‘I will never give up,’ plaintiff says after Ottawa blocks aboriginal lawsuit

The Harper government is fighting a class action lawsuit by aboriginal children who argue the loss of their culture in foster and adoptive care was a wrongful act — a case that could make western legal history.

Although Ontario Children’s Aid agencies took 16,000 children from their families during the so-called Sixties Scoop and placed them in non-aboriginal care, the multi-million-dollar lawsuit names only the Attorney General of Canada. Ottawa is constitutionally responsible for native peoples.

Ottawa quietly appealed the lawsuit in a Toronto courtroom on Oct. 28 — a year after it was certified by the Ontario Superior Court of Justice.

As a result, the case hasn’t gotten to court almost three years after it was filed.

Taken as children, the plaintiffs are now middle-aged and, in many cases, desperate to find their roots. They tell stories of abuse, prejudice, loneliness and isolation. They convey a sense of having been treated like commodities rather than human beings. Accounts suggest many were bounced around — even from country to country — with nobody keeping track.

Marcia Brown, 48, is a lead plaintiff on the case. Ontario Children’s Aid officials took her from the Beaverhouse First Nation in northeastern Ontario when she was 4.

Brown, who’s Ojibwa, went from foster homes to an adoptive home at 9, where she says her non-aboriginal mother tried to wash off her “dirty brown” colour and burned her stuffed tiger full of “Indian bugs.”

After the case was filed in early 2009, she told the Star: “I knew God himself didn’t want me.”

Jeffery Wilson, who represents the aboriginal plaintiffs, criticizes Ottawa for tangling up the suit with legal wrangling paid by taxpayers.

“The attitude of the Crown suggests to my clients that their culture is worth less than nothing,” said Wilson, an expert in children and the law. Co-counsel Morris Cooper specializes in class action suits.

Says Cooper: “You’re dealing with a defendant (Ottawa) with bottomless resources and certainly no interest in seeing any resolution to this litigation.”

From her Kirkland Lake home, Brown says she’s disappointed by the appeal. She believes it contradicts public rhetoric about justice for First Nations and Prime Minister Stephen Harper’s apology to the aboriginal survivors of residential church schools. The “kill the Indian in the child” mentality of the past is supposed to be defunct.

“It’s the same thing,” says Brown, of the Sixties Scoop. “I look at this appeal as a lack of respect for our rights and culture. It’s just wrong.”

When she was 17 and living in Texas with her adoptive mother, the woman took her to the Houston airport, handed her a ticket to Canada and sent her packing with nothing but a suitcase filled with her little girl clothes.

“I didn’t get to speak in my own tongue to my grandmother before she passed away,” she says. “I didn’t fit in anywhere. I saw no difference between myself and a puppy or kitten up for adoption.”

“I will never give up . . . . We live in a beautiful country but a great mark — the unpleasant history with the aboriginal people — stains Canada. The Canadian public doesn’t know the truth about what happened to the children.”

In a 2010 update, Wilson wrote to aboriginal leaders: “For the first time in western law jurisprudence, a case will proceed on the basis that loss of culture is can be litigated as a wrongful act.”

Asked why Ottawa is fighting the claims of aboriginal children, an Aboriginal Affairs spokesperson referred the Star to the justice ministry. A fax from justice said it would be “inappropriate” to comment.

“On the matter of costs (of the federal legal team), I will refer you to the department’s access to information and privacy office . . . contact information below,” the fax says.

Rob Lackie, 41, an Inuk from Happy Valley in Labrador, was also part of the Sixties Sweep (which actually ran from 1965 to 1985 with Ontario officials). Much of his past remains a mystery to him.

It’s not clear how Ontario Children’s Aid officials were able to offer him for adoption in 1974 to a couple from Georgian Bay. They flew to Newfoundland, picked him up in Bay Bulls and, then back in Ontario, finalized the adoption in Simcoe County.

He was 4 and had already been through three foster homes. With two fair, blue-eyed siblings, he realized he was different but didn’t know about his Inuit birthright until he was 11. He didn’t meet his biological mother until 2006.

He says the biggest loss was growing up without the rich language and culture of his birth. For that reason, he believes authorities should have focused on finding aboriginal families for the children. Lackie, who lives in Toronto, says: “I always felt as if a big part of my life was missing.”

His adoptive parents were kind, but unable to preserve his heritage. He has spent the last few years learning about the Inuit culture and taking classes in the Inuktitut language.

For the first time, too, he met his sister who lives in the U.S. They were separated and he says she doesn’t qualify for the class action suit because she’s an American citizen.

During the certification hearing in 2010, Wilson cites an exchange with Superior Court Justice Paul Perell. He says Perell inquired what would happen if 16,000 Jews in Canada similarly lost their cultural identity.

Wilson paraphrases his response: “Well, your honour, there would be a huge uproar if 16,000 Jews lost their culture . . . (as there would be) with 16,000 Muslims or 16,000 Hindus.”

This prompted a clarification that only with First Nations people is there a clear constitutional obligation by the federal government.

A decision on the appeal — before a three-member tribunal that includes Associate Chief Justice J. Douglas Cunningham — is expected this fall.

Since the Toronto case began, similar claims have been launched in B.C. and Saskatchewan.

The practice of ignoring cultural identity is supposed to be over.

But in her 2008 annual report, then-federal auditor Sheila Fraser criticized Indian Affairs for failing to oversee the “cultural appropriateness” of child-care services for aboriginal children.

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Source: Toronto Star