Church deals more extinguishment, critics say

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Canada has signed deals with two of the four churches that ran the country's 130 Indian residential schools. The government of Canada committed to cover 70 per cent of the costs of settling compensation claims filed by victims of physical and sexual assault. The Anglican and Presbyterian churches agreed to cover the other 30 per cent up to a set limit.

The parties pledged to drop all third party claims and cross-claims they have filed against each other in court. They also pledged to not file any further claims of that type.

Instead of fighting each other in court, they will now try to co-operate to resolve the claims as quickly and cheaply as possible.

The latest agreement was signed on March 11 by Archbishop Michael Peers, primate of the Anglican Church of Canada, and Ralph Goodale, the cabinet minister responsible for the Office of Indian Residential Schools Resolution.

A similar arrangement with the United Church is expected in the not too distant future. Only the Catholic church has been unwilling to talk about terms, so far.

All 30 dioceses of the Anglican church had to ratify the terms of the accord that will cap the amount of money the church will be liable for at around $25 million. Grassroots members of the church, who number about 600,000, will be expected to contribute to a settlement fund. Archbishop Terence Finlay recently estimated that an average contribution of $100 will be enough to cover the church's obligations.

Since the Presbyterian church operated the fewest schools of the four churches, its agreement, initialled in December last year, sets a limit of $2.1 million.

Approximately 12,000 residential school survivors have filed lawsuits so far. As many as 18,000 lawsuits are anticipated. The government has budgeted $1.7 billion over the next seven years to resolve the claims and hopes to persuade victims to settle out of court through an alternative dispute resolution (ADR) process.

Individual members of the churches must now be convinced to make the contributions.

The one aspect of the agreements that troubles most Native observers is found in Sections 6.2 and 6.3 of the Anglican agreement, 18 difficult-to-read pages into the 53-page document. The sections commit the church to "vigorously oppose" any claims for loss of language or culture. The government has arbitrarily decided that such losses are not legally actionable and insisted that the churches actively support that position.

That's what caused the Anglican Council of Indigenous Peoples (ACIP) to reject the agreement.

ACIP members met with Archbishop Peers on March 10 "to urge him not to sign the settlement agreement . . . until changes were made to prevent re-victimization of survivors and promote true healing and restoration," an ACIP press release stated.

They say they first saw the agreement on March 6.

"We oppose the requirement of survivors to waive all future claims for loss of language and culture in order to gain a settlement for physical and sexual abuse-a requirement which we understand to be an extinguishment of our Aboriginal rights to our languages, cultures, and traditions. We are appalled by the torturous nature of the alternative dispute resolution process that is currently being drafted by the federal government, in consultation with the Anglican Church, and fear that such a process will further violate survivors while offering most of them very little compensation in return," the release said. "As the Anglican Council of Indigenous Peoples, we want to declare that on March 11, when the settlement agreement is signed and made official by the primate on behalf of the Anglican Church of Canada, he will not be doing so in our name."

The Assembly of First Nations has also declined to support the agreement, mainly because of the offending sections.

Several observers noted that when Peers apologized to residential school survivors on behalf of the church on Aug. 6, 1993, he first mentioned the loss of cultur and language and then apologized for the abuses that occurred in the schools.

"I am sorry, more than I can say, that we tried to remake you in our image, taking from you your language and the signs of your identity. I am sorry, more than I can say, that in our schools so many were abused physically, sexually, culturally and emotionally," the archbishop said.

Andrew Wesley, one of two ACIP co-chairs, remembers the apology.

"That's right. It's really hard to understand it. He's exactly doing the opposite. He's going to go with the government when it comes to language and culture," he said.

Wesley said a national class action lawsuit is trying to get claims for language and culture loss accepted by the courts.

"If they win, our church with the government would oppose vigorously anything to do with language and culture," Andrew Wesley said.

He said his committee strongly disagrees with the way the alternative dispute resolution process is being developed by the government.

"There's two reasons we didn't agree with the ADR process. One was the release that you have to sign. When we looked at the form, the victim has to sign before he goes into the ADR process. Normally, you have to sign after you negotiate or whatever. We didn't agree because it was a government-driven process. The Aboriginal people of the Anglican Church were never consulted," he said.

"The only reason I got involved in this is because I come from way up north in Moosenee (Ont.). I was involved in an ADR process with my own survivor group that went to a Roman Catholic residential school. I went to a Roman Catholic school for about five years and then I went to an Anglican school. A few days before the agreement was offered to the church, it was offered to us. We turned it down. We walked away from the table. So I knew about the ADR process even before I knew about the church agreement."

He said all victims must sign a waiver just to get into ADR.

"That's the only way you can get in. It tell you you're selling your birthright right at the start, even before you go in," he said. "We didn't even make a recommendation to our Anglican survivor group. We're saying it's up to you if you want to go. We're not telling you not to go. If you go then you're signing your rights away but we're not stopping them."

Wesley believes the churches' reasons for signing the agreement are all about money.

"That's how it was presented to the various dioceses. Nobody ever saw the meat of the agreement," he said.

Chief Robert Joseph, executive director of the Vancouver-based Indian Residential School Survivors Society, was pleased to learn that the church and government will stop fighting each other in court and get down to the business of settling claims. But he agreed that the sections dealing with language and culture loss are troubling.

"One of the regrets, however, in the coming together to agree on the 70-30, is that the Anglican Church-I haven't seen the Presbyterian agreement but I've seen the Anglican agreement-has been asked to defend vigorously against any language and culture claims. That's not a good position for the church to take," he said.

He pointed out that Heritage Canada Minister Sheila Copps recently announced a $172 million program for Aboriginal languages and cultures. He'll be watching to see how that unfolds.

Joseph also revealed that some work on the issue is in progress within the department of Justice.

"I have spoken to high government officials about our concern that there might be any notion of extinguishment of language and culture rights through any of these processes. The person I was speaking to said they were now talking to Justice department lawyers and they were trying to find some way to negate that this in any way extinguishes rights and title," he said. "They're working on some kind of wording, so that remains to be seen. We want to see the clause when it comes out. Hopefully, it will say that anyone who settles through the ADR or ut-of-court settlement will not waive any of their rights."

He suggested Justice was working on this matter to look after the government's own interests.

"Very few people will go through the ADR process if they're concerned about waiving rights," he said. "That's not in [the government's] interest either. They spent a lot of money developing these processes. And they need to resolve some of these 12,000 cases going through the courts. So I think that over time, through negotiation, we're going to be moving forward with things that we can live with on the Aboriginal side of the equation."

Regina Lawyer Tony Merchant probably represents more residential school victims than any other lawyer. He sees the trend towards churches working with the government to be a positive move.

"I'm actually more pleased as these things are developing than I thought I would be. First, it matters not a whit in a sense if money comes from the government or money comes from a church organization. And the amounts of money that the churches are putting in is not a significant amount in relation to their real liability. A person might look on and say, 'Gee, is that all they have to pay?' I think that the amounts that they're agreeing to pay aren't based on what their fair proportion of the damage would be but rather on the government's estimate of what they might reasonably get out of them. It's really, 'I think it's more money than that but I know I can't get that much so I'm just going to settle for what I can get without a big fight.' And I think that's fair enough," he said.