Response to Miscalculated Risks
Justice for None:
The Legacy of
Editorial Board, Calgary
F. G. Vaughn Marshall, Attorney at Law
March 17, 2004
The Herald's opinion seems to
be based on its estimation that the Federal Government gave away too much by
not precluding residential school survivors who choose to resolve their abuse
claims in the
Alternative Dispute Resolution
program to compensate victims of
residential school abuse, announced by Minister Ralph Goodale on November 6,
2003, from later suing the Government in court for damages caused to them by
the destruction of their language and culture. In the Herald's view, by
merely allowing residential school survivors the opportunity of subsequently
attempting to convince a Court that they are also entitled to compensation
arising from the destruction of their language and culture, the Federal
Government has exposed Canadians to too high a tax liability.
Until the mid 1970s, every
Aboriginal child was forced to attend a residential school, usually for six
to ten years. Aboriginal children lived in these total institutions for ten
months a year with little contact with their own families and during this
time were exposed to the damaging atmosphere of an institutionally mandated
racist system of assimilation which had been diabolically formulated to drive
the "Indian" out of every Aboriginal child. For as long as they were confined
in these "schools", the beliefs, language and culture of Aboriginal children
were systematically attacked, vilified and demonized on virtually a daily
In my view, the Federal
Government doesn't go far enough in its program and the fundamental injustice
of Canada's ADR program is that it will not directly compensate Aboriginal
people for the damage caused by the severe attack on their culture and
language, the failure to provide Aboriginal children with a useful education
as promised by the treaties, and the systemic neglect Aboriginal Canadians
endured throughout Canada's century long residential school system.
As a former teacher of
underprivileged children, I quickly became aware of the critical role that
cultural signposts play in the absorption of meaning from what is taught in
schools. Our cultural underpinnings provide the mind-map which every person
requires if formal education is to take root in the hearts and minds of
children. Furthermore, solid cultural moorings are important if children are
to have a chance of successfully navigating their way in the society into
which they are supposedly being prepared to participate.
The residential school system
was explicitly designed to annihilate Aboriginal culture in
Trapped as they were between
two cultures, residential school survivors found life difficult in their own
communities as well as in mainstream Canadian society. Their residential
school experience failed to prepare generations of Aboriginal Canadians to
participate meaningfully in the economic life of either system. The impact on
the lives of Aboriginal people has been severe, life long and seemingly
irreversible. All of this has been exacerbated by the paternalistic system of
First Nations governance in Canada, the deficiencies of which the Federal
Government is fully aware, which makes most Aboriginal people dependent for
their subsistence on the vagaries of the administration by many First Nations
governing bodies of funding provided by Ottawa. The residential school system
knocked the feet out from under Canada's Aboriginal people and the dependency
created by the Federal Department of Indian Affairs has made it difficult for
many of them to get back up again.
A number of aggravating
factors respecting the creation, development, management and operation of the
residential school system were particularly odious and destructive.
The system was deliberately aimed at children,
the most vulnerable and least powerful of the most underprivileged and
marginalized group in Canada, with the full knowledge that aboriginal
children would be the most susceptible victims of the racist agenda of the
government and churches to eradicate aboriginal language, culture and
spirituality from the face of Canada.
Aboriginal children in residential schools
suffered an especially damaging form of abuse. Denied their language and
culture and isolated from their families, they were deprived of emotional and
other support that could have assisted them in trying to cope in these
The prohibition against children speaking their
mother tongue was generally destructive to their sense of identity and
particularly damaging for aboriginal people whose oral cultures use language
as the medium to create, sustain and transmit their world view from
generation to generation.
Removing the children from their families,
preventing them from speaking their language and denying them occasions to
express their culture through language and associated rituals was a powerful
attack on the personal, cultural and spiritual identity of all aboriginal
The damaging effect of the suppression of
language and culture multiplied with each generation and the loss that ensued
typically led to psychological disorientation and spiritual crises among
aboriginal people throughout their lives.
For a century, generations of
Aboriginal Canadians were subjected to this corrosive system of assimilation
and it devastated their communities. The tragic legacy of residential schools
is sadly visible to this day. Any ordinary Canadian who has driven through a
First Nations reservation and not felt ashamed that our Government and
Churches contributed to this regrettable state, doesn't have a heart. Nobel
Laureate Archbishop Desmond Tutu spoke at the University of Alberta's
International Conference on Human Rights in Edmonton on November 28, 1998.
When a Canadian speaker criticised the South African Government's approach to
reparations for apartheid, Tutu rightly retorted that its mistreatment of its
own Aboriginal People is Canada's national shame and Canada has little room
to criticize other nations such as South Africa until it does something to
relieve the sorry state of affairs of its own Aboriginal communities.
In 1998, the Federal Justice
Minister requested the Law Commission of Canada to enquire into appropriate
processes for dealing with institutional child abuse. On March 13, 2000, the
Commission delivered its report to Anne McLellan. The report,
Institutional Child Abuse - Restoring
Dignity: Responding to Child Abuse in Canadian Institutions
a special chapter to dealing with the experience of Aboriginal Children in
Canada's residential school system, from which much of the following is
Commission's review of the growing body of information on residential schools
for Aboriginal children led it to three conclusions. Firstly, racial
attitudes about the backwardness and inferiority of Aboriginal peoples
fuelled the maltreatment and abuse experienced by children at residential
schools. Sadly, these attitudes have not been entirely overcome. Secondly,
the affronts to the collective dignity, self-respect and identity of
Aboriginal peoples that occurred in residential schools are closely linked to
the nature and scope of the redress individuals and communities now seek.
