Notes from a keynote speech by Justice Iacobucci at the Federation of Asian Canadian Lawyers (FACL) Fall Conference.

Grew up in the East End of Vancouver, where there was lots of diversity of people from many backgrounds.  Justice Iacobucci noted that he entered the law exactly 50 years ago, in 1959, when he graduated from UBC.  There wasn’t a lot of visible minorities in the profession back then. There also wasn’t a lot of “funny names” in it back then.  He recalls that when he told by one of his undergraduate professors that he wanted to do law that he shouldn’t go, “You don’t have the right name for it.”  But another told him that he should, because “Canada is changing.”

Canada is changing, and the proof is the numbers of visible minorities that are entering law, a profession that historically has not been welcoming to women or minorities. But there is more to do with inclusiveness, and creating strength in diversity.

He started by reminding us all that everyone in Canada can be put into two groups – native Americans, and the rest of us are immigrants.  It’s just a question of timing.  We’re all immigrants.  Many come with values, and not much else going for them.  But those values, with an opportunity, can accomplish a lot.

Not all of us have had those opportunities.  The focus of Justice Iacobucci’s talk was on the Aboriginal Residential School file, one of the most challenging files he was exposed to.  The talk was not about the legal aspects, but rather how a country deals with its past in a way that is fair and honourable.

Most of the residential schools were in the West, with some in Ontario and Quebec.  There were about 130 schools with approximately 130,000 students, but the records are incomplete. There were similar schools in the U.S. and Australia.  The intent was to assimilate these populations into society by forcibly removing them from their families and putting them in schools for up to 12 years.  They were not allowed to retain their language, culture or religion.

Some Canadian officials described it as “beating the Indianess out of the children.”  Another said, “to elevate the status of the Indian from a savage,” a role akin to one played by Christian missionaries in various parts of the world. Egerton Ryerson said in his 1847 report to the Legislative Assembly of Upper Canada,

Their education must consist not merely of the training of the mind, but of a weaning from the habits and feelings of their ancestors, and the acquirements of the language, arts and customs of civilised life.

Four major denominations of of churches ran the schools.  The Roman Catholic Church operated about 70% of them, followed by Anglicans, United Church, Presbyterians, and one Methodist school.  Although schools made children feel inferior by second-class children, this was compounded by the view of children during this time.  “Spare the rod, and spoil the child.”  Harsh treatment of  young people was commonplace everywhere.  In these residential schools the physical abuse was even worse because of the additional sexual abuse, disease, mental trauma, and separation issues about their families.

After being appointed to represent the Federal government in negotiations to create a settlement, he visited the Saugeen nation in Manitoba, where he met a Chief whose father was on his deathbed and told him,

I apologize, because I never learned to be a parent, and I find it difficult to say I love you.  So please forgive me.

Most of us can think about our parents and siblings, and are blessed with their love and support.  Even having bad parents is not as bad as this, because people rise above these issues. To deal with situations like this during the formative years creates an enormous trauma to an entire community.

Another story he heard was of an 8 year-old girl who saw a car driven to the reserve by a priest, the first white man she had ever seen.  She thought he was going for a ride in the country, but he took her to a residential school, where she stayed for 5 years.  It wasn’t the beatings or the humiliation or even losing her name that bothered her.  The first thing they did was cut off all of our hair and give us numbers.

Mine was 52.  And I’ve never been able to overcome that dehumanization.

There are thousands of other stories like these that he heard.  This episode of our history was brought to the national spotlight in the 80’s when Phil Fontaine publicly shared his experiences as a student of the residential schools, including his personal experience with sexual abuse there.  [Fontaine would go on to negotiate in 2005 the Indian Residential Schools Settlement Agreement and the $5 billion Kelowna Accord, though the latter was canceled by the succeeding Conservative government].

In the following years, legal claims against the Federal government were made, over 15,000.  Class-actions were launched across Canada, eventually totaling 23.  When faced with this the government set up an alternative dispute resolution system to address claims of physical and sexual assault.  Still, a backlog quickly developed and the system could not keep up.

In May 2005 the Federal government announced a comprehensive approach to deal with the issue.  They acknowledged for the first time that there would be compensation for everyone who attended the schools, rather than leaving the claims to the courts or alternative dispute resolution system.  Essential to this move was the redress settlement made for the 21,000 Japanese-Canadians that were interned during WWII.  Justice Iacobuci noted that we were even worse than the Americans because we confiscated internees property and never returned it.

