02/01/2017 08:59 EST | Updated 02/02/2018 00:12 EST

Feds scrap plan to grill aging native elders as '60s Scoop suit nears ruling

TORONTO — A class-action lawsuit over Canada's obligation to thousands of children who lost their indigenous identities during the so-called '60s Scoop should be in a judge's hands by the end of the week following the last-minute cancellation of a hearing he had requested for Thursday.

Two former aboriginal leaders were expected to tell the court about the advice they would have given the government — had they been asked — on helping on-reserve children retain their cultural identities after placement in non-indigenous homes.

Instead, government lawyers this week informed Superior Court Justice Edward Belobaba that they now had no plans to cross-examine the aging elders. They also indicated they had no further evidence to tender, documents show.

In response, Belobaba scrapped the hearing he had ordered in December and instead asked for brief written submissions to be filed before the weekend. He also said he expected to announce a date for his ruling next week.

At issue is a request by the plaintiffs for summary judgment in their $1.3-billion lawsuit filed in 2009, and Ottawa's counter-application that the action be tossed. The suit alleges about 16,000 at-risk indigenous children in Ontario suffered a devastating loss of identity when they were placed in non-aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement.

The plaintiffs maintain the government violated the agreement by failing to consult with the various Indian bands about the child-welfare program — an assertion Belobaba appeared to have accepted.

At a hearing in December, in which the government argued it had no legal obligation toward the children, Belobaba ordered Thursday's now cancelled mini-hearing on the narrow question of what bands might have told Ottawa.

One of the proposed witnesses, Wilmer Nadjiwon, 95, was chief of Chippewas Nawash Nation for 14 years starting in 1964, when police and child-welfare authorities removed aboriginal children from their community.

"What we would have done is tell the federal minister of Indian affairs that this is not the way to respect our people, not the way to preserve our identity and honour our special relationship with the Crown," Nadjiwon says in an affidavit.

"And if our children are forced to leave, we need to know they will return to the reserve because they have family here who love them ... that they have a special place in our community ... but we did not have the opportunity to say these things."

The federal government does admit the children may have suffered harm but insists it is not liable because it had no "duty of care" toward them, that cultural identity is a fuzzy concept at best, and that it was acting with good intentions within the prevailing norms of the day.

"To the extent the public is led to believe that the Liberal government is embracing First Nations towards reconciliation, the life of this case suggests the contrary," Jeffery Wilson, the plaintiffs' lawyer, said Wednesday.

The plaintiffs received some high-profile support from philosopher-author and activist John Ralston Saul this week. In a statement obtained by The Canadian Press, Saul decried what he called the government's "cynical" argument that it could not have foreseen the cultural confusion the children suffered.

"The very idea that the Crown would argue a lack of foresight is itself a form of evil," Saul says. "Given the history of residential schools and children forcibly being taken from their families, it is simply inconceivable that officers of the Crown could claim in court that they could not imagine the outcome."

The lead plaintiff, Marcia Brown Martel, 53, a member of the Temagami First Nation near Kirkland Lake, Ont., was adopted as a nine-year-old by a non-aboriginal couple in 1972. She later discovered the Canadian government had declared her original identity dead.

If Belobaba sides with the plaintiffs, the next step would be to determine what damages they deserve.