The forgotten scandal
lavish millions on lawyers while fleecing residential school victims
If justice ruled the land,
the sponsorship scandal wouldn't be the
million-dollar boondoggle copping airtime and howls of outrage. There'd be room
for another moral and financial shocker in the election-weary landscape: the
feds' nasty approach to Indian residential school claims.
Advocates for the 87,000
surviving former students are asking why, after a decade of mind-numbing
revelations, and a government apology to boot, the government is content to
redirect millions of bucks to the wrong people.
Why, they want to know,
allowing lawyers to soak up millions of
taxpayer dollars fighting victims of rape, assault and cultural devastation?
And why aren't they leaping to adopt a Canadian Bar Association and Assembly of
First Nations proposal to stop the contesting and start the healing?
The plan to settle cash on
former residents, not
just those victimized by pedophiles, was adopted in February by Parliament's
all-party Standing Committee on Aboriginal Affairs and Northern Development.
But it's a long way from there to a Department of Justice thumbs-up.
Urging the Committee to
accept the proposal, AFN leader Phil Fontaine said, "Canada can continue
to litigate. It can continue to pay huge court costs and hundreds of millions
in legal fees while maintaining an adversarial relationship with the First
Nations. Or it can act
The government, he said,
should do the right thing
quick thing; an estimated five survivors die each day. "There [were] once
150,000 former students," he said, "but many have died over the years
without justice and reconciliation 20,000 since 1991. The rest of us are
While there is no total
available to tell us how much money government lawyers and administrators have
eaten up fighting some of the poorest members of the country, the obtainable
figures are cause for alarm.
A report prepared by the
Treasury Board reveals that in 2003-04 the government gave only $4.8 million to
survivors while spending $68.3 million on operating expenditures, $22 million
of that on Department of Justice lawyers. Some estimate that 27 per cent of the
Department of Justice's civil litigation department is devoted to defending
against residential school claims.
While 2,000 cases have
been settled during the last decade, with victims receiving $80 million, there
are 11,000 suits pending, including five class actions. Then there are the
1,308 claims launched under the government's non-judicial resolutions process.
But for all the billions of public dollars destined to be
up by court time and administration, the aboriginal community is experiencing
nothing like a sense of finality.
As Raymond Mason, chair of
a society of survivors called Spirit Wind, told the standing committee
hearings, the feds' approach is "seriously flawed and deliberately
attempts to avoid responsibility and limit liability. They must not be waiting
until all of us are dead."
The committee took a close
look at the government's non-judicial process, called the Alternative Dispute
Resolution Process (ADR), which was established in November 2003 after four
years of argument with Native groups and the churches that ran the schools. The
idea was to do an end run around the mountain of litigation.
Supporters of the ADR
praise the low-key process, which allows spiritual ceremonies and dispenses
with cross-examinations by lawyers. It sounds cozy until you realize that the
ADR only extends this sensitivity to survivors who could otherwise, at great
expense to the government, win their cases in the courts.
The minimum injury deemed
to require an award over $3,500 is sexual abuse or "physical abuse that
in physical injuries that lasted more than six
weeks." Not surprisingly, the standing committee found that the ADR
process "provides grossly inadequate compensation when it grudgingly does
so." It went on to call for an audit of its finances and to recommend that
the process be canned.
Evidence brought before
the committee showed that the Scrooge approach is seriously backfiring and is
driving survivors back to the courts. Last year, two elderly women from
Manitoba began the ADR process with a willingness to accept small awards as a
token apology for two generations of "constant physical, emotional,
psychological and verbal abuse."
Flora Merrick was locked up at school with her sister after their father tried
to take them to their mother's funeral. When released, Merrick tried to run
away: "I was caught in the bush by teachers and strapped so severely that
my arms were black and blue for several weeks."
Grace Daniels, described an extraordinary punishment she suffered a generation
later: "I was taken into a private room, told to take my clothes off, and
was beaten severely all over my body with a strap for about a half-hour."
