Natives, churches, feds seek way out of lawsuits

Published December 1, 1998

Natives, national churches and the federal government are meeting to explore alternatives to battling in court over the legacy of residential schools.

“All the indicators are that a momentum is building and good things are happening,” says Shawn Tupper of the Department of Indian and Northern Affairs.The Anglican, Roman Catholic and United churches are all facing scores of lawsuits from Natives who describe years of abuse and loss of culture. More than 100 claims are pending against the Anglican Church.

Plaintiffs, lawyers, the government and the churches have all been invited to a series of seven meetings being held across Canada “to explore common ground,” Mr. Tupper said, and to “identify ways and means we can resolve the legacy of abuse without going through the trial system.”Mr. Tupper believes the first meeting in Kamloops, B.C., helped lead to a settlement reached in late October between 11 plaintiffs, the Roman Catholic Church and the government over B.C. residential school, St. Joseph’s.It’s the first out-of-court settlement reached in which both the Crown and church were defendants, Mr. Tupper said.

The Kamloops meeting allowed participants to see they were not that far apart, he said.The settlement involves an undisclosed amount of cash, and a commitment by both the government and the church to apologize and participate in a healing circle and to meet the ongoing counselling and support needs of plaintiffs and their families.

Archbishop David Crawley of Kootenay was at the Kamloops meeting that took place over three days in late September and early October. He too is enthusiastic about the potential to find a way around litigating what could potentially amount to thousands of claims from former residential school students.”It was the first time the churches, the First Nations and the government met face to face to talk about it all,” he said. “There was an enormous amount of pressure to move to alternative dispute resolution.”The pressure came from all three parties, he said.

For the churches and the government, there are the growing number of lawsuits, legal fees and potential settlements to pay, along with the concern with trying to help people who were injured.”The confrontation (litigation) creates is antithetical to how we feel we should be treating people,” Archbishop Crawley said.

The Natives at the meeting also wanted to seek alternatives, he added. Some had been or were plaintiffs in cases. Indeed, it made sense that the meetings began in B.C., he said, since several cases have already gone to court there.”Many of the plaintiffs are very fragile people,” Archbishop Crawley said. “They have done an enormous amount of work to restore themselves. They find the legal process damages that. They are too vulnerable.”Until now, he said, there has been no place for aboriginals to enter into discussions with churches or the government except by filing a complaint.

A B.C. chief and lawyer suggested another system in which counsellors, elders and family would be involved at all stages, Archbishop Crawley said: first, when the person tells the story; next, when the person engages with the government and church and finally, when options for healing are discussed. These could involve a healing circle, a cash settlement, face-to-face conversations with the abuser, counselling, going to court, or some of each.”The process itself would be costly, but it would be less costly than the litigation process,” Archbishop Crawley said.

Once an alternative dispute process is refined, a community prepared to test it will be sought, he said.The Anglican Church’s director of Partnerships, Ellie Johnson, agrees the meetings have been worthwhile but believes there is still a long way to go. Dr. Johnson attended the second meeting in Calgary, the third in Regina and hopes to be available for the final four, in order to provide a national perspective to the meetings, in addition to the local church representation.”The final goal is healing,” Dr. Johnson said. It’s very clear litigation doesn’t lead to that. The plaintiffs are saying that.”The very nature of the adversarial court system revictimizes people, she said.”There is no dispute the whole (residential) system was wrong,” she added. “When the government and churches argue, the impression is both both are trying to wiggle out of their responsibility. We need to find a way of sharing responsibility without battling it out in court.”


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