Survivors Awaiting Final Settlement Agreement

On October 5, 2017, Canada announced an “Agreement in Principle”, settling, for all of Canada, a plan for compensation, healing, and change.

Since then, we have heard from many. Once the agreement is finalized, the application process for compensation will begin. The Foundation for healing and change will go forward.

If you are interested in the work of the Foundation and wish to contribute to the process of healing and change, email sixtiesscoopfoundationtable@gmail.com

If you have already sent in your name as a survivor seeking compensation, or have written indicating your interest in the Foundation, we will be responding with more information once the settlement agreement is finalized.

Thank you

Wilson Christen LLP, counsel to Marcia Martel (Brown)

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We invited lead lawyer Jeffery Wilson to clarify questions being asked. We set out the questions and Jeffery’s answers:

  1. Question: Can I still sue the children’s aid societies and the Ontario government for the harm I experienced as an foster child, crown ward or adopted child.

Answer: Yes, you can do that.

This case and your participation in the settlement means you cannot sue Canada (the Federal Government). Canada would not have legal responsibility for physical or sexual harm experienced when you were in care. Canada’s liability, because of this case, is limited to Canada’s failure to inform you and your caregivers of your First Nations’ cultural identity and benefits to which you would have been entitled.

However,  you can still sue the province and the government institution (namely, the children’s aid society) responsible for removing you from your home.

  1. Question: Is the settlement amount for the compensation better or worse than had we gone to court on October 11, 2017 before the Honourable Justice Belobaba?

Answer: Better, much better. Here are 9 reasons why:

 i) This settlement is Canada-wide. Brown v Canada is Ontario-wide.

ii) This settlement includes crown wards. Brown v Canada is limited to adopted children.

iii) This settlement includes long-term temporary wards. Brown v Canada is limited to adopted children.

iv) This settlement includes claimants from 1951 – 1991. Brown v Canada is limited to 1965-1984.

v) This settlement includes Inuit children. Brown v Canada is limited to “Indian” survivors.

vi) This settlement includes “Indians” living on and off of reserves. Brown v Canada is limited to “Indians” living on reserves.

vii) This settlement will definitely enable payment in a much shorter period of time than if we proceeded to court.

viii) This settlement may result in payments of $50,000 per claimant. We predicted that we would not have secured this much per claimant had we proceeded to Court.

ix) This settlement includes an initial payment of at least 50 million dollars for a Foundation to provide healing opportunities for the survivors and to take advocacy steps to stop, once and for all, the removal of any Indigenous child in Canada from their families and communities. This was not an outcome we could have achieved in court.

  1. Question: What about $25,000-$50,000? That doesn’t seem very much for someone who lost their cultural identity?

AnswerYou’re right. It isn’t very much. There is no amount of money that could replace what you have lost or that could make up for what you suffered.

I lost both my parents at a young age and received $25,000 from their estate. It didn’t replace them and it didn’t make me whole—so I understand why this seems like “not enough.” There is no “enough.” I know someone wrote in and said “it should be a hundred thousand dollars.” Maybe, it should be more. But, no court would have ever ordered anything close to $100,000! We negotiated against the backdrop of what we could realistically get from the court, applying western law. Like any other case, this one is the beginning, the first step.  

And while this settlement cannot give you back what you deserve or what you have lost, it can make a very big difference. It  is symbolic and shows that cultural identity will now be something that courts have to consider, and measure in all cases from this point forward. Because of you, the law must now recognize that “saving the child” means keeping him or her with  family, or extended family or her or his community.

Loss of cultural identity is a collective loss. That means we have to consider the total of what we have achieved, and not simply the amount per claimant.

  1. Question: This Foundation, who will run it, and can I be part of it?

Answer: First Nations people will run it if they come forward and demand that they run it. I am the acting chairperson of the Working Committee for the Foundation. If you want to be part of it, send an email to sixtiesscoopfoundationtable@gmail.com.

  1. What will the Foundation do?  How will I benefit from it?

Answer: The Foundation’s mandate will be shaped by those who come forward to lead it. But the intent is that it will support advocacy efforts to protect First Nations children and offer support for healing and counselling services to those who need it.  Don’t think of it as a “physical place” but rather as a country-wide resource for all survivors.  No matter where you live in the country, the Foundation’s support and resources will be available to you. 

