Sask. man worried Métis and non-status Indian Sixties Scoop survivors will have little say in class action

WARNING: This story contains distressing details.

One of the plaintiffs in a statement of claim filed against the federal government on behalf of Métis and non-status Indian Sixties Scoop survivors in Canada says he is "very sad" that he felt forced to drop his legal challenge.

The Sixties Scoop refers to the Canadian practice — from the early 1950s until the early 1990s — of taking children from Indigenous families and placing them for adoption with non-Indigenous parents. Many of the affected children lost their Indigenous identity and suffered mentally, emotionally, spiritually and physically.

Robert Doucette, a Saskatchewan man and a Métis Sixties Scoop survivor, was one of the plaintiffs in a lawsuit filed in January 2018, along with with his sisters Geraldine Shier Laliberte and Eileen Rheindel Laliberte.

It was the first of five statements of claim filed against Ottawa on the matter that year.

Federal court forced to choose between overlapping claims

In 2019, after a "carriage contest," Justice Michael L. Phelan decided that plaintiff Brian Day and Toronto-based law firms Koskie Minsky LLP and Paliare Roland Rosenberg Rothstein LLP could proceed as representatives of Métis and non-status Indians in Canada in a proposed national class action.

That meant overlapping claims, brought forward by a consortium of three sets of plaintiffs represented by five law firms, were stayed. Doucette's lawsuit was one of them.

The consortium had asked for Day's claim — the last lawsuit to be launched on the issue — to be stayed. 

It was the first ever contested carriage order issued by the Federal Court of Canada.

Justice Phelan's decision was upheld by the Federal Court of Appeal in 2020 after it was challenged by the consortium.

In his ruling, Phelan referenced "bad blood" between some of the law firms involved in the competing claims, arising from their experience with each other in earlier Sixties Scoop litigation involving status Indians and Inuit survivors.

The Federal Court approved an $875-million settlement in that separate class action in 2018. It included $750 million for the estimated 20,000 status Indian and Inuit survivors and $50 million for a foundation.

Phelan said the usual practice is for all plaintiffs' counsel to work out some form of joint venture on the lead class action they consider best to advance.

This past June, the prevailing claim for Métis and non-status Indian survivors was certified as a national class action and survivors were given until Nov. 3 to opt out of it.

Doucette said that while his statement of claim against the provincial government continues, he and his sisters have dropped their lawsuit against the federal government — a requirement if they didn't plan to opt out of the national class action.

"We're very sad about that. But we know that these class actions are very costly," he said.

"And when you've got small law firms that don't have millions and millions of dollars to fight these battles, that's where it would have been better for all of the lawyers to work together on all of this and share everything."

Worries survivors will have less say

Doucette said there are a lot of Métis and non-status people that are not happy about this, but there's nothing they can do about it.

"I just think we could have been that much closer to resolving this whole lawsuit if we didn't have to go through this whole carriage battle thing," he said. "I just wish that all of the law firms would work together rather than fight it out in Federal Court.

"It just feels like we're getting revictimized again, because now our say in all of this has been stunted."

Doucette said that in the other Sixties Scoop class action for status Indian and Inuit survivors, there were several law firms representing their clients — and all of the law firms received compensation for the work they did on behalf of their clients.

"Their clients had a direct input into what was going on. We won't have any say in any of this," he said. "The only time that we're ever going to have any say over this is if there is a hearing to hear what everybody has to say to certify any agreement."

Based on what Doucette witnessed at a 2018 court hearing in Saskatoon to approve the previous Sixties Scoop class action settlement, he said survivors might not get much time to speak.

"We had three minutes to say what we thought about the agreement, and we were chastised by the judge when we tried to speak outside of the agreement," he said.

Doucette, who was taken from his family and placed in foster care in 1962 when he was about six months old, said none of this would be happening right now if the Liberal government would have included Métis and non-status Indians in an overall settlement.

"But now we're all still feeling revictimized," he said.

Lead plaintiff in class action replaced by two other survivors

In his ruling to let the Day action proceed, the Federal Court judge said factors in its favour included the experience and focus its counsel have toward the non-status Indian community.

The consortium was "Métis focused" and had not advanced a case for their representation of the non-status Indian component of the litigation, Phelan said.

