Appeal court arguments over

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Arguments in the appeal of the Alberni Indian Residential School (AIRS) trial concluded the last week of January in the Vancouver law courts.

Lawyers for seven AIRS survivors as well as the federal government and the United Church of Canada were arguing over perceived faults in B.C. Supreme Court Justice Donald Brenner's decision of two years ago.

"The United Church was the first to appeal, claiming they were not liable for the things that happened at the Alberni Indian Residential School," said Peter Grant, lead lawyer for the plaintiffs.

"Then Canada appealed claiming they were not liable for aggravated damages and saying the church should pay 50 per cent of the damages, not 25 per cent as ruled by Justice Brenner," he said.

"We appealed that the judge did not find Canada and the United Church negligent of their fiduciary duties, and the damage awards were too low," said Grant. "He (Brenner) should not have dismissed the case against the lone female plaintiff (Martha Joseph), and three of the other plaintiffs suffered wage loss and opportunity losses that were not compensated."

Almost every legal issue involved in Justice Brenner's decision was brought forward to the five-judge panel hearing the case in the B.C. Court of Appeal. Arguments lasted throughout the week of January 20, as lawyers for all sides as well as various interveners argued for the issues to be revisited at a higher level.

Tseshaht lawyer Hugh Braker represented intervener the Nuu-chah-nulth Tribal Council (NTC), arguing for the plaintiffs in saying the federal government and United Church of Canada went against their fiduciary duty to protect children in their care from harm.

"It was really powerful to hear one of our own people argue our case before the panel of judges, and I think they were moved by the presentation as well," said plaintiff Leroy Barney. "This trial is about the 150 years of terror our people had to endure in these schools that were designed for genocide," he said.

The NTC was not directly involved in the original trial, but has an interest in its outcome, which is why it was granted intervener status that allowed it to make an argument to the court through its legal representative.

The Alberni Indian Residential School trial (Blackwater et al. vs. Plint et al.) started in February 1998 in Nanaimo with 31 plaintiff.s.

Over the following three years and many weeks of testimony in Nanaimo, Prince Rupert and Vancouver, two of the plaintiffs committed suicide because of the pain of bringing up their painful pasts, a few plaintiffs settled out of court, a few plaintiffs left for personal reasons, and seven continued through the many phases of the trial until judgement.

"The timeframe of this case is only a tiny window of that 150 years, but there is so much involved in this trial it's just mind-numbing," said Barney.

"I'm trying to understand where the church and government are coming from, and trying to understand the law, as this appeal is very different from the trial," he said.

"The government made a law that said we as Native children would be taken away from our families at the age of seven, but I was in school with kids who were five and six, so that's just another example of how they broke their own damn laws."

Barney, who was given the highest award from Brenner, said he is still very angry, and he works with a number of therapists and psychologists from the Vancouver Association for Survivors of Torture (VAST).

The B.C. Court of Appeal has reserved judgement in the case, which means an actual judgement might not be released until summer.

According to Grant, a similar case is before the Supreme Court of Canada, and the B.C. Court of Appeal judges may wait to see what happens there before making their own judgement, or they might release their own findings before the Supreme Court reaches its conclusions.

"This ruling could affect damage awards, and it could affect findings on fiduciary duties and limittions," said Grant. "It will definitely have an effect on all future residential school claims," he said.