  1. Question: Why are Métis not part of the deal?

Answer: They are part of the deal insofar as they are part of the people to be served and helped by the Foundation. They are not part of the individual compensation entitlement because there are no records to properly identity Métis for the purpose of this settlement.

However, the settlement does not preclude Métis people from suing a provincial or federal government, or provincial organization (like the CAS) if they choose to do so in the future.

  1. Question: When will we get our money and how much of it will go to lawyers?

Answer:  None of it will go to lawyers as long as  you use the 4 law firms who helped the government negotiate this deal. In B.C. call David Klein (Tel: 604-714-2070, Website:  http://www.callkleinlawyers.com), in Manitoba and Saskatchewan, call Kirk Baert (Tel: Manitoba 1-844-819-8527, Saskatchewan 1-855-595-2621, Website: kmlaw.ca) , in Alberta, Yukon, and the Prairie provinces, call Tony Merchant (Tel: 1-888-567-7777, Website: www.merchantlaw.com). In Ontario, call Wilson Christen LLP. All of these lawyers have legally agreed (as part of the settlement)  to charge nothing to any sixties scoop survivor needing help to file a claim.

If I have my way, you shouldn’t need a lawyer to file your claim. It should be a simple exercise, one or two page form. The form is being created by the Federal Government. Once, it is created and released to the public we’re hoping six months for receipt of payments but understand that there has to be a notice period paid for by Canada and notice to people not only in Canada but in the USA and overseas, and that has to happen first. We have to do our best to make sure that everyone, who is entitled to receive money or be assisted by the Foundation, knows about it. Once the form is finalized it will posted on our website. Please continue to monitor our website for updates on the form and process.

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Canada Stepped into the Light

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Sixties Scoop survivors’ decade-long journey for justice culminates in historic pan-Canadian agreement

Chief Marcia Brown Martel joins Minister of Crown-Indigenous Relations to announce a pan-Canadian resolution for children of the Sixties Scoop

Ottawa, October 6, 2017— Today, surrounded by fellow Sixties Scoop survivors from across Canada, Chief Marcia Brown Martel stood beside Carolyn Bennett, the Minister of Crown-Indigenous Relations and Northern Affairs, as she announced a historic “agreement in principle” for all Canadian children who were taken from their homes and had their identities taken from them in the Sixties Scoop.

“I have envisioned this day for so many years,” says Chief Martel, who filed her initial pleadings against the federal government on behalf of Ontario survivors in 2009. “It has been a very long journey, but we made it. Today, I am proud to say: Canada stepped into the light.”

The agreement will see Canada pay between $500 and 800 million in restitution to Indigenous children who lost their cultural identities after being removed from their families and communities and placed with non-Indigenous foster and adoptive families in Canada, the US, and Europe. Individuals will receive compensation in the range of $25,000 – $50,000, depending on the number of claimants who come forward. The costs for the four legal teams involved in the agreement will be paid for separately by the government, not out of the claimants’ award, and will be set at 15% of the minimum government payout.

The agreement is unique in establishing an endowment of at least $50 million for an Indigenous Healing Foundation—an outcome Chief Martel has championed for many years. The foundation will focus on providing culturally appropriate counselling and traditional healing services, while also carrying forward the memory and lessons of the Sixties Scoop for generations to come.

“We wanted something lasting to come out of this, something that will continue to help survivors and our children and grandchildren well into the future,” said Chief Martel. “The foundation is the soul of this victory.”

Notably, the foundation was not an outcome Chief Martel would have been able to achieve in the courtroom. Chief Brown’s Ontario case, the only certified class action case in Canada, won a significant victory in February 2017 when Justice Edward Belobaba ruled that the government was liable for harm experienced by Sixties Scoop survivors in Ontario. A compensation hearing was set to take place on October 11th. However, Chief Martel chose to adjourn that court date in order to further pan-Canadian agreement discussions, where a more comprehensive and innovative resolution was possible.

“It was important to me that we got recognition and justice, not just for some, but for as many people as possible,” Chief Martel notes.

Today’s agreement is not just unique for Canada; it sets a global precedent for responding to issues of cultural genocide.

