Top News - December - 2004
Judge slams ADR, rules class action can proceed
More work needed to reduce child poverty
Monument honours Pic River and Long Lake veterans
This is only a partial listing of the stories featured in the December 2004 issue of Birchbark. If you are not receiving your own copy of Birchbark, then you have missed out on a lot.Click here for Birchbark subscription information.
Judge slams ADR, rules class action can proceed
Paul Barnsley, Birchbark Writer, Toronto
While ruling that a lawsuit launched by former Ontario residential school students could proceed as a class action, a panel of three Ontario appellate court judges vehemently discarded arguments that the federal government's alternative dispute resolution (ADR) process would be a better way to settle the dispute.
Justice Stephen Goudge, a former lecturer in both labour law and Native rights at the University of Toronto law school, wrote the unanimous decision which was released on Dec. 3. Justices Michael J. Moldaver and Marvin Catzman agreed with his reasons.
The lawsuit was originally filed in October 1998 by former students of the Mohawk Institute Residential School. The school building is located in the city of Brantford on Six Nations of the Grand River First Nation land and now houses the Woodland Cultural Centre, a museum dedicated to Iroquois or Haudenosaunee culture.
Children and other family members of the former students also allege they were harmed by the abuses their relatives suffered in the schools and are demanding compensation. Altogether, with former students, their siblings and their children, the number of people involved as plaintiffs in the case is 1,400.
The defendants are Canada, the Anglican Church and the New England Company, an evangelical English charitable organization that dates back to the 17th century.
The court noted that the defendants had attempted to introduce new evidence during the appeal that held up the ADR process as a preferable way to settle claims made by former residential school students.
"Even if we were to admit this fresh evidence, I do not agree that this ADR system displaces the conclusion that the class action is the preferable procedure," Justice Goudge wrote. "It is a system unilaterally created by one of the [defendants] in this action and could be unilaterally dismantled without the consent of the [former students]. It deals only with physical and sexual abuse. It caps the amount of possible recovery and, most importantly in these circumstances, compared to the class action it shares the access to justice deficiencies of individual actions."
The case, known as M.C. (also known as Cloud) v. Canada, has now been certified as a class action and, unless one of the three parties named as defendants appeals to the Supreme Court of Canada, will proceed to trial.
Survivors and their lawyers all over the country welcomed the ruling. A press release from Thomson, Rogers, the Toronto law firm that is attempting to get a national class action lawsuit certified, said all survivors of the schools would be "thrilled" by the judges' conclusions.
"This is a great step forward for the victims of these institutions," said Alan Farrer of Thomson, Rogers. "This sets the stage for our class action on behalf of residential school victims all across the country."
The national chief of the Assembly of First Nations (AFN) also welcomed the ruling, which reinforces his organization's recently released report that was critical of the ADR process.
"Between 1922 and 1969, students at the Mohawk Institute Residential School, like First Nations and other Aboriginal people at residential schools across Canada, were allegedly abused in many ways," Phil Fontaine said. "There are specific incidents of emotional harm and physical and sexual abuse, as well as the loss of language and culture that impacts our people to this very day. Today's decision recognizes that these abuses affected all the students of the school, as well as their families."
He called on the government to address the deficiencies with ADR.
"We support the survivors in this class action because there is currently no acceptable alternative except the courts," he said. "Survivors and their families are rejecting the government's dispute resolution process because it is adversarial and often serves to re-victimize survivors. This decision speaks to the limitations of the current [A]DR process and limitations of access to justice for individuals. The Cloud class action that is certified today emphasizes the need for the government to respond to the AFN report and, more important, work with First Nations and survivors to create a better process that truly leads to justice, restitution and reconciliation."
The class action will allow experiences common to all residential school students to be examined by the court in one case. The plaintiffs claim the school was run in a way that was designed to create an atmosphere of fear, intimidation and brutality. They also claim that physical discipline was frequent and excessive and that food, housing and clothing were inadequate. They say staff members were unskilled and improperly supervised and students were cut off from their families and were forbidden to speak their Native languages and were forced to attend and participate in Christian religious activities. It is alleged that the aim of the school was to promote the assimilation of Native children.
The court certified claims for breach of fiduciary duty, negligence and breach of Aboriginal rights. The court found that dealing with all of the facts and issues raised in the case should be dealt with in one trial because it would save time and expense. The court also found that access to justice would be greatly enhanced by a class action. The plaintiffs claim more than $1 billion in damages.
Russell Raikes, one of the lawyers acting for the former students, said the judge's comments about the ADR process were tremendously important.
"They tried to introduce that on the appeal for the first time and say, 'Look at us, we've got this ADR program," he said. "So when you're deciding whether or not to certify this, you should take into account that there's this ADR program that we've put in place so this is not the preferable procedure. You should make them go with individual lawsuits or the ADR route.' What the court said is, 'Your ADR program is unilateral. You can withdraw it unilaterally; you can change it unilaterally. It's not adequate for these reasons."
Raikes said the government had a self-serving motive for setting up the ADR, but Native people saw through it.
"I think [the government] came forward with the ADR program hoping people would rush to line up at the door to take what was being offered even though it was very narrow, very limited, and would then sign off on their other claims and would save the government some money. And I think people were smarter than that," he said.
