Some 13,000 First Nations people across Canada, around 1,200 in B.C., have charged the government and major churches with sexual assaults committed against them as children in Canada’s Indian Residential schools. The ones who are on the difficult path through the legal system need help from those who have completed the journey, says one survivor who has just settled his own claim out of court.

“If 1,200 survivors went through that process in B.C. before me, then where the heck are they? How do we help each other? I think these guys are beating the crap out of us. We act as if we’re scared of them—still.”

Don McKay, whose Tsimshian name Wii Haughtkm Skiik literally means Great Cry For Us Eagle, was born in Lax Kw’alaams, just north of Prince Rupert. A drum maker and carpenter, he has also lived and worked in Prince Rupert and Vancouver, but his family and his heart bind him to this place. His claim against the government and the United Church took five years to settle and it was a hard, lonely process.

“I’ve got no idea who’s coming after me but we’re all lined up; we’re all going to be numbered, we’re all going to be processed,” says McKay.

The defense lawyers brought thick binders to his proceedings, records of McKay’s life from his birth until today, as well as their knowledge of how previous cases have settled. McKay brought his verbal testimony. Among the documents his Vancouver lawyer Karim Ramji brought was a letter to McKay from a former United Church minister whom he had tracked down shortly before the man died. This personal and passionate letter was written by the minister who turned McKay’s abuser at the Edmonton school over to the authorities in 1960.

Because the man who assaulted McKay is dead, he could not face criminal charges. Ramji filed a personal injury claim for the sexual assault of a child under tort law. He explained the difference between criminal and tort, or civil, law.

“The criminal process is undertaken by the Crown. It is Her Majesty versus the accused. In Don’s case it would have been Her Majesty versus [Reverend] Ludford. The Crown decides whether to lay charges.

“It is focused on the accused. Did they break the law? The victim only provides evidence and a victim impact statement for the judge’s consideration before sentencing. The victim cannot ask questions or have anything to say if there’s a plea bargain for the defendant. You can’t do it with a dead man; there is no criminal recourse in that case, or if the accused has done jail time or is in jail for the same crimes.

“In civil law, the victim is the plaintiff and that puts them in the driver’s seat. They can sue the person who hurt them and anybody else who is responsible, such as the offender, the church and government and the Crown.”

The offender’s employers remain responsible for the pain, suffering and loss of opportunity caused by the acts of their employee, whether the employee is dead or alive, Ramji explained.

“In a civil case the plaintiff is suing for damages for a crime that is already recognized.” Guilt has been accepted by the defense, he says.

“There is no way to compensate for sexual crimes committed against children,” Ramji says. “How do you put a price on a child’s innocence?”

Gary Oleman, Saa Hiil Thut, provides support to survivors in or out of court, through the Indian Residential School Survivors Society in Vancouver, where McKay’s hearings took place. He agrees that the adversarial legal process is unfamiliar and harsh for survivors, who still struggle with the effects of their experiences.

“I know it’s not a fair fight, but it’s a fight. They’ve got the cards, they’ve got the deck and they made the rules, and people like Don went and poked ’em in the eye and I feel good about that. They [survivors] got in there and gave ‘em a headache.

“Don’s fighting and he’s giving an example to people to say no to abuse, which is a wonderful thing, because so many of our people are in the victim role.”

Oleman is one of the support workers called on by the Department of Justice to provide support for the plaintiffs, who will almost certainly have childhood memories triggered during the legal process.

“It’s a healing thing. There are a lot of people who are dead set against civil court action, saying people aren’t ready and I know that, but are we going to wait until everybody is ready, because if we do that we’re going to be dead. We’re going to be gone and there’s going to be no case at all.

“Sometimes when there’s a crisis that means there’s a turning point. I’m there with them and maybe they’ll find themselves in the process. That’s what I pray for when they come in—that they’re going to free themselves in this process.”

Asked what he would want to know if he were just now starting the process, McKay indicates he would want to know what testimony the defense lawyers consider to be significant.

He believed he was expected to focus on the pain and suffering his experiences caused, but he now understands the defense was just as concentrated on his “potential”—their assessment of his net worth, had he not been damaged as a child.

Until survivors can gather and talk, away from programs run by the same groups they are suing, McKay says they will never be as prepared as the lawyers who represent their abusers.

Nobody’s talking about it in Lax Kw’alaams, he says. “I’m the only one of about 200 survivors here who has done anything about it. What will it take for us as survivors to get together, to hell with the government and church programs?”

Residential school payout

Churches that helped run aboriginal residential schools must share the liability for sexual abuse suffered in those institutions, the Supreme Court of Canada has ruled.

The precedent-setting decision Oct. 21 stipulates that the federal government portion of responsibility is 75 per cent, while the church should pay 25 per cent for the cost of claims filed by victims.

More than 10,000 native Indians have launched lawsuits over treatment at Canada’s church-run, federally funded residential schools. Most lawsuits focus on sex-abuse complaints. About 2,200 have been settled through negotiations, and another 400 through legal processes.

Roughly 10 per cent of the lawsuits have been aimed at the United Church of Canada, 20 per cent at the Anglican Church, and 70 per cent at Roman Catholic organizations, which ran most of the country’s now-defunct residential schools.

Prior to the recent ruling, the United and Anglican churches had worked out arrangements with the federal government to resolve more than 600 out-of-court settlements. Both denominations have been paying 30 per cent of damages and the federal government 70 per cent.

Many religious organizations have now warned that having to pay damages in abuse cases will leave them severely short of funds, meaning they may have to sell off church buildings and restrict operations, but that will not impact claims since the October ruling also found the government and church are jointly responsible, meaning if the church goes bankrupt, the government pays 100 per cent.

The United Church has paid out more than $5 million in compensation and legal expenses to date.

On Nov. 30, the federal cabinet approved an agreement in principle that had been accepted by Assembly of First Nations (AFN) days earlier. Among other measures, people who attended schools were to have the option of settling for a payment of $10,000 plus $3,000 for each year they attended school.

Grand Chief Phil Fontaine of AFN stated, prior to the January federal election, that the agreement to provide compensation would be secure, regardless of the election’s outcome.

Initially the plan was to have details worked out by the end of January. Fontaine now says the overall package should be finalized by March.

The final text would have to be approved by the government and sent to seven jurisdictions within Canada for court approval. The agreement is also to include a mandatory waiting period for survivors who use the common experience plan and for early payment for survivors who are 65 or older.

—L.W.