New approaches for compensation considered

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It's too early to tell if behind-the-scenes political and legal maneuvering will lead to more settlements of residential school compensation cases, but many observers don't think a fair disposition of the claims is the federal government's real goal.

Several published reports in the mainstream national press in recent weeks have featured attacks on the government's approach to the residential school compensation issue. The focus of the stories has varied from criticism of the government's inclusion of the churches in lawsuits to the amount of money that former students' lawyers are earning.

The Canadian Race Relations Foundation analyzed mainstream media reporting on the issue and the foundation concluded the coverage is bigoted and anti-Native in that it focuses on the financial side of settling claims rather than ever mentioning - or considering - the importance of compensating Native people who were harmed in residential schools. The debate continues over whether mainstream newspapers are driving that approach to the issue or merely reflecting the sentiments of Canadians. But limiting the cost of compensation appears to be the main objective of most non-Native Canadians. And documents obtained under freedom of information legislation reveal the federal government is going to great pains to limit the cost of settling claims.

"The media is embracing the 'residential school syndrome.' There tends to be a blanket acceptance that residential schools were a difficult and terrible experience, which led to, among other things, cultural genocide. Our communications challenge will be to separate the issue of cultural assimilation from cultural eradication in the public's mind and characterize them as separate and distinct," one government document reads.

Churches appear to be winning their battle to convince federal politicians they need some relief from the growing number of residential school compensation claims.

Published reports this month revealed that the federal cabinet is looking at ways to help the churches dodge - or minimize the damage of - what could be a fatal financial bullet. The national office of the Anglican Church is already predicting it will face bankruptcy within the next year. Certain Roman Catholic groups are facing similar financial disaster, as well.

Peter Lauwers, a Toronto lawyer who advises church groups, presented a paper at a meeting of the Canadian Bar Association in Winnipeg last month that dissected the federal government's approach to the large and growing numbers of lawsuits filed by former residential school students.

Lauwers said the government is using the courts to avoid dealing with a politically dangerous matter of public policy, and the process is harming everyone involved, including the victims. He said the current path will lead to the destruction of many churches as they are crushed by the weight of paying to defend legal claims against them and of paying any damage awards in cases they lose. And, even though many of the victims aren't too sympathetic to the plight of the churches, Lauwers said the Canadian public will feel the pain.

"The effect of a church bankruptcy in public policy terms should not be underestimated," he said. "On a strictly utilitarian basis, church organizations now do a number of things for people that governments consider to be valuable in a social sense, all the way from running soup kitchens, to out-of-the-cold programs, to fundraising for crisis events at home and abroad, etc. At a time when the government is pulling away from social programs and is actively asking churches to take on a greater responsibility, it is ironic that the same government is engaging in activities that create significant financial pressures for churches. On a political level, the backlash that will result if active churches are taken over and sold to satisfy debts should not be underestimated."

He said he hasn't seen any attempt by government to face up to hard poliical decisions to deal with the claims. He said the government would rather leave the issue in the courts and then blame the courts if unpopular decisions are made.

"I do not detect . . . any real public policy thinking going on in the federal government about how to respond to Native residential school claims," he said. "These claims have to be addressed. The government has essentially adopted a litigation management response."

Lauwers dismissed the alternative dispute resolution pilot projects the government has set up, saying they aren't a real alternative to litigation because of the limits the government puts on the process.

"Both are essentially litigation management tools and nothing more," he said. "The recent reorganization of the Crown's response under the leadership of Shawn Tupper (Indian Affairs) and Doug Ewart (Justice) simply solidifies and makes more bureaucratic, and theoretically efficient, an approach which the government has been following for years."

Internal Indian Affairs documents, marked 'Secret' but obtained through an access to information request, show the department is working hard on several fronts to keep the concept of cultural destruction from being considered as a legal (or tortuous) damage for which the government could be made to pay compensation.

Since records show clearly the government's policy was to assimilate or eradicate Indigenous culture through the school system, it could be seen as a public policy. Legally, the government hopes to escape liability for cultural eradication by arguing that it isn't legally accountable for a bad public policy. This has generally been the case throughout history as public servants and politicians have successfully argued they couldn't possibly do their jobs if the spectre of facing a civil lawsuit should they make a mistake haunted them at every turn.

Regina lawyer Tony Merchant, whose firm represents close to half of the residential school plaintiffs, said he will argue that the culural eradication policy led inescapably to physical abuse and therefore could be seen as a civil harm for which damages could be awarded.

"Cultural eradication had to evolve to physical abuse," he told Windspeaker. "How could you make a six-year-old child not speak his language without being sadistically brutal?"

But Merchant admitted that no one knows whether cultural eradication will be considered a civil harm until the courts decide.

Lauwers said during a phone interview on July 10 that he wrote his paper for the Canadian Bar Association while feeling a high level of frustration. He said he later wished he'd been more diplomatic. Lauwers has noticed the government is striving so hard to keep the concept of cultural eradication out of the courts that the genuine harm that the cultural eradication has done is not being fully addressed.

"The government draws a bright line between traditional tort claims such as assault and sexual assault, that are compensable, and new causes of action such as claims for cultural eradication and inter-generational adverse effects," he said. "The latter, it says, are not compensable in the civil justice system and should not be compensable by pilot projects. The Healing Foundation is intended to deal with the cultural issues but not specifically in relation to Native residential schools; it does not provide redress directly to victims

Lauwers believes politicians haven't intervened to stop the legal wrangling because it would be politically dangerous to come out and make a policy that could enrage either Aboriginal and human rights leaders or a public that would see any great financial disbursement as the government coddling a vocal minority.

"The advantage of a litigation management model, if one is trying to avoid public accountability, is that there is no need to make any public policy pronouncements. Litigation management is reactive and operates almost automatically. In the end, it does not really visit accountability on ayone. If the result is bad, you can always blame the courts," he told the bar association. "But accountability will come in another form. The system will run its ordinary course. The litigation model will eventually cause some very serious public policy difficulties. The system may or may not break down. Claimants may or may not rise up in righteous anger. Church organizations may or may not go bankrupt with all of the attendant difficulties.

"So the litigation strategy may be effective, from the government's point of view, in allowing it to avoid issues of accountability in the short term. However this strategy is shortsighted, and likely to lead to an even larger public policy issue. For example, if the government forces a church organization into bankruptcy - as seems increasingly likely with the Anglican Diocese of Cariboo, or the Roman Catholic Diocese of Whitehorse, or an Oblate province, then a public policy issue will arise in which the government is forced either to make clear public policy choices - or to be seen as refusing to do so. Either way, it will be held accountable."

Merchant accused churches and the federal government of posturing and not being honest with the public. He said that only five of the 300 cases settled have cost the churches money.

"The churches have not handled this well," he said. "They've spent all kinds of money on lawyers but they would have been better off to file a defence and say we'll pay our share if it turns out there's a judgement."

Merchant said that when his firm left the churches out the lawsuits, the government then sued the churches, which had the effect of slowing down the entire process. In several cases, the government has also sued First Nations, something Merchant see as 'ridiculous.'

"The First Nations get their money from the government," he said. "If the government doesn't pay as much and the First Nation has to pay, where is the money coming from? It's more about optics. The government is saying we want