No rez school resolution in sight

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People who went through the residential school system know what it has cost them in lost childhood, lost dignity and lost opportunities in life, but the financial cost of settling up with them for a portion of these losses is more elusive.

Ottawa is talking about a $2 billion bail-out in legal costs for the churches that were parties, along with the federal Department of Indian Affairs, to the assimilation of generations of Aboriginal children into a foreign way of life.

Deprivation of family life, language and culture, as well as physical, sexual, emotional and spiritual abuse, accompanied a legislated scheme to make Indians 'fit in' to the dominant society. Many traumatized former students were lost to addiction problems and suicide, but the government's own figures say there are still 105,000 survivors of residential schools.

Some number-crunchers estimate the lawsuits will cost the federal government as much as $10 billion, just to compensate the physical and sexual abuse claims that get to trial or are settled out of court. There is already a backlog of several thousand cases on the docket. But officials we talked to could not confirm costs.

The government is adamant, however, it won't pay compensation for loss of language, culture or the intergenerational effects resulting from systemic abuse of thousands of children.

Phil Lane, international co-ordinator of Four Worlds International Institute for Human and Community Development, sets the figure higher than $10 billion, if the government and the churches were to compensate survivors for all the detrimental effects experienced by residential school survivors and their families.

Lawyer Tony Merchant, who handles a large number of residential school claims through his Regina office said compensation for intergenerational effects did not necessarily have to go to individual victims, but could be allocated more in the nature of community healing.

"Compensation always depends on the degree of damage that was done to a specific individual," Merchant said. ?Someone might have been sexually assaulted or physically assaulted for a lengthy period yet 'shrugged it off,' he said. Another person might have had similar assaults on only a couple of occasions and suffered more. The person who was more affected by what happened would get more money than the one whom psychologists determined was not as badly affected.

Both Lane and Merchant were invited to speak at the residential school conference hosted by Western Cree Tribal Council in Edmonton, Feb. 23 to 25.

As it stands now, Lane said a couple of days before the conference, the church lawyers in particular are digging in their heels and resisting taking financial responsibility.

Merchant, who makes a living trying to get an equitable settlement for residential school survivors, pointed his finger at government. The Alberta government in particular, he said, has a unique policy on dealing with residential school claims in Canada.

"If you don't issue a claim by Feb. 28, 2001, your right to sue is lost forever. Now we intend to challenge that, and we intend to attempt to issue additional law suits, but there is a very great likelihood that people [in Alberta] who don't sue before the end of this month will lose their right."

He said the substance of his firm's argument in challenging any statute-barred claim will be that the provincial legislature of Alberta should not be allowed to discriminate against clients just because they live in Alberta.

Although provinces have the right to set a statute of limitations, Merchant said, "we say that Aboriginal First Nations issues are federal issues and ought not to be impacted in any way by something done in a legislature." But he adds it is not unusual for federal issues to be affected by rules set by a province; therefore, "we are not just going to win on that basis."

In Ontario, at least, Merchant can sue under the Family Relations Act to seek eress for relatives of First Nations people who attended residential schools, but there are no similar laws in other provinces.

Merchant added the federal government has taken the position it won't pay for loss of culture or for confinement, which were "sometimes very significant" issues. "I have many, many clients who would go a whole year without seeing their family," and many who went two years, he said.

He also said he didn't see the government paying anything for 'family and community' issues related to residential school claims unless "we start to be successful winning those lawsuits in the courts." The only thing the government has been forthright about is that it will pay for sexual abuse cases, he said, and he believes the government made a "strategic decision at the beginning of 1998" that they were going to fight the residential school claims.

Merchant made the point that the government has not done anything voluntarily and that putting residential claims forward has been a "lawyer-driven agenda. But for the good job done by lawyers . . . particularly in British Columbia and Saskatchewan . . . First Nations people wouldn?t be getting a nickel," he said.

"I don't think there have been 10 cases settled in the last three years."

Lane spoke to Windspeaker Feb. 20, the day before he was scheduled to talk about the intergenerational effects of abuse at the conference.

"If all the abuse and cultural genocide that occurred to our Indigenous peoples of Canada, through the residential schools, is ever completely satisfied and had just recompense, it would be in the high billions of dollars. It would be 10 to 20 billion dollars, at least," he said.

"But the thing that's going on . . . the government is really taking the position, even while trying dispute resolution, that they'll only accept physical and sexual abuse. And so what's happening is a lot of these lawyers are charging great big fees(50 per cent of the people's money)and just taking o just the ones they make money off of, and they're not thinking of the overall collective need we have to heal the nations.

"I mean, this was cultural genocide, and needs to be recognized before the world courts as that. There needs to be a complete public information process go on to really educate all Canadians about what truly happened."

The churches and the government should pay for this public relations campaign, Lane said.

That is because until all Canadians know the history of residential schools, "we will continue to suffer foolish and uninformed articles" that essentially said this was just some concoction of Native people. Well, that's sick. Well that's as sick as the people who deny there was a holocaust in Germany."

Lane said one of the key things that needs to be done is "the whole picture" needs to be looked at. Survivors should not be divided into categories of abuse, some deemed worthy of compensation and some not. He said some lawyers "are so hungry for our money" that they focus only on physical and sexual abuse while they negotiate away cultural losses and intergenerational effects, which weakens the position of those who bear the losses and effects.

Lane does not condemn the churches outright. In fact, he demands that they agree to "morally stand by the teachings of Christ. . . for those who have been treated unjustly, and back up Native people from now into the future." But that's after they fully disclose their assets and ante up "until this thing's resolved," which he hints could take a long time. At that point, Lane indicated he would be disposed to forgive them.

The director of the Residential School Unit at Indian and Northern Affairs Canada (INAC) is Shawn Tupper.

Tupper exhibited considerable sensitivity to the wide range of issues he deals with. But when he explained the government's approach to compensating residential school survivors, the government's hard position was apparent: INAC has negotiated and will cntnue to negotiate only on claims of physical and sexual abuse that get to trial.

"What we're trying to do is figure out ways that we can address the issues of language and culture outside of the court room. One of the reasons is that language and culture hasn't been recognized as a cause of action in law, and there is no way to kind of gauge how you would end up compensating individuals for that (financially)."

According to Tupper, 90 per cent of the lawsuits mention physical and sexual abuse and loss of language and culture. What remains includes "loss of companionship with respect to family relations; poor conditions at the schools; . . . forced confinement."

These issues, which account for more than 10 per cent of the residual effects of residential schools according to many Aboriginal people, are what they identify as "intergenerational effects." That term is infrequently heard on the government side, however.

Although the government is willing to accept some responsibility for loss of language and culture, it seems to define that narrowly.

Another reason for not compensating financially for loss of language and culture, Tupper said, is that "it's an issue that goes well beyond the people that have brought claims forward so far, and it goes well beyond, frankly, issues related just to residential schools."

He said the damage that has been done to Aboriginal language and culture "speaks to a broader context of the government's historic policies, and I think that what the government is looking to do now is look at how it can establish a kind of broader policy and programmatic response that would account, not just for people who went to residential school, but people who were affected by that broader array of historic policies."