THUNDER BAY – Nishnawbe Aski Nation (NAN) Deputy Grand Chief Terry Waboose is concerned that the Attorney General of Canada sought and obtained a substantial award for court costs against two First Nation plaintiffs in relation to a decision of the Ontario Superior Court of Justice upholding an appeal by the Government of Canada in Brown et al v. The Attorney General of Canada, a landmark class action proceeding on the deprivation of cultural identity in what is known as the “Sixties Scoop”.
“We are very disappointed with the position taken by the Attorney General of Canada on costs, considering that the case raises issues of broad public interest and the federal Crown is required by the Constitution to act honourably in all its dealings with First Nations,” said NAN Deputy Grand Chief Terry Waboose, who holds the social services portfolio. “We are very concerned that this ruling may deter other First Nation members, or anyone with limited financial means, from bringing legitimate concerns before the courts.”
On the website, www.sixtiesscoopclaim.ca it states, “On December 28, 2011, the Ontario Superior Court of Justice – Divisional Court released its decision. Many of us attended before the Divisional Court in Toronto on October 28, 2011 when the Court heard the argument of the Defendant Attorney General of Canada and the responding argument of the intended representative Plaintiffs, Marcia Brown and Robert Commanda.
“In its 6 page decision, the Divisional Court disagreed with Justice Perell, the first judge who ruled that the case could go forward as a class action proceeding, provided our pleading was amended and provided the Court approved the litigation plan.
“Justice Perell had accepted that the facts, as presented by Marcia Brown and Robert Commanda on behalf of 16,000 fellow aborignal persons, contained good enough reasons for the 60’s Scoop to be redressed through a class action. This action, according to Justice Perell, would be a case where any aboriginal person who was placed in a non-aboriginal home in Ontario between 1965 and 1984 could join in and have access to justice for the loss of their cultural identity as a result of what happened during the 60’s Scoop”.
Marcia Brown, who was elected Chief of Beaverhouse First Nation in 2011, and Robert Commanda launched a lawsuit in February 9, 2009 against the Attorney General of Canada under the Class Proceedings Act. On May 26, 2010 a judge granted a motion to certify the action as a class proceeding conditional upon the plaintiffs revising their proposed class action and conditional upon the court approving a litigation plan for a revised class action.
In a December 28, 2011 decision, however, the Superior Court of Justice ruled that conditional certification of a class action proceeding should not have been granted.
Between 1965 and 1985 an estimated 16,000 Aboriginal children in Ontario, including members of NAN First Nations, were removed from their homes and placed in other (mostly non-native) communities across Canada and the United States.
“The Sixties Scoop was a continuation of the assimilation policies of the Residential School system and the impacts of these transgressions have permanently scarred countless First Nations,” said Waboose. “An entire generation lost its Aboriginal identity and culture and we support their efforts in pursuing litigation to hold the Government of Canada accountable for this devastating legacy.”
www.sixtiesscoopclaim.ca has been established to help First Nations register and obtain more information on the class action proceedings.