Talks now focus on alternatives to court

The federal government and churches involved in native residential schools negotiations are now wrangling over who should pay for “alternate dispute resolution” processes and whether the churches can guarantee that they will pay a portion of out-of-court abuse settlements.

Last October, Deputy Prime Minister Herb Gray announced that talks on limiting the churches’ liability in residential schools lawsuits had stalled and that the government had decided to pay 70 per cent of proven out-of-court settlements related to the schools.

As of early January, no new negotiating sessions were scheduled but several moves had occurred within the alternate dispute resolution, or ADR, projects underway. In late November, the Anglican church gave formal notice to organizers of an ADR project in Regina that it would not contribute to legal and other process costs.

General Secretary Jim Boyles said the church doesn’t have the money. “We are facing 1,200 cases. We want our resources to reach the victims and not be eaten up in process costs,” he said.

He also said the Anglican church is prepared to be present at ADR sessions as an observer and to offer pastoral care if a plaintiff desires it. Archdeacon Helena Rose Houldcroft, of the diocese of Qu’Appelle, had been attending the sessions in Regina, but was asked to leave in mid-December. “The government no longer wants the church at the table. They said they will waive (church contribution to) process costs but they want the church to guarantee 30 per cent of any settlement. We can’t because there is no cap,” said Archdeacon Houldcroft in an interview. The plaintiffs also agreed that she should leave, Archdeacon Houldcroft said.

Of the three ADRs that involve the Anglican church – the two others are also in Saskatchewan – none has reached a conclusion or awarded a settlement, said Archdeacon Houldcroft. The Elmer Crane project seems to be moving in relatively speedy fashion and she said she expects the first settlement could be made by late summer.

ADR, said Archdeacon Boyles, is not necessarily a less-expensive process than the courts. “We believe ADR is preferable to the adversarial setting of the courtroom. It can lead to a resolution more quickly and can provide a setting where the claimant can be offered more support,” he said.

In an ADR setting, plaintiff and defendant must agree on the appointment of a fact finder, rather than a judge, and agree on various ground rules. One of these rules in the current ADR setting includes an agreement by the aboriginal plaintiff that if he/she receives a settlement, he/she will not pursue a court case.

The fact finder, who has a legal background, meets with the claimant and a stenographer and takes the claimant’s story, but must apply a burden of proof similar to a court, Archdeacon Houldcroft said.

The fact finder then makes a report and may make a judgment, she said. Attorney for the two sides then negotiate a settlement, she said. If the plaintiff rejects the settlement, he/she may go to court.