It was at this time that Justice Iacobucci identified as the Federal representative to lead the settlement discussions on behalf of the government.  Without this settlement the claims would go on for years and years, as a continual stain on our national history.  Additionally, many of these students were dying at a rate of 4-5 a day, and for them not to see some resolution of this in their lifetime just added to the injustice.

After 5 months of intense negotiations between lawyers for the claimants,  the government, the churches, and Aboriginal groups, an agreement in principle was reached by all the parties in Nov. 2005.  It was often an intense and unwieldy process, with up to 65 lawyers, who often all wanted to talk at the same time.  It was the largest settlement in Canadian history, of $10,000 for each student’s first year of residence, and $3,000 for each additional year, for an estimated total of $2 billion for all the claimants to over 80,000 former students.  Advance payments were also put in place for the elderly and the sick who may not survive the entire settlement process, which also signaled to the other parties that they were serious about the process.  Age was used as a surrogate for illness because it was difficult to identify terminal illness, so instead an age of 65 was used.

Justice Iacobucci was quite adamant,

You can never get adequate compensation for the loss of formative years in that kind of setting… It’s hard to compensate when a person loses liberty, and this was a form of freedom and liberty.

But it was, just like the Japanese-Canadian case, a symbol of saying there was a wrong, and this is an attempt to show we want to try to make amends for that wrong.

In addition to the advance payment, there was $120 million dedicated to Aboriginal healing to the Aboriginal Healing Foundation. There were quite a number of people disturbed by these experiences, which were aggravated by a number of other social conditions such as poverty, lack of training, education.  These programs were not just for the former residents, but relatives, children, and descendants who may have been affected by these issues.  Lots of changes were made to the dispute resolution system.

But perhaps the most important component was  the Indian Residential Schools Truth and Reconciliation Commission.   They looked at many models, including South Africa and Latin America.  They did not want a formal commission that would subpoena people to come, with lawyers cross-examining them, because it would create reluctance by people to tell their stories.  It was more important that history would record this episode accurately, and not sweep it under some great national carpet to forget.  $60 million over 5 years was provided for this, plus another $20 million for commemoration projects.

The lawyers played a very important role in this process, especially in bringing the public attention to the issue.  But they also had to deal with the issue of their fees, which was not an easy issue to deal with, but an important one.  The question of liability of the churches, which would have bankrupted many of the churches if they were held responsible for the entire amounts of claims.  But they did have to bear some responsibility, and it was decided they would contribute $125 million.

After the agreement in principle, the Martin government was replaced by the Harper government in 2006.  The new Minister of Indian Affairs, Jim Prentice, wanted to ensure they were in agreement.  Although they accepted it, they made some changes, and the final settlement was made in the Fall of 2006.

Class-action settlements have to be approved in courts though, and these claims were spread all across Canada in 9 different jurisdictions.  The judges met in 2 occasions in Calgary to resolve any remaining issues.  Once it was approved by the court, it had to be advertised.  Many of the potential claimants were in remote and northern areas of Canada that were largely inaccessible, even by major forms of media, so the court had to supervise the process with notices going out in unique ways.

The approval rating was phenomenal.

Of the about 80,000 class-action members, only around 350-400 decided to opt out.  If more than 5,000 had opted out, the provisional agreement would have fallen apart.

An apology was brought up on several occasions, which Justice Iacobucci had several objections to.  It’s a prerogative of the government to apologize, not the prerogative of a negotiator to negotiate.  To negotiate an apology robs it of any genuineness, and vulgarizes it as an element of bargaining which lacks sincerity.  Finally, an apology could only be announced after a settlement.  If an apology was announced in advance of a settlement it would be used against the government of the day and compromise their legal position.

He was in the House of Commons when the Prime Minister spoke, and it was one of the most moving moments he has seen.  The Chiefs and representatives of our Aboriginal peoples were there to hear, we are sorry, this was wrong.  It was a moment to remember.  He had never been prouder to be a Canadian, because through so much of this process he was rather ashamed of what Canada had done in our name.

The apology taken together with the settlement was a way of Canada saying genuinely sorry, and a we hold out our hands in the hopes of  forgiveness.  And we’re trying to find a way for us to live in peace and harmony…

[Because of this,] it represents the most satisfying experience I’ve had in my time as a lawyer.

He thanked the government, both past and present, for the opportunity to be involved, and the parties involved to reach a settlement.  He particularly thanked former National Chief Phil Fontaine for his commitment and leadership.

No doubt the legacy of Indian residential schools have a dark side…. but to recognize that history is a necessary step for all of us to build a Canada that all of us, Aboriginal and non-Aboriginal, can be proud of, and for Canada to be a model for the indigenous peoples of the world.

Cross-Posted from Slaw