Residential schools: assessing the litigation and settlement process

Canada’s historic, estimated $5-billion agreement to settle its sordid past and shameful legacy of physical, mental and sexual abuse in the Indian residential schools system may be long overdue, imperfect, and largely unfamiliar to most Canadians but the agreement is "a fair and honourable one,” said the Honourable Justice Frank Iacobucci, retired justice of the Supreme Court of Canada.

“It didn’t erase my shame [as a Canadian], for the legacy but it gave my conscience some comfort in having the agreement.”

Iacobucci, a former law school dean, U of T provost and interim president, was the keynote speaker at the Faculty of Law’s January 18, 2013 conference that invited academics, Aboriginal leaders and activists to assess the momentous agreement five years into its implementation.

The agreement includes financial payments, the launch of the Truth and Reconciliation Commission (TRC), and a formal apology by the Canadian government as a settlement for the century of systemic racism and abuse involving more than 150,000 Aboriginal children. These children were taken from their families and placed into a system of boarding schools, “as it was infamously said, ‘to kill the Indian in the child,’” Prime Minister Steven Harper said in his June 11, 2008 apology on behalf of all Canadians.

Iacobucci was appointed in 2005 to represent the federal government under Prime Minister Paul Martin in its discussions for a resolution of the lasting impact of the system. His appointment came on the heels of more than a decade of lawsuits filed against the federal government and Christian churches involved in running the schools and increasing activism led largely by National Chief Phil Fontaine of the Assembly of First Nations.

The issue largely remained under the public radar, and only really hit the Canadian consciousness in early 2000, said Dean Mayo Moran, who opened the conference. In her introduction of the first speaker, Chief Fontaine, she spoke of his visit about a decade earlier to the law school and how “he had a lasting impact on a whole generation of law students, professors and now law deans.”

Fontaine shared his story at the conference and spoke of his 10 years in two residential schools in Manitoba as one of 10 siblings to go through the system. So too did his parents and paternal grandmother, who went to an industrial school, the precursor to the residential school.

“It shaped me in many ways. I was unfair, bitter, disrespectful. I became an alcoholic….I was indiscriminate with my anger.” After he became chief of the AFN, it was clear to him that to chart the First Nations path into the future, he had to help Aboriginals face their past.

“We had to do something about the residential schools issue.”

Not all his fellow Aboriginals agreed with his activism, however, and he faced resistance.

“There was denial, and pushback. ‘What will white people say about us now? They’ll be even more judgmental,’” Fontaine explained to an audience of more than 200 at the law school. “A couple of women chiefs came to me weeping, not because of my words, but because of their own experiences….There was fear. Of course, the rest is history.”

He lauded the work of Kathleen Mahoney, human rights lawyer and chief negotiator for the AFN, and Justice Iacobucci, “who demonstrated how important human dignity was in the pursuit of justice.”

But in the quest to remedy such a historic injustice, there were challenges, said Iacobucci: how to achieve agreement among numerous parties; how to obtain court approval; and, finally, implementation. More importantly, the agreement had to settle non-financial matters as well, such as “loss of parenting.”

“That was the singular more important loss suffered," said Iacobucci. "Aboriginals lost the chance to observe what parenting was all about. And they were told they were not good parents.”

He spoke of the pressures of signing an agreement in principle, as survivors were getting older and the death rate was climbing, sometimes to more than four a day, or about 1200 a year. And with every death, a claim expired as well.

Iacobucci credits the government’s “sea change” in 2005 to the AFN’s report mainly authored by Mahoney.

“It was the building block…for a submission for a comprehensive approach,” said Iacobucci. “Up until this point, the government was contesting the claims.”

Then, to complicate matters further, there was a change in government. But Prime Minister Harper did approve the agreement in principle reached under Martin’s government, which advanced $8,000 to the elderly survivors. There weren’t even any assurances that a final agreement would be reached, he added.

“This was a remarkable gesture,” said Iacobucci. “In my opinion, it was absolutely critical for the government to show good faith and its seriousness for an agreement.”

Iacobucci also highlighted the importance of collaboration. The negotiations were kept strictly confidential, in spite of the number of people involved.

“Not one person breached the confidentiality agreement, to my knowledge, although there were many temptations. No one played games,” said Iacobucci. And he lauded the lawyers and the judiciary during the process. “The judiciary didn’t sacrifice its independence, but came up with a collegial approach. And I salute them.”

Time, however, continues to run out, and the pressures have now been exacerbated in the reconciliation phase, said Mahoney, a professor at University of Calgary law school, during her talk.

“More survivors are dying…reconciliation is the final piece for solace.” In fact, many speakers spoke of the Truth and Reconciliation Commission as the most important part of the agreement.

“Litigation can play an important role—it brought the issue to everyone’s attention,” said Rev. James Scott, who represented the United Church of Canada in the settlement agreement process. “But the survivors demanded that they be heard.”

But in the world of transitional justice and by comparison internationally, Canada’s TRC  is weak because it lacks subpoena powers, doesn’t call witnesses and isn’t televised, as was the case in South Africa, countered U of T political science professor Courtney Jung.

Mahoney responded that Canada’s TRC process was based on the counsel of Aboriginal advisers because the survivors were not interested “in an adversarial approach,” which subsequently led to the disintegration of South Africa’s process.

The legal system is adversarial, said Carrie Menkel-Meadow, of the University of California, Irvine and a world-renowned expert in alternative dispute resolution. “But that’s not the way to heal.”

Still, in the shadow of the Idle No More movement, the overall mood was hopeful.

Said Fontaine: “I’m optimistic that all will work out well for Canada, and First Nations in particular."

This is something that Aboriginal Elder Cat Criger alluded to in his opening prayer: “When we all speak, think and walk from our heart, everything will turn out OK.”