“Never before in history has a nation recognized, in this way, children’s right to their cultural identities, and a government’s responsibility to do everything in its power to protect the cultural identity of children in its care,” explains Jeffery Wilson, the Canadian child rights lawyer who has been Chief Martel’s lead counsel on this case for 13 years.

“We have learned so much from Marcia,” says Wilson. “It’s humbling and inspiring to see her vision come to fruition today.”

 

Sixties Scoop Settlement Agreement FAQ

About the Settlement Announcement

Overview of the settlement agreement

On October 6, the Canadian Government announced that it has reached a pan-Canadian settlement with the survivors of the Sixties Scoop. The agreement will include restitution for individuals who lost their cultural identities after being removed from their families and communities and placed with non-Indigenous foster and adoptive families. The agreement will also establish a foundation to contribute to healing and systemic solutions for survivors.

Who is included in the settlement?

The settlement agreement includes “Indians” (per the Indian Act) and “Inuit” survivors of the Sixties Scoop across Canada, including those who lived on and off reserve, and who were removed from their homes and lost their cultural identities between 1951 and 1991.

What is the compensation and how will it be distributed?

The Government of Canada will pay between $500 and $800 million in restitution. At least $50 million of this sum will serve as the endowment for a new Indigenous Healing Foundation to be established this fall.

Up to a total of $750 million will be used for individual compensation, structured as follows:

  • If there are more than 20,000 claimants, each will receive $25,000 in compensation, to a maximum of $750 million.
  • If there are fewer than 20,000 claimants, each will receive $50,000 (maximum) in compensation, to a maximum of $500 million.
  • If there are remaining funds after individual compensation has been paid out, that money will be used to top up the foundation’s endowment.

For example:

  • If 25,000 survivors come forward, each will receive $25,000. In this case, the total individual compensation will be $625 million. The foundation would then receive top-up funding of the remainder of the $750 million, equalling $125 million.
  • If 8,000 survivors come forward, each will receive $50,000. In this case, the total individual compensation would be $400 million.  The foundation would then receive top-up funding of the remainder of the $500 million, equalling $100 million.

How will legal fees be paid?

Compensation for legal teams involved in the settlement will be paid separately by the government, and will not come out of the compensation package for survivors. The total amount paid to the four legal teams working on the agreement is set at 15% of the minimum government payout (equal to $75 million). This sum covers all past and future legal fees accrued by the legal teams in developing and executing the agreement. It is expected that work will continue to fulfill the agreement until at least August 2019.

About the Ontario Sixties Scoop Claim

History of the Case

  • In 2009, the Ontario Sixties Scoop survivors filed initial pleadings against the Government of Canada on behalf of the estimated 16,000 children involved in the scoop, with the hope that such a case would help this generation of Indigenous children.
  • In 2013, the case was certified by the Ontario Superior Court. This is the only Sixties Scoop case to be certified in Canada.
  • Over 8.5 years, the case was adjourned or delayed 16 times. There were 8 attempts by government to have the case thrown out of court.
  • On February 14, 2017 the Ontario Superior Court found the Government of Canada liable for harm endured by Sixties Scoop survivors in failing to protect their cultural identities.
  • A compensation hearing was set to take place on October 11, 2017. Chief Martel chose to adjourn this court date in order to further pan-Canadian agreement discussions.

Why settlement instead of pursuing a court decision?

Chief Martel chose to pursue a pan-Canadian settlement agreement for two key reasons:

  1. This settlement will expand the number of survivors that are eligible for compensation by increasing the geographic scope as well as by the time period for eligibility. The Ontario class action limited eligibility to survivors from Ontario who lived on-reserve from 1965-1984. The settlement broadens eligibility to include First Nations and Inuit survivors across Canada, including those who lived off-reserve, crown ward and (in some cases) temporary ward children, and those who lived in permanent care but were not adopted. It also broadens the period to include those “scooped” between 1951-1991.
  2. In addition to individual compensation, the settlement includes funds to establish a foundation that will contribute to a more systemic solution for survivors. This would not be possible through a court decision.

About Wilson Christen LLP.

Chief Martel is represented by the family law firm, Wilson Christen.  Founding partner, Jeffery Wilson, has being working with Chief Martel on the Ontario Sixties Scoop case for 13 years; his team has dedicated upwards of 13,000 person hours to the case to date.

