The federal government, not aboriginal plaintiffs, is behind many of the residential schools claims facing the Anglican Church.
Tony Merchant, a Saskatchewan-based lawyer who represents about half the aboriginal plaintiffs across Canada, says the vast majority of his clients are not interested in suing the churches and did not name them, only the government.
Ottawa has then counter-sued, naming churches and even some First Nations groups. A government spokesman defended the approach, saying Ottawa wants everyone involved ?at the table.?
For example, court cases involving seven Natives who went to St. George?s Residential School in Lytton, B.C., were set for the end of March. Only one named the church initially. The government has pulled the church in by naming it as a third party in the other six.
This comes at the same time as the government wants the churches to participate in alternative dispute resolution pilot projects, said Archdeacon Jim Boyles, the church?s general secretary. ?At the same time as they are seeking our co-operation, they are playing hardball with us in the courts.?
The Anglican Church isn?t the only church the government is pursuing.
?The federal government seems intent not only in terms of identifying Catholic organizations but identifying multiple Catholic organizations in any one suit,? said Gerry Kelly, an adviser on aboriginal issues with the Canadian Conference of Catholic Bishops. ?We have one case where the federal government third-partied 20 different Catholic organizations. That?s the level of aggression.?
The government has even named the Roman Catholic Church as a whole in one suit, Mr. Kelly said, which does not even exist as a legal entity.
Mr. Merchant accuses government lawyers of setting up roadblocks to delay the lawsuits. He estimates his firm handles half the aboriginals suing across the country ? estimated at about 6,000 people. He says they are charging contingency fees of 30 per cent.
?There?s a number of reasons for delay,? Mr. Merchant said. ?One, we?ve had 16 people die. They get nothing. Two, the standard insurance company reason for delay is that people then get sick of it and you can get them to settle for less money. You just wear them out ?The next financial motive is, why pay now when we can pay in a year, or why pay now when we can pay in three years??
Mr. Merchant charges the government has stopped settling and is pushing everything to litigation.
?That?s blatantly untrue,? responded Shawn Tupper, a residential schools spokesman with the Department of Indian Affairs. The government continues to offer settlements in appropriate cases, he said. But ?we need to validate the claims, not just issue cheques.?
The government is issuing third-party claims to deal with all the variables, he said, including time frames and which staff have been accused. ?We are of the view that there are periods of time the churches bear partial responsibility. We want you at the table to deal with what you?re responsible for.?
That extends as far as naming parent advisory committees of First Nations groups which existed in the latter years of the schools? operation. They may share responsibility for some employees, Mr. Tupper said. ?It depends on who?s been identified by the plaintiffs. They may name a bunch of people ? cooks, teachers, administrators. You end up with a variety of organizations involved.?
The government knows First Nations groups don?t have a lot of money but it wants to present to the court the clearest view of what went on, he said. At the same time, it is trying to get early discussions going to minimize costs.
According to Prof. Jim Miller of the University of Saskatchewan and author of Shingwauk?s Vision, a book about residential schools in Canada, the federal government has been extremely slow to settle up with aboriginals. Native peoples only began launching lawsuits after the government refused to formally apologize or offer any help, he said. Traditionally, aboriginals prefer restorative justice.
?The government was unhelpful, much preferring to make the church the scapegoat,? Prof. Miller said. ?It is very easy to pin the rap on the churches. Not many people cared about the churches anymore.?
Ottawa refused to settle many claims or to apologize formally until January 1998. Indeed, it was cheaper to litigate than to settle; that is, until the claims reached into the thousands, Prof. Miller said. That?s no longer the case.
While the churches undoubtedly deserve a portion of the blame for the residential schools they operated, he calls the proportion of damages allocated by a British Columbia Supreme Court justice in the Lytton case ? 40 per cent government and 60 per cent to the Anglican Church and the Diocese of Cariboo ? inappropriate.
?The government has constitutional responsibility for Indians. They fashioned the treaties, pursuant to which the government fashioned the overall policy ? The government had a responsibility to inspect and ensure its charges were properly being served. They had a fiduciary responsibility to the aboriginals. They did not discharge it ? For political, financial and other reasons, the government should bear the lion?s share. The people of Canada, the government of Canada, were responsible for the policy.?
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