Two years after securing a residential schools agreement with the federal government that limits liability, the national church is signaling that it would like to reopen the agreement to allow claimants the opportunity to sue for loss of language and culture.
Under the current agreement – the first reached by a Canadian denomination with the government – former students whose claims are validated in an alternative dispute resolution (ADR) process are compensated for physical and sexual abuse, but they must sign a full release preventing them from seeking further compensation from the government or the church.
Saying that he believes “the time has come to change our policy and accept a partial release” in resolving native residential school claims, Archbishop Andrew Hutchison, primate of the Anglican Church of Canada, secured the permission of Council of General Synod (CoGS) to determine whether this would be “acceptable” to dioceses.
“We continue to hear loud and clear from the indigenous people that a full release is unacceptable,” said Archbishop Hutchison in a report to CoGS. “Some feel that it means that the church is denying any responsibility for loss of language and culture. ‘It is taking away our birthright,’ someone said. It is also interpreted as a denial of the importance of language and culture to dignity and identity of the individual.”
He added that the government, as well as the three other churches – Presbyterian, Roman Catholic and United – sued by native Canadians claiming abuse in the residential school system, have changed their positions and now require just a partial release.
The 2003 agreement between the church and the federal government limited the church’s liability to $25 million over residential schools litigation. It put in place an ADR process to validate claims and apportion compensation.
The Anglican Council for Indigenous People (ACIP), which boycotted the signing of the agreement in 2003, welcomed the primate’s announcement. “It’s been ACIP’s position from the time of the agreement signing,” said Donna Bomberry, General Synod indigenous ministries co-ordinator.
CoGS, however, offered a preview of how difficult it might be to sell the idea of reopening the agreement to dioceses which are still paying their portion of the settlement and are fearful of additional liabilities.
“I think the spectre of what has been referred to as ‘the mother of all lawsuits on loss of language and culture’ has been something that’s been hanging heavily over the head of dioceses,” said Betty Livingston, adding that her diocese, Huron, has spent more than $1 million in lawyer’s fees to defend itself in school lawsuits. She added that while the diocese had welcomed the signing, it was warned that the issue wasn’t over. “I’m being brutally honest here, but one of our (native) members said, ‘you haven’t seen the end of this yet, we’re going to strip you bare over loss of our language and culture.'”
Archbishop Hutchison said, however, that any additional risk would be “very minimal,” citing that if the courts find that loss of language and culture should be compensated, General Synod would assume “all responsibility and would assume full responsibility for any finding that a diocese was responsible.”
It will be the government and General Synod who would negotiate to determine the proportion that each would have to pay, said Archdeacon Jim Boyles, the church’s General Secretary. “Our position … is that our percentage would be zero because the policy about language and culture was a government policy.”
To date, no court has ruled that loss of language and culture is compensable.