Author Archives: Alex Darling

About Alex Darling

Alex Darling, BA (University of Toronto), graduated from the University of Calgary Faculty of Law in 2015. During his studies, Alex was active in mooting and debating, including competing in the 2014 Gale Cup Moot in Toronto. After graduation Alex articled at Grover Law Firm, where he currently works as a first year associate in the areas of personal injury and employment law.

The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

Case Commented On: Brown v Canada (Attorney General), 2017 ONSC 251 (CanLII)

PDF Version: The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

By: Elysa Hogg and Alex Darling

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

Introduction

From 1965- 1984 governments across Canada removed tens of thousands of Indian children from their families on reserve and placed them with non-Indian adoptive families or in foster homes and group homes. As a result, many of these children lost touch with both their families and their First Nations identities, with devastating consequences including emotional scarring, substance abuse, and heightened rates of suicide and incarceration. This dark period in Canada’s history is commonly known as the “Sixties Scoop”.

Brown v Attorney General (Canada) 2017 ONSC 251 (CanLII) (Brown) is a decision regarding a class action lawsuit by nearly 16,000 individuals in Ontario who were negatively affected by the Ontario Government’s child welfare policies during the Sixties Scoop. Specifically, the claimants focus on the period between 1965 when Ontario extended its child welfare services to reserves and 1984, when Ontario amended its child welfare legislation to recognize that “aboriginality” should be a factor considered in child protection and placement (at para 14).

The Court held that Canada breached its common-law duty of care by failing to take reasonable steps to prevent removed children from losing their indigenous heritage (at para 85), but declined to find that the Crown breached any fiduciary duty.

This post will aim to provide the following:

  1. Background information on the period commonly referred to as the “Sixties Scoop”;
  2. A brief look at the procedural history of Brown, as well as an analysis of the decision; and
  3. Thoughts on how this ruling, and its implications on tort law and Aboriginal rights, may fit into the federal government’s promises to Canada’s indigenous peoples, and how it may affect Sixties Scoop claimants across the country, including Alberta.

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