Phelan also called Day, an Ontario man who was taken from his Métis family when he was four years old, "a textbook claimant and a mirror for both Indigenous components of the litigation," despite a lack of community connections.

The judge said Day reflected the type of circumstances and damage that is common to both the Métis and non-status Indian group at the more severe end of the damage spectrum.

Phelan also called the representative quality of a proposed plaintiff "a critical factor."

This past January, Day was removed as the lead plaintiff and was replaced by Sandra Lukowich and Shannon Varley, both of whom were born in Prince Albert in the 1960s and taken from their mothers by child welfare workers.

Doucette, who is now officially a class member, said he will be sending a letter or email to Koskie Minsky asking the firm to explain why Day was dropped.

"I would really like to know what happened. I don't know why that happened," Doucette said.

Class counsel responds

CBC News asked to interview representatives of Koskie Minsky LLP and Paliare Roland Rosenberg Rothstein LLP, the law firms advancing the national class action, but both declined.

In an emailed statement, a representative of Koskie Minsky said the action is at its early stages.

The next step is for counsel to agree on a schedule, including a trial date in the Federal Court, the statement said.

"Once that step has been concluded, we will have a further comment for the media," it said.

CBC was unable to ask the two firms about what input class members would have in the process. 

However, the Koskie Minsky website includes a section where class members can view developments, news releases, reports and documents related to the class action, as well as sign up for emailed updates.

A toll-free number and an email address are listed for anyone wanting further information on the claim.

'I feel like I'm a nobody'

Lukowich, one of the new lead plaintiffs, said she was raised in a great family after her adoption.

She doesn't know why Day is no longer the lead plaintiff, but was told that he had dropped out.

When asked what she would say to the survivors who wonder what kind of say they will have in resolving the class action, Lukowich said it would be wonderful if the government could sit down with every survivor and ask what they needed to feel whole.

"Some people might not even want compensation," she said. "Some people might just want something to recognize who they are. It's very important to heal from this.

"But you have to hear what the people want individually. I know it's a long process, but it's the right process."

Lukowich said Métis and non-status Indian survivors of the Sixties Scoop should have the same rights as other survivors.

"Because we're lost," she said. "I feel like I'm a nobody. I'm kind of in between, right? And I'm sure others feel the same way.

"I don't know if the government will ever, ever in my lifetime resolve this. Because I believe there's too many of us and they can't afford it."

Questions about being excluded from first settlement

Bobby Woods, a Métis Sixties Scoop survivor from Saskatchewan, said he and nine siblings were apprehended in Buffalo Narrows, Sask., by social services workers around 1960 when he was seven years old and then placed in different homes in the Prince Albert area.

Woods said it's difficult to determine why Métis and non-status Indian Sixties Scoop survivors are still waiting for a settlement after status Indian and Inuit survivors received one.

"I wonder when we're going to get recognized for anything," he said.

Woods said his wife and his children are all First Nations and they have family members that are a lot younger than him that were in foster homes for a couple of years.

"As soon as they applied to get recognized for it, they were sent compensation," he said.

He said people that were once considered Métis have now regained their First Nation status. And as soon as they did that, they got compensated, he said.

"There's nothing wrong with that," he said. "But I think whatever happens should be fair and Métis people should be recognized. We should be treated equally."

In 2018, then-Crown-Indigenous Relations Minister Carolyn Bennett pledged a separate settlement for Métis and non-status Indigenous survivors.

A spokesperson for Crown-Indigenous Relations and Northern Affairs Canada has said the Sixties Scoop settlement agreement was "only the first step" to address the harm done by that system.

"We know that there are other claims that remain unresolved, including those of the Métis and non-status First Nations, and we are working with our partners toward a fair and lasting resolution for all survivors," an emailed statement said.

Support is available for anyone affected by the lingering effects of residential school and those who are triggered by the latest reports.

A national Indian Residential School Crisis Line has been set up to provide support for residential school survivors and others affected. People can access emotional and crisis referral services by calling the 24-hour national crisis line: 1-866-925-4419.

Do you have information about unmarked graves, children who never came home or residential school staff and operations? Email your tips to CBC's new Indigenous-led team investigating residential schools: [email protected] or call toll-free 1-833-824-0800.