No truth, no reconciliation for aging residential school survivors

No truth, no reconciliation for aging residential school survivorsJuly 23, 2010
Linda Diebel

Justice Murray Sinclair, chief commissioner of the Truth And Reconciliation Commission, reaches out for a hi-five at the Truth and Reconciliation Opening Ceremonies in Winnipeg Wednesday June 16, 2010.
JOHN WOODS/Toronto Star

They’re dying quickly now, the aged survivors of an Indian residential school system in Canada that yanked tens of thousands of aboriginal children from their families and sent them far away to Christian schools to be stripped of their identity. For more than a hundred years, it was Canada’s official policy: “Take the Indian out of the Indian,” as Sir Duncan Campbell Scott, head of the Indian Affairs department, defined his mandate early in the last century.
Cree elder Gordon Williams, a residential school alumnus, retired Presbyterian minister and adviser to the special commission set up to document what happened to these children, told the Star that between five and 10 survivors are dying every week. He puts the number as high as 5,000 lost since a negotiated $2 billion court-ordered agreement created the Indian Residential Schools Truth and Reconciliation Commission in 2006.
For them, no truth, no reconciliation.
The saga of truth and reconciliation is fraught with scandal, power struggles, firings, lost friendships and soul-destroying delays. The second and current set of commissioners, headquartered in Winnipeg, haven’t even begun to hire critical staff — having just finalized the recruitment process — and appear hobbled by federal procurement and hiring rules.
There seems little chance the molasses-pouring pace of work will change anytime soon. The first commission got off the ground in June 2008, and imploded within four months. Tom McMahon, general counsel for the current commission — at work for over a year — said in an interview Thursday: “We continue to be in start-up mode . . . It’s taking longer than we would have liked.”
The residential schools agreement settled the largest class-action suit in Canadian history, brought against Ottawa and the churches (Roman Catholic, Anglican, United and Presbyterian) by former students and their families. They claimed physical, sexual and psychological abuse, including the annihilation of identity.
Think about our nation’s tradition of residential schools, enforced by the clout of the RCMP. Non-aboriginal Canadians might imagine being told to have your kids — including perhaps your youngest who, at 6, has never been away from you before — ripped from you and taken away, in an unknown number of cases, never to be seen again. Aboriginal leaders see clearly the impact in the raw lives too many have lived on the streets, or the link between the recent 13 teen suicides in James Bay and Hudson Bay communities and the struggle for identity and self-respect.
Says Williams, from Peguis, Manitoba, “You are taught you are somehow not as good as everybody else . . . you lose your self-esteem.”
In the words of the Scott grand plan: “Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian problem.”
The Indian residential schools settlement has been heralded as a shining achievement, a court-ordered pact that included a Truth and Reconciliation component to document “historic findings” and fix the fractured relationship between aboriginal and non-aboriginal Canadians. It set up an entity to handle claims for financial compensation and would win a prestigious international award for conflict resolution.
But, according to critics, there are problems.
It is, after all, a government department with current chair, Murray Sinclair, former justice of the Manitoba Court of Queen’s Bench, a deputy minister who reports to Indian Affairs Minister Chuck Strahl.
“When you are under the aegis of the federal government, your ability to operate is very difficult,” says Williams, in a telephone interview. “You’re under all their rules and regulations that are so well-defined. There is not a great sense that time is important to them and, when we are losing so many survivors — for us it’s just critical.”
Adds McMahon: “We’re doing our best within the rules, but we are feeling the weight of the government structure.”
The three-person commission was supposed to be independent. Certainly, that’s how its first chair, Justice Harry LaForme, now back on the Ontario Court of Appeal, saw it, relying on the agreement and subsequent orders-in-council. Undone by a turf war over his authority as chair, the perception the powerful Assembly of First Nations opposed him and, by many accounts, Ottawa’s big thumbprint, he resigned in October 2008. By the following June, new orders-in-council repealed the existing orders, sweeping the entire commission under Ottawa’s skirts.
“They are being treated like children,” said a veteran lawyer on aboriginal issues. “The spirit and letter of the whole concept of independence is missing.”
Here’s how LaForme’s commission worked, as pieced together through dozens of interviews with sources and on-the-record interviews with people close to the entire commission process. Newly appointed in 2008, he hired two lawyers and asked for an office in Toronto. The government gave him and his people cubicles in the Indian Affairs offices on St. Clair, where, according to sources, their knees hit the cubicle walls when they tried to work.
Few want to be named in the climate of lost funding that haunts aboriginal groups. On June 11, 2008, Prime Minister Stephen Harper apologized in Parliament on behalf of Canada to residential school survivors, a precursor to new beginnings. But with apology and self-congratulations still echoing, his government cut off funding in its March 2010, budget to the very aboriginal groups set up to administer to survivors. The Ottawa-based Aboriginal Healing Centre loses its last federal money — and with it, some 147 national centres and projects — in 2012.
Another legal expert close to the schools issue argues there must be arm’s length between the commission and a government that is, after all, among the perpetrators of the system of residential schools in the first place. Says the lawyer: “You learn two things in law school. Something has to be independent and it has to be seen to be independent. . . Justice must be done and be seen to be done.”
Shortly after his appointment, LaForme promised survivors: “Let us be clear at the outset: The commission will operate independently from the government, the Church and First Nations and other Canadians.”
Frank Iacobucci, the former Supreme Court chief justice who served as federal representative in settlement negotiations, and then acted as facilitator to negotiations to put the commission back on track and a member of the new commission selection panel (along with the other parties to the settlement), says the commission is independent, subject to accountability requirements for money received from the Canadian people.
