Ottawa, not Natives, behind many lawsuits.

Churches face third-party claims

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."

In other residential school news:

* The church plans to hire an Ottawa-based firm to lobby politicians on its behalf. Archdeacon Boyles spent two days talking to upper-level bureaucrats in Ottawa in February with a Saskatoon-based lobbyist. The church needs experts to advise it in dealing with government, he said. "We're amateurs at that."

* The courts are attempting to come to terms with huge numbers of lawsuits. In Saskatchewan, eight representative cases are being "fast-tracked" this spring to set precedents for the others. The Anglican Church is involved in one case.

* The United Church of Canada has received a $20-million bequest from the estate of a Canadian-born doctor. "There's certainly no question that, given the financial stresses the church is under, a bequest like that is very helpful," said Rev. Brian Thorpe, the church's residential schools spokesman. But potential damages are so great that "in the long term, it doesn't change things that much." The church still faces about 350 claims across the country.

* The pace of alternative dispute resolution is beginning to pick up. The government wants to run 12 pilot projects across the country. Two involving the Roman Catholic Oblates are now under way. As many as another seven are in the works, just one involving the Anglican Church. Parallel to the ADR process, the government and churches continue to negotiate how much each will pay, both to run the project and to settle claims.

* The Anglican Church has been named in a new class action lawsuit, its third, on behalf of all students who attended the residential school in Alert Bay, B.C.

* The Anglican, Roman Catholic and Presbyterian churches have polled Canadians through the Angus Reid Group, which has found four in five Canadians aware of the residential schools litigation issue, at least superficially. Focus groups of Anglicans have also been held in Hamilton, Calgary and Halifax.