Less than two months after it announced an historic deal with the
Anglican Church of Canada -- pledging co-operation in resolving
Indian residential school claims -- the federal government has
launched legal action to overturn the Church's most important
residential school court victory to date.
The government and lawyers for former students of native schools
have filed notices to appeal a sweeping ruling, made in October by
Justice T.F. McMahon of the Alberta Court of Queen's Bench.
The judge dismissed almost all abuse claims against the Anglican
Church by former students of residential schools in Alberta. He said
because the schools were operated or supervised by the Missionary
Society of the Anglican Church -- and not by the Church itself --
then only the society, a separate corporation without significant
assets, could be held liable.
Although the claimants are still free to sue the government,
which owned the schools, the judgment prevents hundreds from also
seeking compensation from the General Synod of the Anglican Church,
the national Anglican body, or two Alberta dioceses.
The ruling was hailed as a victory for the Church, which has
spent millions of dollars in recent years defending itself against
residential school claims across Canada.
Archdeacon Barry Foster, executive officer of the Diocese of
Calgary, said a different decision from the court "would have meant
three, four or five more years of litigation. Going to trial is
expensive and we would have been looking at an increasing amount of
our operating budget going to litigation costs."
The Alberta decision may have also strengthened the Church's
position in its long negotiations with the federal government, in
which both parties were searching for ways to share the burden of
residential school claims. In mid-November the two groups finally
agreed to co-operate on the issue.
Leaders for the Anglican Church agreed to pay 30% of all
compensation awarded in validated claims against the government and
the Church. In return, Ottawa would cap the Church's liabilities at
$25-million and halt the practice of dragging the Church into any
lawsuits in which it was not already named.
Archdeacon Jim Boyles of the Anglican General Synod said the deal
allows the Church to "generally leave behind its entanglement in
litigation."
Weeks later, however, the government filed papers with the
Alberta Court of Appeal seeking to re-entangle the Anglican Church
in hundreds of lawsuits in that province.
This week, lawyers for native plaintiffs did the same thing.
Vaughn Marshall, a Calgary lawyer who represents former students,
says the Anglican Church is trying to hide behind corporate veils,
in the same manner as the Vatican did "over the affairs of the
[scandal-plagued] Roman Catholic diocese in Boston."
Although many Anglicans expected the Alberta ruling would be
appealed, an atmosphere of goodwill had developed following the
November deal with Ottawa.
Mr. Boyles said yesterday that agreement is designed "to end
Church and government fighting in the courts, thereby enabling
claims to be processed more quickly."
The agreement, however, has not yet been ratified by the Church's
dioceses, which are being asked to contribute millions of dollars
toward the deal.
"The government filed the Alberta appeal because it had to
protect its interests in case the [November] agreement is not
ratified," Mr. Boyles said, adding he expects Ottawa to withdraw its
appeal once the deal is ratified.
Tony Merchant, a Regina lawyer whose firm represents thousands of
residential school claimants, has maintained the government's soft
public words on residential school issues do not match its
increasingly hard-nosed tactics in court.
In Saskatchewan, he says, federal lawyers recently started asking
judges to strike down abuse claims on the technical basis that they
are barred by statutes of limitations -- a strategy Ottawa had
formerly disavowed. "There is something seriously reprehensible
about government lawyers applying to strike down claims on
technicalities ... while Cabinet ministers say they are going to pay
these kinds of claims and deal fairly with First Nations
people."
Federal residential school officials could not be reached for
comment yesterday.
rfoot@nationalpost.com
