Sixties Scoop survivors and supporters gather for a demonstration at a Toronto courthouse on Aug. 23, 2016. (Photo: Michelle Siu/CP)The 2009 lawsuit seeks $1.3 billion on behalf of about 16,000 indigenous children in Ontario who claim they were harmed by being placed in non-aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement. While the arguments are legally complex, one key element of the plaintiffs' claim is that the government never consulted Indian bands about the child-welfare program as required by the 1965 agreement — a point seized on by Ontario Superior Court Justice Edward Belobaba. The agreement, Belobaba said, appeared to have "no ambiguity" as to the consultation requirement. "The evidence is overwhelming that not once did the federal government consult with any Indian band," Belobaba said. "They had to consult with Indian bands and they didn't."
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'Throw yourself back to 1965'In addition, the federal government was stymied by confidentiality provisions that cloaked adoptions, preventing disclosure of the identities of a child's biological parents, Young said. "You must throw yourself back to 1965 and interpret it," Young said. "That interpretive exercise is affected by the standard of care of the time." The lead plaintiff, Marcia Brown Martel, says it was clear Canada knew about the anger and frustration about what was happening to the children after they placed with non-indigenous families. Brown Martel, 53, a member of the Temagami First Nation near Kirkland Lake, Ont., was adopted by a non-aboriginal couple in 1972 at age nine. She later discovered the Canadian government had declared her original identity dead. "Canada took no steps to assist the adopted child post-adoption," Brown Martel says in her court filings. Young also suggested there were questions about whether the court even has jurisdiction to decide the case. The hearing, which began in August, continues Friday.