Cat's meow of a panel denounces ADR process
Paul
Barnsley
,
Windspeaker
Staff Writer
Windspeaker
-
December 2, 2004; p. 11.
OTTAWA: The
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."
Paul
Barnsley
Senior Writer