Thirdly, there remains today a significant need for public education. All
Canadians must be provided the opportunity to understand the destructive
influence of the residential school system and to appreciate why the Federal
Government is morally obliged to take significant steps to help survivors and
of the tasks of the Law Commission in responding to the Justice Minister's
request, was to investigate and evaluate processes of redress for those who
suffered abuse in residential schools, as the Commission believed that it was
fundamentally important to redress such wrongs. The Commission also believed
that the residential school system itself produced harm for former students,
and that the harm flowed outwards to their family members and the communities
in which they live. This is one of the enduring legacies of the residential
school system, they believed, and that whichever approaches to redress are
contemplated must have the capacity to deal appropriately with a broader
range of harms and a broader range of persons suffering these harms.
living in total institutions such as residential schools were potentially
subject to many different kinds of harms, the Commission noted. These include
physical and sexual abuse, psychological and emotional abuse, neglect, the
failure to provide needed medication or treatment, the deprivation of an
adequate education and the suppression of their language, religion or
culture. While physical and sexual abuse are currently recognised in law as
giving the person harmed a right to sue for damages, some of the other kinds
of abuse that was suffered are not so clearly viewed as legally compensable.
The Commission noted, however, that the scope of a redress program need not
be restricted to providing compensation and benefits only for those harms
that are currently recognised by the civil law. Indeed, one of the advantages
of a redress program is that it can be designed to address a wider variety of
harms than those covered by the civil court system. A redress program can be
tailored to meet the needs of anyone who was seriously harmed, in any manner,
while residing at an institution such as a residential school.
Commission believed that, in general, redress programs should take an
expansive view of the harms for which compensation will be offered. Taking a
holistic approach can be an especially important consideration where the
purpose of, or the practices within an institution constituted what is now
understood to be cultural abuse.
programs usually specify the type of abuse for which financial compensation
is being provided. Eligibility for a monetary award has, in the past, often
been limited to those who suffered physical or sexual abuse, or both, but
there is no necessary reason why this should continue to be the case,
especially since courts themselves are beginning to recognise emotional and
psychological harm as compensable. Damage to Aboriginal children from their
ten year confinement in a residential school surely caused such harm.
Commission, pointing out that a redress system should offer a wider range of
benefits than those available through the courts or administrative tribunals,
recommended as the first of the necessary components of a redress
system for institutional abuse, that it
should offer compensation and benefits that respond to the full range
of survivors' needs. The Commission specifically noted that the following
considerations ought to be taken into account in the implementation of such a
institutions where physical or sexual abuse was pervasive, residents may have
suffered psychological and emotional damage as a result, even if they
themselves were not victims of such abuse.
institutions where the culture of the resident population was consistently
undermined, such as residential schools for Aboriginal children, residents
may have suffered long-term harms as a result.
of an adequate education should also be considered as a basis for redress.
the Commission recommended compensation for damage to culture as well as for
the deprivation of a proper education,
the life long negative
economic impact of which on every Aboriginal person institutionalized in a
Residential School can readily be calculated under current legal theories of
the Federal Minister
of Justice included neither in Canada's ADR program. The Government's
decision to exclude such redress from its ADR program, ignoring as it does
such an important recommendation from the Law Commission of Canada, one of
this country's most respected public institutions, heaps injustice upon the
original injustice of the residential school system and constitutes a
callous, dangerous and short-sighted disregard for the future of Aboriginal
relations and First Nations governance over the next century. Aboriginal
Canadians were ignored and neglected throughout the 20
and are unlikely to stand for being ignored and neglected again.
In my opinion, any attempt at
redress for the damage caused by Canada's residential school system must
recognize the destructive impact of this century long assault on the very
essence of Aboriginal Canadians which will take many more generations to heal.
Its failure to address what caused the most pervasive damage to Aboriginal
Canadians and their communities renders Canada's ADR program shamelessly
unjust. Refusing redress for the damages caused by this frontal attack on
Aboriginal language and culture will cost Canadians more in the long run.
Healthy communities are more economically productive and Aboriginal
communities are entitled to the opportunity to become so. The Government of
Canada inflicted this gaping wound on Aboriginal communities and bears the
responsibility to do the right thing. Anyway, it is in Canada's economic
interest to act justly and aid in the healing of the communities it once
attempted to destroy so that First Nations can at last have the chance to
become vibrant, economically self sufficient communities.
Finally, even if the Herald
was correct that such claims would not succeed in court, which I dispute,
Canada is a world leader in human rights and should ultimately act justly and
do the right thing.
person who attended a residential school was exposed to the toxic atmosphere
of this government mandated system of assimilation which attacked the core
and being of every one of them. Even if Canada could successfully raise
technical arguments to defeat these claims in court, that would merely heap
further injustice on our First Nations people.
Aboriginal communities are at
a turning point and await the answer of mainstream Canadians.
"Will our Canadian brothers and sisters
see that correcting this fundamental evil of the residential school system is
necessary if our Aboriginal communities are to heal so that at long last we
can move beyond this historical wrong and participate more fully in the life
of this great country"
, they ask. My fellow Canadians, I pray the answer
In Monday's Print
Edition of the Calgary Herald Vaughn Marshall makes the case for compensating
cultural genocide. Be sure to see his
Herald on March 22, 2004.
Calgary Herald 2004