Cat's meow of a panel denounces ADR process
Paul Barnsley, Windspeaker Staff Writer
Windspeaker - December 2, 2004; p. 11.
Assembly of First Nations' report on Canada's dispute resolution plan to compensate
for abuses in Indian residential schools was released on Nov. 17 and presented
a scathing indictment of the federal government's alternative dispute
resolution (DR or ADR) process.
The report was commissioned and released by the Assembly of First Nations (AFN), but more than half of the members of the expert panel that prepared it are non-Native people who hold law degrees. Many are eminent law professors and two are judges.
In page after page of the report, the various tactics and strategies employed by the government of Canada to minimize financial liability arising out of the residential school system are laid bare by the 18-member blue ribbon panel. Then the report presents an extensive list of recommendations that, if followed, would dramatically change the direction of ADR.
The wheels were set in motion for the report in March at the University of Calgary's National Residential Schools Legacy conference. All parties in the legal and political disputes arising out of residential schools issues were in attendance, including Mario Dion, the deputy minister in charge of the Office of Indian Residential Schools Resolution Canada. Dion agreed to let the AFN put together a report on the ADR process at that time. National Chief Phil Fontaine said Dion has admitted there are problems and has committed himself to respond to the report after three months.
"We're confident that our proposition will receive a favorable response from the federal government," Fontaine said. "If we continue with the current system, it's going to take 53 years to settle all of the claims. It's going to cost at the minimum $2.3 billion. And we're saying there's a better way of doing this. Something that's more fair and more cost efficient. Something's that geared to healing and reconciliation. This current process can't achieve that."
The panel emphasized that the present approach worsens the divide between Native and non-Native Canadians and urged a kinder, gentler approach based on reconciliation. They urged the government to initiate a public education process with this aim in mind.
"The churches are a large part of this process and they're particularly interested in the truth and reconciliation. We hope that the federal government will accept the offer that we made that there be truth and reconciliation as part of it," Fontaine said. "It's worked in Ireland; it's worked in other jurisdictions very well. And the churches are on board and we're proceeding with work to establish the truth and reconciliation body."
That includes the Catholic Church, the lone church that has refused to sign an agreement with the government to pay its share of judgements to residential school survivors, Fontaine said.
During a recent chiefs' confederacy, the national chief was directed to lobby the government for an apology for the residential school system from Prime Minister Paul Martin. He said he will push the federal government to make a more sincere gesture of regret than the 1998 statement of reconciliation which included an apology from the Indian Affairs minister for physical and sexual abuse suffered in the schools.
"In Ireland, the compensation package is by statute. The Japanese Canadian agreement is in fact an agreement that was introduced and ratified by Parliament. But we're dependent on the goodwill of the government and we need to address that issue. It may be we'll continue to press for a further expression by way of an apology from the prime minister in Parliament. It's something that's before the government," Fontaine said.
Darcy Merkur, who is one of many lawyers working on the Baxter case, a national class action suit that is awaiting certification in an Ontario court, praised the report.
"The thing that's not getting the play that it deserves is that it was [written] by a dozen of the most prestigious law professors in the country. Nobody's really absorbed the fact that this isn't just a report by lawyers or survivors. This is by objective professors. This is the cat's meow when it comes to the authors. These people are very well respected. These are colleagues of the Justice minister who was a law professor at McGill University," Merkur said.
But he doesn't see all his clients settling quickly with the government even if the report was adopted immediately.
"The reality is that the AFN recommendations are just that and the problem with them is that they're just recommendations. They're asking the government to make certain changes but the government doesn't have to do anything," he said. "The only person that can force the government to do anything is the court. We bring the sword. We say 'We don't care what the bully says. We're going to the principal.'"
The report will be a useful piece of evidence in current and future court cases, he said.
"At least we have an objective party saying the government's ADR is unfair. It doesn't look like we're greedy lawyers saying it's unfair because we want more money. We think it's unfair because it's not giving our clients what they deserve."
Vaughn Marshall is a Calgary lawyer who represents hundreds of members of the Blood Tribe in Alberta. "The AFN has come out with it and I think its having come out with it is going to go a long way towards solidifying the position of the Aboriginal peoples' claims," he said.
Marshall said the ADR process as it now exists is "a compensation program for bureaucrats, not residential school survivors."
"The report also highlights the amount of waste and red tape in the government's existing approach to settlement," he added. "Ottawa spends more than three times as much on overhead as it does on compensation."
And while the expert report shied away from making accusations, Marshall stated bluntly that he sees all of the points raised in the report as indications that the government created a process that is "intentionally and shamelessly unfair."
The task force's report is broken down into three parts-compensation for residential school abuses; truth-sharing, healing and reconciliation; and feasibility and costs.
Part I is a 24-page analysis of government tactics and policies that makes 30 recommendations. Part II makes five more recommendations on how to get the full story of the residential school legacy into the public record and before the general Canadian population to, in part, "ensure that another state committed atrocity does not take place."
Part III chides the government for trying to cut corners on paying for the harm it caused.
The very last paragraph of the 42-page report sets out a challenge for Canada.
"If implemented, we believe our proposed reforms to the DR model will make it one for which Canada and Canadians can be proud. It will enhance Canada's reputation as a leader in the world for the respect of human rights at the same time increasing the stature and respect for First Peoples at home and abroad. It would also set an international standard and methodology for dealing with mass violations of human rights and will finally put behind us, in an honorable way, the most disgraceful, harmful, racist experiment ever conducted in our history."