As a demonstration of its commitment to healing and justice for Sixties Scoop survivors, Wilson Christen intends to donate $1,000,000 to the new foundation established by the pan-Canadian agreement. The firm hopes to lead by example.

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Minister of Indigenous Affairs to make 60’s Scoop announcement on Friday, October 6th, 2017 at 9:30 a.m. in the foyer of the House of Commons.

Stay tuned.

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Important Update on Our Case and October 11th

Right now, confidential discussions are taking place to attempt a Canada-wide settlement of the 60s Scoop. Chief Marcia Martel (Brown) believes these discussions may result in a resolution aligned with her vision, and the hopes of many survivors she has consulted within her community. She believes there is the strong potential, through these discussions, for achieving justice for all those who experienced harm. 

As a result, she has instructed her counsel to participate in these discussions with lawyers from different parts of Canada and Justice Michel Shore (the Federal Court designated mediator). In light of these discussions, Marcia has directed an adjournment of the October 11th compensation hearing in Toronto.

What Does This Mean?

The most important thing to understand is that even if there is no settlement, the Court will determine compensation payable to survivors. Justice Belobaba’s February 14, 2017 ruling assures this.

If, at any time, Marcia believes progress on settlement discussions is not being made in a satisfactory way, the compensation hearing before Justice Belobaba will immediately be rescheduled.

What is Being Discussed?

 These discussions, like all settlement discussions, are confidential. Marcia and her counsel, along with other clients and their counsel from other parts of Canada, are the only people party to the discussion with the Federal government, mediated by Justice Shore.

 What we can say is that Marcia would not be at the table if key elements of her vision were not part of the discussion.

When will we know more?

 While we don’t have a timeline we can share right now, we can say that Marcia—like all of us—is committed to a reasonably swift resolution. We want to take the time to get it right. But, as you all know, this case has dragged on for close to a decade, and seeing it resolved in a timely manner is what everyone wants.”

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Our Vision for Resolution

Have you watched Chief Martel’s vision statement?

View it here:  https://youtu.be/mxRwD5iMRG4

From the start of our action in February 2009, Representative Plaintiff Chief Marcia Martel (Brown) has urged respect, reconciliation, resolution. Two successive federal governments (under Harper and Trudeau) have attempted to delay our case and have our claim thrown out of court.  Despite all this, we have never given in and never given up.  We have persisted.

On February 14, 2017, the Honourable Justice Belobaba decided there was a valid claim and found that Canada had breached a duty of care to the 16,000 survivors of the Ontario Sixties’ Scoop.

Though in June Canada attempted, yet again, to delay and avoid accountability, the Court made clear that the finding of liability was not to be re-opened. The case would proceed to the financial compensation hearing, scheduled for October 11, 12, & 13 in Toronto.

Since we began the case in 2009, other actions have been commenced (though ours remains the only certified case in Canada and the only one to have established liability in the court).  The lawyers for the claimants in cases in other provinces are meeting with Federal Court Justice Michel Shore in the weeks ahead to attempt to work out a settlement, under order of that Court. They have invited our lawyers to participate in a pan-Canadian resolution. Chief Martel has directed our lawyers to attend.

Here are the most important things for you to know about these discussions:

  • This is an important opportunity to impart our vision for reconciliation. Chief Martel’s video statement outlines that vision very clearly;
  • The discussions are confidential and we cannot talk about what gets discussed until and unless all parties agree;
  • We are attending this meeting on our own terms. Our case is not part of the federal court actions and therefore, no ruling or direction in that court can be made against our claim in Ontario;
  • Our lawyers can withdraw from these talks at any time and, very importantly, nothing done or said there can be used to delay or interfere with our case for proper financial compensation;
  • The hearings scheduled for October 11, 12th, and 13th are still on. This will not change until and unless a settlement offer that includes fair and proper financial compensation for Ontario survivors is put forward.

Some of us, we know, have experienced anguish in all of the attempts by the federal government to deny or delay this case. Time and time again we heard the government say-one-thing-do-another. The healing process is profoundly challenging for those whose childhood was lost.

We go into these talks with our eyes open.  Hopeful, not naïve.  Receptive, not vulnerable. Respectful, not weak. We will see. We are watching.

Thank you.

Ontario Sixties Scoop Committee

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