The federal government had no legal obligation to prevent on-reserve children from losing their aboriginal identities after placement in non-indigenous homes during the so-called '60s Scoop, an Ontario court heard Thursday.
In urging a class action to be thrown out, a government lawyer also argued that the notion of aboriginal culture or identity is too fuzzy to render such an obligation – had it existed – legally enforceable.
The 2009 lawsuit seeks $1.3-billion on behalf of about 16,000 indigenous children in Ontario who claim they were harmed by being placed in non-aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement.
While the arguments are legally complex, one key element of the plaintiffs' claim is that the government never consulted Indian bands about the child-welfare program as required by the 1965 agreement – a point seized on by Ontario Superior Court Justice Edward Belobaba.
The agreement, Belobaba said, appeared to have "no ambiguity" as to the consultation requirement.
"The evidence is overwhelming that not once did the federal government consult with any Indian band," Belobaba said. "They had to consult with Indian bands and they didn't."
"Would life have been different had they been consulted?" asked government lawyer Owen Young.
Belobaba suggested consultations would have afforded aboriginal leaders an opportunity to provide input into the program that might have mitigated the harm of placing the children outside their communities.
The government does admit that the at-risk children may well have suffered harm from loss of their indigenous identities. However, it insists it is not liable because it had no "duty of care" toward them – an assertion Belobaba said was clearly in dispute given the consultation requirement.
Young urged the justice to consider the agreement in the context of the time it was signed, arguing that legal and social norms were still evolving, and that the consequences of "transracial" adoptions were not well understood.
In addition, the federal government was stymied by confidentiality provisions that cloaked adoptions, preventing disclosure of the identities of a child's biological parents, Young said.
"You must throw yourself back to 1965 and interpret it," Young said. "That interpretive exercise is affected by the standard of care of the time."
The lead plaintiff, Marcia Brown Martel, says it was clear Canada knew about the anger and frustration about what was happening to the children after they placed with non-indigenous families.
Brown Martel, 53, a member of the Temagami First Nation near Kirkland Lake, Ont., was adopted by a non-aboriginal couple in 1972 at age nine. She later discovered the Canadian government had declared her original identity dead.
"Canada took no steps to assist the adopted child post-adoption," Brown Martel says in her court filings.
Young also suggested there were questions about whether the court even has jurisdiction to decide the case.
The hearing, which began in August, continues Friday.