Response to Miscalculated Risks editorial

On March 17, 2004 the Calgary Herald ran an editorial entitled ' Miscalculated risks '. The editorial questioned the federal governments plan to compensate former students from residential schools who feel their language and culture had been abused. The following is a rebuttal to that we received from F. G. Vaughn Marshall, a Calgary lawyer whose firm represents more than 600 aboriginal claimants.

Friday, March 19, 2004

Justice for None: The Legacy of Canada 's Indian Residential Schools

Date: March 17, 2004

To: Editorial Board, Calgary Herald, Attention: Doug Firby

From: F. G. Vaughn Marshall, Attorney at Law

CC: Phil Lane , Jr.

Re: Response to March 17, 2004 Calgary Herald Editorial, Miscalculated risks.

In its March 17, 2004 editorial entitled Miscalculated risks , the Calgary Herald questioned the wisdom of the Federal Government's providing the possibility of redress to former students of Federally operated residential schools arising from damages caused by the assault on their language and culture, a practice that was endemic to Canada 's notorious Indian residential school system. Doing this would expose Canadian taxpayers to unnecessary additional risk, the Herald said.

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 Government's 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 basis.

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.

Canada 's ADR Program will provide some compensation for sexual assaults and very limited physical abuse, but utterly fails to provide redress for the fundamental evil of the system which harmed generation after generation of Canada 's Aboriginal children and crippled their communities. Aboriginal Canadians should not have to go to Court for redress for these damages and deserve to be fairly compensated for such losses through the ADR program. Forcing them to take these issues to court in this province will seriously prejudice Aboriginal claimants because it will add years of further delay to the five years these cases have already been frozen in legal limbo in the Court of Queen's Bench of Alberta .

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 Canada - amounting to cultural genocide, in my view. This plan was officially implemented by the Canadian Government with the enthusiastic assistance of the Roman Catholic, Anglican, United and Presbyterian Churches , and was explicitly designed to institutionalize Aboriginal children and strip away their culture and language and purportedly provide them with a European education. The plan was to transform these "savages" into little "white people". While that in itself was reprehensible, the consequences of the Government's policy was far more damaging because not only was nothing meaningful provided to the children in place of their own culture which was being eroded every day in these schools, Aboriginal children were provided with a severely deficient education - measured by any standard. When they "graduated" from these "schools", virtually no Aboriginal children were sufficiently prepared to participate in mainstream Canadian life in any meaningful way. Many could not even read or write. Moreover, with the thread of their own cultural continuity badly severed by their confinement in such institutions for up to ten years, when released from these "schools" onto their reserves, the students did poorly navigating their way in their own communities.

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.

1. 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.

2. 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 institutions.

3. 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.

4. 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 people.

5. 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 , devoted a special chapter to dealing with the experience of Aboriginal Children in Canada's residential school system, from which much of the following is directly extracted.

The 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 their communities.

One 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.

Children 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.

The 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.

Redress 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.

The 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 system:

1. In 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.

2. In 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.

3. Deprivation of an adequate education should also be considered as a basis for redress.

Although 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 economic loss, 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 ^th century and are unlikely to stand for being ignored and neglected again.

Dr. Joel Spring , an American Indian, is a professor of educational anthropology who teaches at the New School University and Queen's College of the City University of New York. Dr. George Spindler is Professor Emeritus of Educational Anthropology at Stanford University. Throughout their lives, both of these renowned scholars have studied the role of culture in education, the deculturalization and education of dominated peoples, and the impact of attempts to eradicate native cultures in the Americas. Both believe that damage from the destruction of language and culture should be compensated in the ADR Program.

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. Every Aboriginal 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 is "yes".

In Monday's Print Edition of the Calgary Herald Vaughn Marshall makes the case for compensating cultural genocide. Be sure to see his article in the Herald on March 22, 2004.