Canada's National Observer
July 7, 2021
By By Karyn Pugliese aka Pabàmàdiz
Warning: The information and material here may trigger unpleasant feelings or thoughts of past abuse. Please contact the 24-hour Residential School Crisis Line at 1-866-925-4419 if you require emotional support.
This is the second in a two-part series. Read Part 1 here.
If reconciliation has a birthplace, it is in the mostly beige West Block room numbered 371. On Feb. 17, 2005, a dozen members of Parliament shuffled into their seats, under sterile fluorescent lights, carrying mugs of tea and coffee.
Canadians may think that reconciliation was born of altruism. That the government gifted reconciliation to survivors in an act of contrition. But that’s not true. Every battle the survivors ever won — from the time they were children until they grew into elders — they fought hard for.
That February meeting of the Parliamentary Committee on Aboriginal Affairs was the backdrop to one of those battles. It is where three women stared down a dozen MPs and exposed the bitter flaws of the government’s compensation program. The truth about reconciliation is the government wanted to avoid class-action lawsuits. And while they were looking for a way out, a Truth and Reconciliation Commission somehow slipped in the back door.
I think everyone should know this story.
Flora Merrick, then 88 years old, her stepdaughter Grace Daniels, and her adult granddaughter Ruth Roulette took seats at the far end of a table among a ring of MPs, mostly men, a few women, all in dark tailored suits. The Indigenous women looked nervous, out of place. This was not their world.
Ruth said she’d speak for Flora and Grace, and she spread out a sheet of paper where they had written their testimony and began to read.
Flora, born on Remembrance Day 1916, was taken to the Portage la Prairie Residential School when she was five. Ten years later, her father visited to tell Flora her mother had died and to take her to the funeral. The principal wouldn’t allow it. Flora protested and cried so hard, the principal locked her in a room for two weeks. That didn’t quiet her. The punishment had the opposite effect. Flora became resentful and more resistant. She ran away, but was caught hiding in the bushes. When she was brought back to the school, the principal strapped her so severely that her arms and legs were black and blue for several weeks.
Turning now to her mother’s story, Ruth read on. Grace suffered beatings, too. Sometimes for speaking her language, which the priests forbade, sometimes for standing up for the other kids. On one occasion, the principal took her into a private room and told her to strip naked. Ruth read her mother’s words: “I was beaten severely all over my body with a strap for about a half hour… The only reason he quit was that he was too exhausted to continue.”
When Ruth read that sentence, the only reason he quit was that he was too exhausted to continue, her voice caught. She struggled to get the next words out. Parliament has a 10-minute time limit on witness presentations. Ruth pressed on, determined that every word her mother had written was spoken into the official record.
The women appeared before the committee to discuss the initial effort to settle claims of physical and sexual abuse by former students through the alternative dispute resolution process, or ADR.
The ADR had its roots in a partial (some would say, half-assed) implementation of recommendations of the 1996 Royal Commission on Aboriginal Peoples (RCAP). At the time, thousands of survivors were lawyering up and launching individual civil suits against the government for their treatment in Indian residential institutions. RCAP asked for a public inquiry, public apologies, and compensation. Instead, survivors got a “statement of regret” from Indian Affairs Minister Jane Stewart in 1998, and in 2003, the ADR.
Government promoted the ADR as a faster, kinder, and gentler process than courts to settle claims. Perhaps it was intended to be. But it wasn’t. It was an exercise in absurdity.
I can’t recall who said it, but one critic described the ADR as a system “set up by bureaucrats, for bureaucrats, and beloved by bureaucrats.” And that, for sure, it was. Victims were divided into Class As or Class Bs. Class A victims had suffered sexual abuse or had physical injuries that had lasted longer than six weeks. Class B victims had physical injuries that had lasted less than six weeks, or who had been confined. Confined included being tied up, shackled, or locked in a room. Financial compensation was awarded on a points system. Points were earned for things like severity, permanent physical damage, location — some provinces were worth more points than others — and the identity of the abuser. According to testimony (that was later given) by Phil Fontaine, former national chief of the Assembly of First Nations, the ADR point system also weighted being abused by a Protestant as worth 30 per cent more than being abused by a Catholic.
It was the ADR that brought Flora, Grace and Ruth to West Block’s room 371, and the Aboriginal Affairs committee that mild and cloudy winter day in 2005. Flora and Grace had gone through the ADR process. Flora’s suffering didn’t earn one single point under the system. Not one. Technically, she should not have been awarded a single penny. Still, the arbitrator, Mr. Chin, was so disturbed by her story, he awarded her $1,500 in damages anyway. Flora accepted the money. She didn’t think it was fair in any way, but because of her age and her health, and her financial situation, she took it, “even as small as it was.” Instead of settling the matter, Flora found herself in a new legal tangle. The government had spent $20,000 on the arbitration in the first place, and now government lawyers were appealing Chin’s decision, another $20,000 legal process, to snatch back the $1,500 Flora had received. As for Grace, she’d been awarded $3,500. She considered that an insult and told the government to keep it. Both were pulling out and joining a class-action lawsuit, they told the Aboriginal Affairs committee.
