Federal Court approves class action on behalf of off-reserve Indigenous children

The Federal Court of Canada has certified a class-action lawsuit against the federal government on behalf of off-reserve Indigenous children who were taken from their families and placed in non-Indigenous care.

In a decision released online Monday, Federal Court Judge Michael Phelan ruled the class period will cover Jan. 1, 1992 to Dec. 31, 2019, a time frame referred to in court arguments as the “Millennium Scoop.”

The decision says those affected include status and non-status Indians, Inuit and Métis youngsters and their families who were not living on reserves.

The class seeks various damages, restitution and recovery of specific costs on behalf of the affected children and families.

Phelan’s decision says granting certification for a single class-action would avoid the prospect of 13 provincial and
territorial separate actions “being pursued by one of Canada’s most disadvantaged groups.”

“The Court is not convinced that the issues are only theoretically common. Individual provincial/territorial welfare practices would need to be considered, whether the claim is in this court or in several courts,” the decision says.

The federal government argued in court that the provinces and territories should be involved in the legal process, but the judge says the Crown didn’t address how it could be done for a national class-action lawsuit.

Phelan says for “judicial economy,” a single national proceeding is more efficient.

“Canada has repeatedly said it seeks reconciliation and resolution. Despite the lengthy period over which the offending acts occurred, that has not happened and there was no suggestion that it was likely or that a vehicle for resolution existed,” the ruling says.

The plaintiffs’ lawyers allege the federal government’s actions breached the Charter of Rights and Freedoms and demonstrated systemic negligence, although the claims haven’t been proven in court.

Vancouver lawyer Angela Bespflug, speaking on behalf of the plaintiffs, says certification “signals an important shift in the law,” because the federal government must now explain why it has treated off-reserve children differently from those living on-reserve.

“It is fundamentally wrong that Canada has agreed to compensate on-reserve children while leaving off-reserve children out in the cold,” Bespflug said in a statement issued by law firm Murphy Battista.

The federal government reached an agreement in principle last year to pay $40 billion to on-reserve youth and their families affected by discriminatory funding practices related to the child-welfare system.

Current data show the vast majority of Indigenous children apprehended and placed into government care are off-reserve Indigenous children, says the statement from Murphy Battista.

The claim is based on Canada’s duty to protect apprehended Indigenous children from harm, specifically as it relates to the loss of their Aboriginal identity.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, says that compared with the height of the residential school period, three times as many children are in state care today.

“Canada has apologized for residential schools, but it has continued the same policies under a different name,” Blackstock said in the same statement.

“We call on Canada to stop fighting off-reserve Indigenous children in court, and to step up to the plate and lead, and to
finally bring about the changes that are needed to fix this deeply broken system,” she said.