Ottawa changes framework for Residential School compensation claims

Catholic New Times, Jan 4, 2004 by Janet Somerville

The federal Government has announced a new policy framework for negotiating compensation and reconciliation agreements with former students of Indian Residential Schools. Nearly 12,000 individual litigants are claiming compensation for harm suffered at the schools, which were mandated and supervised by the Government of Canada but operated by personnel from one of four "historic mission churches" within Canada--Anglican, Catholic, Presbyterian or United.

The policy framework was released on November 6 by Ralph Goodale, the federal Minister responsible for Indian Residential Schools Resolution Canada. Its keystone is a modified Alternative Dispute Resolution (ADR) process, which the Minister called "a humane approach to settling outstanding claims in a fair, timely and effective fashion."

The new policy drops an intensely controversial element that the federal Government was insisting on earlier this year when it signed agreements with the Anglican and Presbyterian churches. Those agreements restricted the Alternative Dispute Resolution process in such a way that it could only address charges of physical and/or sexual abuse, excluding larger issues like loss of language, culture and identity. Any claimant entering an ADR process would have to sign a release agreeing to refrain from any future legal action on these larger questions. Locally led and federally funded programs, not class action suits and courts, are Ottawa's preferred way of dealing with the intergenerational harm now judged to have been done by the Indian Residential Schools.

The Assembly of First Nations called the release form in the earlier policy "unconscionable" and declared that no one should sign it. The Anglican Council of Indigenous Peoples was outraged, seeing the release as equivalent to "signing away our birthright," and condemning the church's acceptance of it (see CNT story of April 20, 2003). The United Church of Canada declined in advance any agreement with the government if the release, as then worded, was part of it.

The new ADR process is still restricted to claims for physical or sexual abuse and "wrongful confinement." But now, says Minister Goodale, "claimants will not be precluded from the possibility of pursuing future litigation for loss of language and culture, if and when the courts create a basis for such suits."

In a statement released on November 6, the Assembly of First Nations judged the new policy framework to be "a start", but insisted that "it must be expanded into a comprehensive plan ... that addresses the cultural and inter-generational impacts" of the residential schools, not merely the incidents of physical or sexual abuse. Residential school survivors should have a central role in the work, the statement added.

"Alternative Dispute Resolution is a good approach and certainly much better than the courts," said National Chief Phil Fontaine. "Yet the approach announced today ... will remain incomplete until it deals with issues of culture and identity ... For many survivors, compensation is only one part of the answer. What we further need is an approach that allows survivors, Elders, counselors and communities to be involved in the healing process."

The (Anglican) Council of General Synod has welcomed the federal change of mind. On November 10, the Council passed a motion expressing appreciation for the changes proposed in the release that claimants would be required to sign. The United Church of Canada is also supporting--cautiously--the changes embodied in the government's new policy framework.

"The decision about the release is crucial to the viability of the whole process," said David MacDonald, the former United Church minister and federal cabinet minister who represents his church in negotiations with Indian Residential Schools Resolution Canada. "It's disquieting, though, that the wording of the new release is not ready yet. We know it won't involve signing away any future action based on loss of language and culture, but we don't know what else it will say."

"There's been a lot of consulting," MacDonald continued. "The government has been working hard on this. And it became clear that even the native people closest to the government would never agree to a release that would sign away language and culture issues. So the government saw it just wouldn't fly if they kept insisting."

Gerry Kelly, director of the Aboriginal Affairs Secretariat for the Canadian Conference of Catholic Bishops, welcomed the changes announced in November. "It's too early to tell, but I think the new framework will work adequately for some of the Catholic organizations (affected by Residential Schools litigation)," Kelly told CNT.

But he added, "The best that can be expected from a process like this, focussed on financial compensation, is that it will be fair, safe, and expedient. It's not a transformative process. It keeps people apart from each other, even more than courts do, and you end up with an arbitrated number of dollars. What you need for transformation, for reconciliation, is an unhurried face-to-face conversation, close to where the events happened, and deeply personal. Some wonderful examples of such conversations have been happening lately, especially in Manitoba through Return to Spirit seminars. The Catholic Aboriginal Council will have a statement to make, I hope early in 2004, about reconciliation and the need for the church to be part of it."