The class-action lawsuits were lining up to be a powerful tool for more meaningful redress. They were the real reason the Aboriginal Affairs Committee had renewed its interest in residential school survivors. In the 1980s and 1990s, survivors had formed associations, at first for support. One of the earliest was founded by Nora Bernard, a Mi’kmaq woman from the Millbrook First Nation in Nova Scotia. In 1935, when Nora was nine, the Indian agent visited and ordered her mother to enrol Nora in the Shubenacadie residential institute or else he’d put the child in foster care. Given those two choices, her mother chose the school. Nora stayed there for five years. The reputation of Shubenacadie has since become infamous.
In the early 1980s, Nora started an association for Shubenacadie survivors, at first for social reasons, but as she travelled and found more survivors — eventually 900 — and heard their stories, it became clear how many had suffered abuse. She wanted to sue.
Coincidentally at that time, provinces were amending their laws to allow class-action lawsuits, whereby groups of individuals who had suffered similar damages could file a civil case as a group. The plaintiffs needed to meet certain conditions, however, and a court had to certify the case before it could proceed.
I remember Nora as a grandmotherly woman, with a soft round face, a quick wit, a warm smile and thick eyeglasses. But there was another side to her, too. She had that steely-eyed look, you know the one that mothers pin you with, that stops you in your tracks. I don’t know if it was her charm or her steel that did it, but she convinced a law firm to file a class-action lawsuit against the government and the church on behalf of the Shubenacadie survivors.
Nora’s class-action lawsuit was the first, but as news of it spread, other survivors’ groups filed their own.
If that was bad news for the government, there was more.
The government ADR system only compensated survivors for physical and sexual abuse. Survivors had other complaints: child labour, cultural loss, emotional damage, the terribly unhealthy conditions. Not to mention the issue of forcibly removing them from their homes in the first place. There was no legal precedent to show such harms were actionable, so the government refused to consider compensation.
Then in 2004, the Ontario Court of Appeal certified just such a case. Marlene Cloud, leading a group of survivors of the Mohawk Institute in Brantford, Ont., was claiming $2.3 billion in damages for emotional and physical abuse, which included loss of culture and language, and breach of treaty and Aboriginal rights. It was a game-changer.
By the time Flora and Grace signed on, the government was staring at 17 other class-action suits, filed in nine provinces and territories. In all, 80,000 survivors — like Flora and Grace — refused to have their pain reduced to a predetermined point system, and it seemed the whole gamut of wrongs was on the table.
This is where the story takes the first of two twists, that ultimately leads to compensation and a Truth and Reconciliation Commission.
AFN National Chief Phil Fontaine, himself a residential school survivor, like his parents and grandmother before him, appeared before the committee about a week after Flora, Grace and Ruth testified. I’ve been told that in his youth, Phil was brash, angry, and had a tendency toward sarcasm. I never knew that version of him. Well, maybe the sarcasm. I knew the older man, the seasoned politician, a diplomat. An Indian who knew how to sway Ottawa’s politicians through a combination of moral suasion, pragmatism and bottom-lining. His methods were effective, if not always popular.
When Phil appeared before the committee, he opened with the moral argument. Survivors were dying without ever seeing justice — 20,000 since 1991. Then came the business case. It would take 53 years to complete the ADR processes. The administration alone would cost $2.3 billion. He reminded them that they would also be fighting court cases, and likely would be forced to recognize new classes of damages for the removal of children, cultural loss, emotional harm. It was going to be so expensive to keep fighting survivors, only to pay damages in the end anyway.
Phil proposed a common experience payment. Award each survivor $10,000 for the first year attended, $3,000 for each subsequent year. Survivors could still turn to courts or an independent process to seek damages for physical or sexual abuse. There was also a vague mention of setting up some sort of truth-telling body.
The Liberal government quickly signed on, and appointed Justice Frank Iacobucci to hammer out details of a settlement agreement. Behind closed doors, there was agreement among survivors to drop the class-action lawsuit. And also behind closed doors, the truth-telling body morphed into a national Truth and Reconciliation Commission. For all the years I chased Phil around with a camera and microphone, for the brief time I worked at AFN and sat down the hall from his office, I was never privy to his thinking. But I think he was the one pushing hardest for the creation of a TRC. An agreement in principle was signed Nov. 10, 2005.
There is one last twist to this story. The Conservatives initially disliked the settlement agreement. Jim Prentice, then the Aboriginal affairs critic, strongly hinted if his government won the election, they’d void the deal. “I didn’t see anything in it that stated this … would be binding,” he told me at a press conference.
Paul Martin’s Liberal minority government fell on Nov. 28. By December, it was clear the Conservatives were heading to win the election. That could have been the death knell for the agreement.
Instead, in December, Jim had a layover in Ottawa. Phil had arranged a quick private meeting. The two politicians met at the airport in a private room. A half hour later, they emerged. The Conservatives now promised to uphold the settlement agreement. It was the first time I’d ever seen a party reverse a policy decision mid-election.
The odds were always against survivors. From the time they were children, until now. The road to reconciliation has always been a highly politicized, fraught, fragile process, and the odds were against them every step. Some, like Flora Merrick, died without ever receiving acknowledgment or compensation. Others, like Nora Bernard, never saw the TRC’s final report. We should never forget these stories of resilience that remind us how long and how hard survivors fought for truth and a chance at reconciliation.