what,” Chartrand said.

The exact number is unknown, but Chartrand said “a very large number” of Manitoban ’60s Scoop victims were Metis.

“They were actually selling our children by the thousands to the United States,” he said.

 

katie.may@freepress.mb.ca  

Twitter: @thatkatiemay

wfppdf:http://www.manitobacourts.mb.ca/site/assets/files/1036/thompson_et_al_v_minister_of_justice_of_manitoba_et_al_meeches_et_al_v_the_attorney_general_of_canada_2017_mbca_71.pdf | Manitoba Court of Appeal's full decision:wfppdfwfppdf:https://www.canlii.org/en/mb/mbqb/doc/2016/2016mbqb169/2016mbqb169.pdf | Initial Court of Queen's Bench decision:wfppdf