That’s where another lawyer differs: “This is not taxpayers’ money. This is survivors’ money pursuant to a court order.”
Sinclair has his own take on the issue. “We are absolutely not independent,” he told the Star from Winnipeg. “I don’t think we should be functioning independently. We should be functioning in a very dependent way on the parties because, in the long run, reconciliation has to be achieved by the parties, and not only one.”
Last November, however, Sinclair complained in a Star interview about Ottawa’s micromanaging. “I think it’s fair to say we are not where we wanted to be by this point because we have spent much of our time trying to redefine the relationship we need to have with the government.”
Mike DeGagné, executive director of the Aboriginal Healing Centre, says Sinclair must be mindful of criticizing Ottawa. “He chose to become a deputy minister. It was his choice. He is Ottawa . . . and he had legions of people telling him not to do it.”
Sinclair has other problems. There are problems getting records. They have a $60 million budget to cover the country in five years, with the first report due in 2011, and he needs transcripts of survivor testimony to the compensation arm of the settlement agreement.
Says Sinclair: “We’re running up against privacy legislation, and people who think we’re not entitled to have copies of those things.”
He tells them: “We are they. They are us . . . why would they think somehow they would have to withhold that from us?”
As well, acccess to church documents doesn’t appear quite as “unfettered” as LaForme envisioned.
Four months ago, John Milloy, commission director of research, expert on residential schools and a history professor at Trent University, gave an interview to the university newspaper, Arthur.
“The churches are not being cooperative at all. The Catholics are especially wary,” he said. “They might say, ‘If we give you the documents, John, and they’re the diary of priest so-and-so and this opens him up to liability’ — because he was buggering boys in the basement and that sort of thing — ‘and he sues us (the church), we’re in all sorts of problems.’ ”
In the ensuing furor, Milloy eventually resigned. He declined to return phone calls from the Star.
Sinclair is positive about relations with the churches: “We’ve had some really good conversations with the churches about what it is we’re looking for. In effect, we’ve said, ‘Give us what you think we’re entitled to, tell us what you’ve got that you think we’re not entitled to, and then we’ll argue about those when the time is right.’ ”
He figures the commission will be overwhelmed just with what the churches will allow them to examine.
In essence, too, problems stem from the mandate of the commission. It does not have subpoena powers, nor the ability to grant immunity (the one tool Sinclair wouldn’t necessarily mind having). Much of its work is being done privately. At a first commission event in Winnipeg in June, guest Piet Meiring, a South African professor and clergyman, noted differences and similarities with his nation’s Truth and Reconciliation Commission — notably “in terms of immediacy, scope and making it public.”
Canadians don’t seem to know this history — a shared history — and yet evidence suggests a thirst to know.
I covered the PM’s apology in Ottawa and a cab driver at the airport in Toronto asked where I’d been. I told him the story, that for over 100 years, Indian, Métis and Inuit children were taken to Christian schools. Their hair was cut, their mouths washed out with soap for speaking their own language, they died of disease or abuse, and many are thought to lie in unmarked graves.
This man, a fifth-generation Canadian, a graduate of the public school system, with a couple of kids, was flabbergasted. He’d never heard of such a thing. “How is that possible?” he asked me. “They can’t do that.”
He peppered me with questions, and asked where he could learn more.
The budget itself presents problems. Vancouver lawyer Peter Grant, who represented 5,000 class-action claimants, says at the time of the settlement in 2006, “We knew they had nowhere near what they required to carry out their mandate and do their job.”
That takes us full circle to people waiting to address the commission, becoming old and infirm and dying before they can. Elder Williams says his experience — basically as a farm hand at a church school — didn’t strip him of his identity, but he was already 15 and strong when he arrived at school and went on to success with post-graduate degrees.
The little kids suffered, he says. “They lost their culture and themselves and then they returned to an aboriginal world they didn’t understand and that didn’t understand them.”
At parliamentary committee hearings in early 2009 — before the current commission was established — NDP MP Jean Crowder, from B.C., listened to the official Indian Affairs ministry count that 97,000 survivors claimed compensation, with 72,000 approved (average payment, $20,500), but that 20,000 had been found ineligible, and had the right to appeal.
Crowder raised the issue of survivors who were rejected “for seemingly minor reasons . . . We’ve had some people say that they couldn’t remember the name of the teacher who abused them when they were six years old, and that was the reason their claim as rejected. They’re now in their late 60s and 70s. It’s not unreasonable, I think, that they could not remember . . . .”
She demanded to know what research was being done to help these people. An official said it was very thorough but that she had to remember, “with all due respect, the people who go to these hearings are very often, as I’ve mentioned already, in a fragile mental state.”
“Well,” retorted Crowder, “they’re traumatized, and then they’re traumatized all over again.”
Unfortunate parallels with history haunt. Between 1927 and 1951, Canada enforced legislation under the Indian Act making it illegal for aboriginal people to hire lawyers to represent them in any activity related to land claims.
Under the settlement appeals process, survivors can hire lawyers, but it’s designed so that anything over 15 per cent going to the lawyer is sent for adjudication. Sounds good on the surface, according to a lawyer busy with aboriginal cases, because most work can be done for 15 percent.
He describes one case in Quebec, however, in which he spent huge amounts of time and got a particularly good settlement. He charged 30 per cent. He does a lot of pro bono work already, and with expenses, can’t afford to offer it to appeals. His client supported him and he’s waiting for a decision. But the official who questioned him taunted: “Looks like you gave him Cadillac service.”
So, he asks, are Indians entitled to only second-class service?