Winter 1999

Compensation for Residential School Survivors

by Patricia Doyle Bedwell

Patricia is currently the head of the Transition Year Program at Henson College in Halifax, Nova Scotia. She received her law degree at Dalhousie University. She is a Micmac and grew up in Bangor, ME. She graduated from John Bapst High School. Patricia is married and has one son.

The Shubenacadie Residential School operated from 1930-1967 in Nova Scotia. Following the framework used by the Canadian Government in setting up the Western Boarding Schools for Indian Children, the Government and the Roman Catholic Church, which operated the School, tried to impose a system of assimilation and genocide upon the Mi'kmaq Children in Nova Scotia.

The Government philosophy at the time was stated by former Deputy Superintendent of Indian Affairs, Duncan Campbell Scott. He said that he wanted to continue the process of assimilation until "there was not one single Indian in the body politic." This goal of the government--to get rid of the "Indian Problem"-- set the stage for the establishment of residential schools. The government believed that true assimilation would only happen if its efforts were directed at children, since adults were too set in their ways. Elimination of the "Indian Problem" is clearly the reason why the Shubenacadie School existed in the first place.

Prevented from speaking their language and separated from their families and communities, children at the School learned to feel ashamed of their culture and of who they were as Mi'kmaq people. The goal of the School--to teach Aboriginal children vocational skills--reflected the racism of the times. School authorities decided that Aboriginal children had limited intelligence and could only learn housecleaning or labor skills. They also decided to teach the children at a slower pace. Children only completed grade 8 by the time they left school at 16. They left the school with a poor education and little or no skills likely to result in good jobs. In some residential schools, teachers were not even qualified to be teachers.

When I went to law school, I began to wonder about the issue of compensation for survivors of residential schools. Many members of my family had attended residential school. Some of my law school friends from the Mi'kmaq community had also attended residential school. My mother gave me the idea to write my Master's Thesis on the subject. As I explored the law, I discovered various legal avenues for pursuing this claim.

The basis for the legal action taken recently against the Shubenacadie School by the Association for the Survivors of the Shubenacadie Residential School is a concept called "fiduciary responsibility." Fiduciary responsibility is an idea protected by the Canadian Constitution, which is the highest law in the land. The fiduciary relationship between Aboriginal people and the Crown is not exactly a formal trust but, as the courts say, it is trust-like.

The Supreme Court of Canada has found that the Government has a fiduciary responsibility towards Aboriginal peoples. This idea was expressed in a 1984 Aboriginal case where the Government leased land on behalf of a Tribe but did not get a fair market price for the lease. The Court stated that the Government owed a duty to the Indians to act in their best interest in dealings with third persons. The Court described this duty as a fiduciary one. This fiduciary relationship is not a trust, but is trust-like in character. In Canadian law, this fiduciary relationship is sui generis, or unique.

Under the Indian Act, the Canadian Government took responsibility for educating Status Indian people. The Indian Act codifies, or defines, the responsibilities taken on by the Government. The Government's fiduciary responsibility, therefore, includes educating Indian people.

This sui generis fiduciary responsibility is protected by the Canadian Constitution. The Supreme Court has stated that the honor of the Crown is at stake when the Government deals with Aboriginals. It is not hard to see that the Government breached its honor by treating the Mi'kmaq children so badly.

In other words, the Government needs to honor the commitments made to Aboriginal Peoples and to act in their best interests. While courts have not yet fully defined the nature of this relationship, there is an argument that the Catholic Church also owes a fiduciary responsibility. The Catholic Church took care of the Mi'kmaq children in place of their parents. Both the Federal Government and the Catholic church had a responsibility to take care of the Mi'kmaq children properly. By beating those children and isolating them from their families and communities, the Federal Government and the Church failed miserably in their responsibility.

Another legal avenue supporting a claim for compensation is called "vicarious liability." This means that an employer can be held responsible for the actions of his employees. In other words, the Catholic Church could be held responsible for the actions of its nuns and priests employed by the Church. In a case involving residential schools, the Supreme Court of British Columbia has found that the United Church and the Federal Government were responsible for their employees' behavior.

The question of compensation for survivors of residential schools is a major concern in Canada. More than one thousand cases have been filed throughout the country on behalf of survivors. These lawsuits have claimed that sexual, physical, spiritual, and mental abuse have occurred. The suits have been filed against individual priests and nuns as well as churches and the Government. The British Columbia suit has been successfully upheld as far as the British Columbia Supreme Court.

Last January, the Federal Government offered an apology for its treatment of Aboriginal children in residential schools. However, this apology is wholly inadequate. Many Aboriginal leaders do not think the apology is enough compensation for the hurt they suffered in residential schools. The Government has also earmarked approximately 350 million dollars, over three years, for a "healing fund" available to the more than six hundred reserves in Canada. According to one Chief, this translates to approximately $30,000 per reserve. However, the healing fund is not the only relief that victims may be entitled to and does not prevent people from suing the Church or the Government.

Abuse at the Shubenacadie Residential School has had a far-reaching impact and created a ripple effect throughout the Mi'kmaq Nation. The abuse affected not only the children who attended the school, but the adults left behind in their communities as well. It has even affected the second and third generations. As survivors often felt obliged to leave their reserves, never to return, and go to Boston or Maine, some second generation children grew up away from their communities and did not learn the Mi'kmaq language. In Canada, some Mi'kmaq survivors even lost their Indian status under the Indian Act. This may create problems if compensation is limited to those people who live only in Canada on a reserve.

Given this far-reaching harm, some people feel that the entire Mi'kmaq Nation should be compensated. The Royal Commission on Aboriginal Peoples has recommended that the Government hold a public inquiry to assess the damage done to Aboriginals by the residential schools. In addressing the impact on the Mi'kmaq Nation, however, the Government must make sure that survivors who may have lost their Status are included as members of the Nation.

The Mi'kmaq Nation has now taken the question of compensation into its own hands. The Association for the Survivors of the Shubenacadie Residential School has filed a class action suit in Nova Scotia. Membership in the Association is open to all survivors. Your Status is not important. In order to become a member, all you need to do is join and fill out a questionnaire for the lawyer representing the Association. The questionnaire merely asks you to outline your experience at the School.

In Nova Scotia, there are some unanswered questions about whether a class action can be heard. However, the mere filing of the lawsuit has caused the Federal Government and the Roman Catholic Church to take notice of the survivors.

As one elder told me:

There could never be enough money to take away the hurt and the lost years. One injury that will be hard to put a dollar value on is the loss of potential. See what our people have done despite residential school--they have gone to law school, they have become community leaders, they have written books. I wonder what we would have accomplished if we hadn't gone to residential school. I wonder what we could do if we had a decent education that respected who we are as Mi'kmaq people.

Dollars will never be enough, but it's a beginning.