After their ADR hearings,
an adjudicator consulted a chart to evaluate whether a survivor's experience
"went beyond the standards of the day for discipline." The government
appealed a $1,500 award to Merrick because her experience did not fit its rigid
definition of "wrongful confinement." Daniels declined her $3,000 offer
of settlement " because the ADR does not reflect the suffering we
underwent as prisoners of the system." Now the two have joined the Baxter
A key determinant of
settlements under the ADR process is determining the culture of discipline
decades ago. Calgary social justice lawyer Vaughn Marshall tartly points out,
"Aboriginal parents did not beat their children the way white teachers in
residential schools did. How about
of the day?"
But supporters of the ADR
process say many of the 1,300 applicants appreciate the low-key non-judicial
hearings and happily take their settlements. Chief ADR adjudicator Ted Hughes,
a former Saskatchewan judge, says, "I realize there has been considerable
negativity, but I haven't any doubt this is serving a need. Many people felt it
was a satisfactory experience to be able to tell their story in a relaxed
atmosphere in front of an adjudicator trained to be sensitive."
Still, the gigantic Baxter
class action has recruited more than four times as many survivors as the ADR
and plans to sue for compensation for all 87,000 Native former students in
Canada. It seeks damages of over $12 billion. Another suit, known as the Cloud
class action, is waiting to see if the supreme court will hear the government's
final appeal of its certification.
of Thomson, Rogers, the firm spearheading the Baxter
case: "Our clients have told me time and time again they want to be
automatically compensated for their experience. We've been very critical of the
government's ADR program." The intriguing thing about the class actions
and the AFN proposal both have essentially the same goal is the way even
those who suffered particularly horrible atrocities want everyone to be
compensated. As Alfred Beaver from
Nation in Alberta, who was cut, burned, forced to crawl through excrement and
repeatedly raped, made clear to the standing committee, "Everyone who was
registered as a resident became a victim in one way or another. Everyone should
be compensated." One of the reasons former students are choosing class
actions is that these pursue compensation for loss of language, culture and
family life. "Not all residential schools were as bad as the worst of
them," says Paul
consultant once hired by the ADR, "but all residential school students
were torn from their families and placed in institutions. You can imagine what
a community is like that has lost its children."
The AFN and Canadian Bar
Association plan, which was developed by a stellar list of experts including
nine law professors, two judges, a judge from the International Criminal
Tribunal for the Former Yugoslavia, the director of the Irish Center for Human
Rights, a member of the Sierra Leone Truth Commission and an activist who led
the Japanese Canadian redress movement, advocates the awarding of a relatively
modest amount to every former student.
The proposal calls for a
$10,000 base sum plus $3,000 for every year in attendance, an interesting
comparison to the $21,000 per person won by the Japanese Canadians subject to
internment or relocation during the second world war. Native survivors
receiving the recompense would still be free to sue for sexual and extreme
physical abuse, but advocates of the proposal feel that such a
"restorative" payment, if made in a spirit of generosity and
conciliation, would forestall many lawsuits.
Formulators of the plan
reckon the government could save a potential two and half billion, considering
the massive suits down the road. But the feds don't seem to be jumping at this
opportunity to right a historic wrong and stop the bonanza for lawyers. Alex
Swan, from Anne
, now minister of public safety, is still on this
file, left over from her Department of Justice days), speaks cautiously, saying
the government is "working with the AFN to cost out and weigh the
realities of implementing some if not all of their proposals."
Shawn Tupper, director
general of operations, Indian Residential Schools Resolution Canada, raises an
issue many in aboriginal circles believe to be bogus. "We considered that
previously, and there are some difficulties in terms of determining who would
be eligible. One of those is that we are dealing with cases that are old. And
oftentimes the records are very poor."
But many believe that
without a settlement for all, Canada can never really come to terms with this
malevolent corner of its psyche. Says
"All that abuse was tolerated it says something about the kind of
society that would allow this. If the government gave a portion of money to
every person, that would be closure."