In the wake of the Indian Residential Schools Settlement Agreement, which began in the courts and went on to transform the national conversation about Canada's colonial history, Indigenous peoples are turning more and more to class actions to seek redress for historical wrongs.
First, a little background: the Indian Residential Schools Settlement Agreement, or the IRSSA as it is often called, arose from a class action lawsuit against the Government of Canada and various religions organizations. Rather than take the matter to court, the government and the churches negotiated a settlement with the former residential school students who had launched the lawsuit. The settlement was approved by all parties in May 2006.
The result was a 3-part program designed to help heal the damage from residential schools by collecting and preserving former students' stories, as well as providing survivors with compensation for the trauma of being separated from their families and, in some cases, experiencing severe abuse. Health Canada also offers free counselling resources to former students and their families.
Implementing the IRSSA has come with its share of problems, but it has also brought the history of residential schools into the light and given former students new opportunities to talk about and heal from their experiences.
However, many people were excluded from the benefits of the IRSSA, and some hope to gain recognition by bringing class action lawsuits of their own. Class actions have been filed by former day scholars, who were required to attend residential schools but did not live there, as well as people who were sent to federal day schools, where many were abused and were not allowed to speak their languages or practise their cultures.
A lesser-known phenomenon was the "Sixties Scoop". Between the 1960s and 1990s, tens of thousands of Indigenous children were taken from their homes by social services agencies, and adopted by non-Indigenous families. Like the residential school students, these children lost their connections with their families, communities and cultures. They were also denied their Indigenous identities and the opportunity to exercise their rights as Indigenous persons.
Class action lawsuits concerning the Sixties Scoop have been filed against the federal government in Ontario, Manitoba, Saskatchewan, Alberta and British Columbia, and are currently at various stages of the proceedings. The Ontario plaintiffs had their first day of hearings in Toronto on 23 August and will be back before the Court in December.
There are several reasons why class actions have become so popular for this type of claim. First, they allow a large number of claims to be dealt with in one proceeding, which is much less expensive than several individual lawsuits. Class actions also allow plaintiffs to share the costs and risks, which is important since these claims tend to be novel and there is no guarantee of success. They ensure consistency – unlike individual litigation, where settlements are often confidential and one person could get a much better (or worse) deal than their neighbour despite having a similar claim. Finally, class actions are especially useful in the Indigenous context because some important Indigenous claims – such as those based on Aboriginal rights under Section 35 of The Constitution Act or the government's special fiduciary duty to Indigenous peoples – can only be claimed by groups, not by individuals.
The best outcome in these situations is usually a negotiated settlement. It's much less expensive than lengthy court proceedings, and allows the parties to come up with creative solutions that address their real needs and desires. As we have seen with the IRSSA, the chance to tell one's story and be heard can be far more powerful than receiving a cheque in the mail.
If the Sixties Scoop plaintiffs can get the government to the negotiating table, we might see a series of provincial settlements rather than one national settlement like the IRSSA. There are some important differences between the provincial claims, since the removal of children was often performed by provincial agencies and the circumstances differed from province to province. In Ontario, unlike the other provinces, the plaintiffs are not challenging the removal of children or their placement with non-Aboriginal families. Instead, the basis of the Ontario claim is that Canada failed to fulfil its duty to help the children maintain their traditions, customs and benefits as Indigenous persons.
Whether these cases are settled or continue through the courts, their impact will be felt. Class actions have become a powerful legal tool for Indigenous peoples, and their use shows no sign of slowing down.