ADR process launched

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The government is trying to play off residential school survivors who experienced physical and sexual abuse against those who did not, said Ray Mason, the chairperson of a grassroots survivors' organization in Winnipeg.

His comments were made in response to the federal government's announcement that its alternative dispute resolution (ADR) process to deal with the back-log of legal claims filed by people who attended Indian residential school was up and running.

Ralph Goodale, the minister responsible for Indian Residential Schools Resolution Canada, announced on Nov. 6 that the optional ADR process was available "as of today."

Goodale said there are approximately 90,000 former students, about 12,000 of whom had filed legal claims against the government.

"So far, 12 cases-that's correct, a grand total of 12-have been litigated to a conclusion. Close to 1,000 have been settled either through pre-trial negotiations or a number of ADR, that is alternative dispute resolution, pilot projects," he said.

The minister said it could take longer than 50 years to resolve all the cases through the courts. He said the ADR process could shorten that time period to seven or eight years.

"The status quo scenario could mean that most claimants, many of whom are already elderly and ill, will simply die before their claims are resolved. It's my desire to create more options by which more settlements can be achieved and paid more quickly," he said.

Goodale repeatedly claimed that the ADR approach was "more humane."

Mason, chairperson of a Winnipeg-based survivors' group called Spirit Wind, laughed when informed that the minister is making that claim.

"What we're saying is that the ADR process is not complete because in our mind there's no such thing as being partially wrong or partially right. The way we interpret the ADR right now, they're saying, 'We're wrong for what happened in the residential school system so we'll just compensate part of the residential school survivors.' We're saying that's not fair. No. We want it across the board and we want them to compensate us fairly. The sexually and severely physically abused, naturally they're entitled to more than the regular claims," he said.

He accused the government of pitting one group of survivors against the others in order to further its own agenda.

"We're not causing the division between the physically or sexually abused. We want them to be part of us because we were there together. This is where the government is causing division by saying, 'Let's do part of it.' And I'm saying to hell with you guys. Either you're wrong or you're not. One or the other. A lot of people were sexually abused and severely physically abused and we agree that they should be compensated. But what we're saying to them is don't forget about us, too. We were with you."

Mason said he-like so many others-lost his language after being beaten and humiliated for speaking it in school. He said the government is trying to muddy the waters by arbitrarily limiting the areas where compensation will be considered and by fighting with the churches over who is to blame. He said the government's communications plan is to draw attention away from the realities of the situation in order to limit the amount of money it will be required to pay to its victims.

"We call it cultural genocide," he said. "They won't have anything to do with [that term]. They don't want to hear that and yet they made it law for us to go to school."

Windspeaker asked Goodale about that. We asked him to comment on the assertion that the residential school system was a premeditated act of cultural genocide perpetrated by the federal Crown.

"I'm not going to comment in the terms that you've invited. But I would say that the experience pulled in from Indian residential schools has obviously been, in many, many, many cases-at least 12,000 that we know of-a very sad and grim experience that we are now trying to deal with in the best wa that we possibly can," said Ralph Goodale. "That usually takes the form of money. That's not in itself total and complete compensation for some of the things that are very difficult to quantify. But we obviously recognize that that system in some instances went very badly sideways and we now have to deal with that legacy to the best extent that it's possible to do."

In a now infamous quote, the top Indian Agent in the country at the time the school system was implemented, Duncan Campbell Scott, said the purpose of the system was to "take the Indian out of the child."

That was to be accomplished by eradicating Indigenous languages and cultures. Windspeaker asked the minister how it was that the Crown still won't compensate for loss of language and culture.

"With respect to the loss of language and culture, no court has to date determined that these are valid, individually contestable claims. However, the government does provide substantial programmatic responses to Aboriginal language and culture requirements. This has involved an annual investment by various government departments totaling more than $20 million per year. And last December we added another $172 million for incremental language and culture initiatives over this coming decade to recognize the significance and the importance of the language and culture concern," he said.

In a press release, Mason said that spending was an attempt to avoid paying the real costs.

"Government programs to promote Aboriginal language, culture and residential school survivor healing do not represent fair and just redress of the language, cultural and spiritual genocide inflicted on Aboriginal children and their families in the residential schools. These programs and initiatives must be separate from the residential school issues and not financed from money that should be forwarded as rightful compensation to individual survivors."

The launch of the ADR process was delayed while the government dealt with criticism of is original plan to have participants sign a document that committed them to not suing the government in the future should a court decide that language and culture loss were actionable. The waiver is still required, but now it will be signed after the ADR process has been completed.

National Chief Phil Fontaine said the ADR process "is a start, but must be expanded into a comprehensive plan that provides healing and compensation."

He said that more than 60,000 residential school survivors and their families suffer from after-effects of the system.

"ADR is a good approach and certainly much better than the courts which are adversarial and time-consuming," said Fontaine. "Yet, the approach announced today is incomplete and will remain incomplete until it deals with issues of culture and identity. We have put forward a number of proposals that address these issues and we'll continue to press the government to move towards a more comprehensive, effective approach."

Lawyers for residential school victims called on incoming prime minister Paul Martin to overhaul the government's handling of residential school claims.

"We are asking Mr. Martin to start his program review here," said Craig Brown, lead lawyer for a national class action filed on behalf of residential school claimants. "The government's dispute resolution program will be another wasteful government bureaucracy. We need the political will to settle all residential school claims and heal these lifelong wounds."

Alberta lawyer Jon Faulds joined the attack.

"They will probably try and call it a kinder, gentler way of handling claims, but it's not," said Faulds. "They will force every qualifying victim to relive his or her residential school experience. They will only compensate 15 per cent of all residential school survivors. The vast majority of those qualifying for compensation will only receive 70 per cent of their award. They will force a victim in the Prairies or the Maritimes to take less compensationthan a victim in British Columbia or Ontario. And they will not even consider the harm caused by tearing the victims away from their homes and placing them in institutions in an ill-conceived and unsuccessful attempt at assimilation."

Both lawyers are members of a national consortium of lawyers from 19 law firms from across Canada that represents some 5,000 residential school victims. The consortium unanimously rejected the ADR program as fundamentally "flawed and doomed to failure."

The lawyers, in their press release, said the government is still manipulating the system to its own advantage.

"The government was the wrongdoer. It has apologized for its misconduct. Yet, it made up all of the rules governing this process, defined the law to be applied, decided who should be compensated, decided how much should be paid to those qualifying and did all of this without any meaningful consultation with victims or their representatives," the release stated.

The total budget of the Office of Indian Residential Schools Resolution Canada is $1.7 billion. Goodale said the office's total administrative costs would be around $700 million about half of which will be to administer the ADR.

Litigation costs for cases not in ADR will total $285 million.

The United Church and the Roman Catholic Church are not participating in the ADR, however, government sources say an agreement to include the United Church in the process is close. Those churches that are participating will pay 30 per cent of the compensation decided for each victim, with government paying the remainder.

Percentage of legal claims by church: Roman Catholic-75 per cent; Anglican-15 per cent; United-eight per cent; Presbyterian-two per cent.