Residential school compensation: Who do I turn to? What do I do?

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Some residential school survivors say Canada's apology for physical and sexual abuse, supposedly a gesture of reconciliation to Indigenous people, has made their lives even harder.

For many, the dizzying landscape of complex choices surrounding the entire compensation issue - to sue or not to sue, negotiation and mediation versus litigation, class actions versus individual lawsuits, healing issues confused with civil law issues confused with criminal matters - is just too much to deal with.

When Indian Affairs Minister Jane Stewart told the many victims of the Indian residential school system on Jan. 7 that Canada was "deeply sorry" for its past actions, it seemed like a breakthrough for the federal Liberal government.

After a federal cabinet member publicly admitted that Native people had been wronged by the government, the victims hoped and expected the apology would mean that Ottawa would be more willing to negotiate just settlements.

"We watched and waited for four to six months after the apology. We were hoping, after the announcement, for some kind of move toward mediation," said Ed Metatawabin, a member of Peetateck Keway Keykaywin (St. Anne's Residential School Survivors group) and the former chief of the northern Ontario Fort Albany First Nation.

"We've been trying since 1992 to sit down with the feds, Ontario and the Catholic church and it was always the feds that refused, even after the apology. We are interested in mediation over litigation, but nothing has happened. Whatever the minister says is just words. The bureaucrats who work under her haven't changed a bit."

Metatawabin said his group believes the bureaucracy is more reluctant to consider negotiations regarding compensation because of the legal implications of the apology.

"It's even worse now," he said.

What are the alternatives?

Last Jan. 16, Assembly of First Nations National Chief Phil Fontaine told Windspeaker he was involved in a series of meetings with the minister and her staff. Those meetings were aimed at finding an alternate way for victims to seek compensation from the government that would avoid the lengthy delays and the high cost of civil litigation. AFN officials confirmed this month that those negotiations are still ongoing. Sources in Ottawa say the national chief is pushing the government hard for the alternative dispute mechanism. But, after at least six months of talks, neither side is prepared to say when, or if, a resolution will be announced.

Many victims suspect the government's strategy is to delay until a significant number of people with legitimate legal claims either run out of money for legal expenses or die. They say their government, which is supposed to serve them, has instead made them the enemy.

Jeremy Beatty, the chairman of the Hepatitis C Society of Canada, said the complaints of residential school survivors sound familiar. The former vice-president of Hewlett-Packard (Canada) Ltd., forced by failing health to give up his job three years ago after being infected by tainted blood he received during a surgical blood transfusion in 1977, has led the fight for compensation for tainted blood victims. The Canadian Red Cross Society is facing $5 billion worth of civil lawsuits in relation to the blood scandal. The federal government, which is ultimately responsible for monitoring the blood supply, has offered $1.1 billion.

"There's no compassion in government," Beatty said. "Getting elected is not a compassionate process. I've learned that governments, and individuals within the government, lie. They don't tell you the truth. They never tell you everything they're thinking. They never tell you everything they're doing. They withhold information and make you use the Freedom of Information Act. Their value system is out of touch with regular Canadians who believe that if someone is harmed through no fault of their own, they should be helped. And Canadians don't care if it was an honest or a dishonest mistae. They just think, 'It could have been me.' This government is trying to steal $3.9 billion by using an out-of-court settlement to give us 20 cents on the dollar. They know the courts would find them guilty, so they've decided they'd be better off to settle for far less."

Minister Stewart told Windspeaker in late January that the federal government was already settling cases out of court before the apology, but the apology appears to have made plaintiffs more willing to hold out for larger settlements. That appears to mean the government will be more likely to end up in court if a compensation plan that is satisfactory to the victims isn't devised.

There are now well over 1,000 civil lawsuits that relate to the residential school system pending against the federal government.

Class action legislation, a relatively new type of law in Canada, seems to be tailor-made to help those who believe they've been harmed by the school system.

Only three provinces in Canada have class action legislation in place. Ontario's Class Proceedings Act became law in 1993. British Columbia and Quebec have since followed with their own versions. Class action, or mass tort, law is designed to provide access to justice for individuals who might not otherwise be able to afford legal representation. Charles Wright, a lawyer with the London, Ont. law firm, Siskind, Cromarty, Ivey & Dowler, a leader in class action cases, explained the law.

"The legislation has three objectives. It provides access to justice for those who can't afford to pursue their own lawsuits by allowing them to join a group. It also provides for judicial economy by allowing the court to decide the matter with one case instead of many similar cases. It also promotes corporate responsibility. The idea being that if a company hurts lots of people a little bit it wouldn't be worth it for, say, one million people to sue for $50 each. So the company could theoretically get away with a $50 million mistake or misdeed," he sid.

One aspect of class action law that is especially important to residential school survivors is that, unlike in other types of cases in Canada, in class actions lawyers are allowed to accept their fees after the case is completed. "Class actions are an exception," Wright said. "Contingency fees are specifically allowed."

People who reside in provinces that have no class action legislation can join lawsuits that are filed in a province that does. But ethical restraints placed on lawyers about soliciting business make it difficult for potential plaintiffs to find a lawyer to help them. Wright said his firm is not involved in a residential school case and he didn't know of a firm that was. But several law firms are rumored to be signing up members for class actions. Those contacted by this newspaper for confirmation were hesitant to comment.

Some Indigenous leaders are worried about the prospect of lawyers encouraging survivors to take the government to court.

Viola Thomas, president of the United Native Nations of British Columbia, a group which represents the off-reserve residents in the province, cautions that lawyers who are only interested in winning the cases and the cash awards that come with them can do a lot of harm.

"We're dealing with people who are already marginalized," Thomas said. "And in some cases they're being encouraged to get rich off their pain. The only reason these individuals should move ahead with these cases is to proceed with their healing. When lawyers are forcing these people to re-live their trauma, they'd better have the proper support mechanisms in place."

Several cases have been documented where school survivors who relived their school experiences committed suicide shortly afterwards. Thomas wants to make sure that doesn't happen to other survivors as they go through the civil litigation process.

Thomas also worries about the lack of coordination of cases. She fears many cases in front of many judges with many lawyers may ead to a mistake which could create case law that would hurt all the other cases. She advocates a national class action representing all survivors and criticizes the national Native organizations for not working to take the confusion out of the situation.

"We're living in very scary times," she said. "Everywhere you look there are assaults against our rights. Where are these political leaders? What are they doing?"

Who's doing what for whom?

National organizations consistently say they don't have budgets to deal with problems of this magnitude

Raymond Paskimin, a former member of the Thunderchild First Nation band council in Saskatchewan, is waging a one-man campaign to get people in touch with lawyers and ready to sue for compensation. He's been travelling throughout western Canada in a motor home, visiting Aboriginal communities and talking to people about their options.

"There is a service here that needs to be done," he said. "Of the 10 people in my family who attended residential school, there are three left alive. The system was very devastating to my family. I have an interest in justice being done."

Paskimin said he had launched his own legal action relating to alleged sexual abuse he endured during his 10-year stay in the Onion Lake Indian Residential School. He began his 10,000 km. odyssey to communities in Saskatchewan, Alberta and British Columbia shortly before the Indian Affairs minister made her apology last January. He said the apology just added more incentive for him to continue.

"I blew a fuse when I heard they were going to provide $350 million for counseling money," he said. "What the hell good is counseling money? Part of the healing is standing up and fighting back. Going for counseling is more like acting like a victim. Fighting for justice is the best therapy. It gives credibility to a person's existence."

Ed Metatawabin agrees. He won't join a class action suit because he wants to take the government on face-to-face.

"Part of the