Residential school survivors require formal apology rules BC supreme court judge
The following story in the Vancouver Sun can be viewed as well by clicking here
Top B.C. judge urges PM to apologize to first nations
Ian Mulgrew, Vancouver Sun - December 18, 2006
B.C. Supreme Court Chief Justice Donald Brenner has called on Prime Minister Stephen Harper to apologize to first nations for the abuses of the Indian residential school system.
In a departure from the other decisions handed down by seven provincial superior courts Friday approving Ottawa's $4-billion residential school pact, Justice Brenner went a step further -- a giant step further.
"Although I am making no order and I am issuing no directions, I would respectfully request counsel for Canada to ask that the Prime Minister give consideration to issuing a full and unequivocal apology on behalf of the people of Canada in the House of Commons," the chief judge said.
"Clearly by committing to these settlement negotiations and by entering into the Settlement Agreement and the ongoing process, Canada has recognized its past failures with respect to the Indian Residential Schools. However, based on what I heard during these hearings and in other residential school litigation, I believe that such an apology would be extremely positive and would assist the objective of all parties in achieving the goal of a national reconciliation."
Brenner also suggested Ottawa consider making an appropriate statement at the opening of the truth and reconciliation commission that is part of the complex settlement package unveiled a year ago in November.
"While this is ultimately for Canada and the Commission to decide, I would suggest that such a statement delivered in the early stages of the Commission's hearings would do much to emphasize both Canada's recognition of the extent of the failure of past policy as well as Canada's desire to achieve a national reconciliation with the Aboriginal People of Canada," he said.
Brenner is one of nine judges across the country who were asked to review and sanction the federal government's offer to thousands of native people who attended residential schools run mainly by Christian church denominations before they were closed in 1996.
The two territorial courts will issue their ruling on the agreement early in the new year.
Brenner conducted five days of hearings, the most of any judge, and he elicited a litany of abuse and tragedy that obviously moved him.
Peter Grant, a lawyer involved in the class-action suit, thought Brenner's recommendation for an apology hugely significant.
"It's a powerful judgment and a good day for survivors," he said.
"That [call for an apology] is unique. A court normally doesn't do that. I work for individual survivors and communities and the question that has been raised with me again and again and again has been -- why does Canada not apologize to us when they have apologized for the Japanese internment and the Chinese head tax? You know, there's no real answer to that.
"I think it's extremely powerful that you have the chief justice of one of the provincial superior courts saying look, 'I can't order an apology, but please take this seriously.' What that does goes to showing that he recognized, he heard what these people have to say."
B.C. has the largest number of residential school attendees (14,911) among the estimated 75,000 or so still alive.
Brenner heard from more than 80 survivors and many others filed written submissions to him.
"While each had an individual story to tell," he wrote, "there were also common shared themes that ran through many of the submissions: being taken from home, often forcibly, at an early age; having their language and culture banned; and being prevented from even communicating with their siblings at the same school. They described poor or inadequate food, harsh corporal punishment and instances of physical and sexual abuse."
Most did not recover fully from the damage.
Under the complex agreement, ex-students get $10,000 for any one year, or part of a year, that they spent at a residential school, and $3,000 for each subsequent portion of a year. Those who suffered sexual or physical abuse -- and there are many of them -- are offered additional compensation ranging from $5,000 to $275,000.
Those who don't like it, though, are free to opt out and pursue individual claims against the government and the churches.
In spite of its strengths, however, Brenner said it is imperative that administrative deficiencies in the settlement be fixed.
Many survivors can't prove their attendance at a residential school because Ottawa or the churches have lost records.
Not surprisingly, the survivors -- who should each receive on average about $24,000 -- do not have a high level of confidence in the federal government's ability to fairly or properly deal with them.
Brenner and his colleagues want an autonomous supervisor or board overseeing the plan, reporting back ultimately to the courts.
"In saying this I am not critical of the efforts of the parties, including Canada, to date in this case," Brenner said. "However, what is readily apparent to everyone in this case is the necessity to avoid yet another exercise in failed paternalism, real or perceived."
And Brenner emphasized that money is not enough.
Former Liberal minister Jane Stewart read a statement of regret in the House of Commons several years ago, but the survivors told Brenner that wasn't good enough.
The Leadership Council of B.C. -- a coalition of the executive of the Assembly of First Nations (BC Region), the First Nations Summit and the Union of B.C. Indian Chiefs -- said "a formal and unequivocal apology from the Prime Minister of Canada to the Aboriginal People of Canada must be an integral part of this settlement. It is further submitted that in order to work towards achieving true resolution, the form of apology should include a request for forgiveness."
At his October hearings, Brenner seemed hung up on the fact he did not have the power to order such an apology.
"Even if the court had such power, an apology offered pursuant to an order of the court would be of doubtful value; its underlying compulsion would destroy its effectiveness," he said.
But he changed his mind after he "received many eloquent and passionate submissions from objectors seeking a suitable recognition by Canada of the inordinate suffering of the Aboriginal peoples caused by the Indian Residential School experience and expressing the hope that they could receive a full apology from the leader of Canada's government."
I say it was a courageous decision.
"There is an important cultural component to this," he explained in his judgment.
"Aboriginal Justice Systems almost always stress reconciliation. Aboriginal Justice Systems also usually stress the need to restore harmony and peace to a community. Leaving parties dissatisfied or with feelings of inadequacy or lack of completion does not restore community harmony or peace. For aboriginal students of residential schools and their families, an apology will acknowledge the wrong suffered by them and validate their struggle for compensation and redress."
He's absolutely right. Let's hope the prime minister hears him.