photo from Shingwauk Project Archives
The forgotten scandal
Feds lavish millions on lawyers while fleecing residential school victims
By DEBBIE O'ROURKE
Toronto Now Magazine
April 28, 2005
If justice ruled the land, the sponsorship scandal wouldn't be the Libs' only 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, are the Libs 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 all 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 honourably."
The government, he said, should do the right thing and the 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 still waiting."
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 hoovered 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 reulted 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."
Eighty-eight-year-old 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."
Merrick's stepdaughter, 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 class action.
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 that standard 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.
Says Darcy Merkur 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 Bigstone Cree 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 Chaput, a Metis 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 McLellan's office (McLellan, 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 Chaput, "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."