He urged the defendants to accept the decision and not slow the process further by appealing the decision to the Supreme Court of Canada. He noted that even if there is no appeal it will take close to a year to get to trial and many of the plaintiffs are elderly and in poor health.
"History favours that they will appeal. But I'd say that they shouldn't. I'd say it's a well-written, well-reasoned decision by a unanimous panel of the court of appeal, which is the highest court in this province and I'd say on a moral basis they shouldn't do it. These people have been through enough," the lawyer said. "Let's get to resolving the issues and let's do it in an expeditious way using the vehicle that the court of appeal has said we should use. I'd say that just on a moral basis I don't think the Crown should be seeking leave to appeal. But that's up to the Crown, of course. I think that decision will be made at a very high level."
More work needed to reduce child poverty
Cheryl Petten, Birchbark Writer, OttawaJust under 16 per cent of Canadian children-more than one million-live in poverty. Among Aboriginal children living off-reserve, that percentage jumps to 40 per cent. These staggering figures are only part of the story told by a recent report by Campaign 2000, a non-partisan organization formed in 1991 to build public awareness and support in the fight to eliminate child poverty and to remind all elected officials of their responsibility in that fight.
One Million Too Many-Implementing Solutions to Child Poverty in Canada-2004 Report Card on Child Poverty in Canada, was released on Nov. 24, the 15th anniversary of the unanimous passing of an all party resolution in the House of Commons to eliminate child poverty by the year 2000. The report states that not only is the government not making significant progress in reaching its goal, it is actually losing ground. After five straight years of declining numbers, the poverty rate among children actually increased in 2002. And, despite a commitment to deal with the problem from all parties at the federal level, the number of children in poverty is higher now than it was in 1989 when the resolution was passed.
The government doesn't get any passing grades in the Campaign 2000 report card, which indicates the situation is either remaining static or worsening for families with children. One-third of all children in the country have been exposed to poverty for at least one year since 1996, the report states. The poverty rate among couples with children has remained unchanged, sitting at 10 per cent. On average, low income couples with children would need to earn $9,000 more a year just to reach the poverty line.
The situation is worsening for single mothers with children. More than half of all single mothers and their children live well below the poverty line and would need to earn, on average, another $8,800 a year to even reach that indicator.
The report card shows no progress in closing the gap between the rich and poor, and food bank usage at an all-time high. It also points to child poverty rates among Aboriginal, immigrant, visible minority and disabled children at more than double the national average.
Almost half of the children living in poverty are in families where at least one of the parents works full-time, year round, but still isn't able to earn enough to rise above the poverty line.
The situation is compounded for Aboriginal people, who continue to face barriers that keep them unemployed or underemployed. According to figures plucked from the 2001 census, Aboriginal people are less likely to find employment than the general population and when they do find employment, they are likely to be paid less-two-thirds of the average wage any given position.
Among the recommendations made in the report to improve the situation for Canada's working poor is an increase in the minimum wage to $10 an hour. Currently the minimum wage varies from province to province and territory to territory, from a high of $8.50 per hour in Nunavut, to a low of $5.90 per hour in Alberta, for an average of about $7 per hour. Revamping the Employment Insurance system to make it easier for a person to qualify when they are out of work is another recommendation, as is finding ways to eliminate barriers that prevent excluded groups-including Aboriginal people-from finding meaningful employment.
The report also calls for creation of an effective child benefit system, with an increase in the benefits available per child, and an end to the practice of denying federal child benefits to families receiving social assistance. It also speaks to the need for a strong, universal system of early learning and child care to provide children with learning opportunities early in life and parents with child care so they can work or attend training to increase their employment options.
Access to affordable housing is another piece of the puzzle. According to the report, 20 per cent of families with children live in housing that isn't affordable. Among low income families that number jumps to 68 per cent. To be considered affordable the cost of keeping a roof over your head must take up 30 per cent or less of your total income.
The Campaign 2000 report also recommends the federal government improve access to post-secondary education by freezing or lowering tuition and increasing student aid funding.
While the Campaign 2000 report card doesn't give the federal government high marks, the government itself doesn't rate its performance much higher when it comes to meeting its commitment to Canada's Aboriginal people. In Canada's Performance 2004, released by the Treasury Board on Dec. 2, the government admits it has made some progress addressing the socio-economic problems facing Aboriginal people, much more remains to be done. The number of Aboriginal people graduating from high school has increased but is still far below the numbers for non-Aboriginal people. According to the report, 58 per cent of First Nations people age 20 to 24 living on reserve and 41 per cent off reserve haven't completed high school. Thirty-two per cent of Métis people and 54 per cent of Inuit people in that age group don't have their high school diploma.
The Treasury Board report also points to an unemployment rate among Aboriginal people two-and-a-half times that of the non-Aboriginal population, and an average income almost 40 per cent lower than the average. Just under 42 per cent of Aboriginal people living in urban areas are considered low income, the report states.
There is no quick fix to the problem of child poverty in Canada, but according to Peter Dinsdale, ensuring children get a good education is an important part of the solution. Dinsdale is executive director of the National Association of Friendship Centres, one of the partners in Campaign 2000.
Dinsdale calls the low levels of education attainment among Aboriginal people an epidemic, and questions the government's lack of commitment to do something about it.
"There's virtually no action on a national basis to help our kids finish high school and to give them a meaningful start to address child poverty in a generational way. And that's the kind of stuff that has to occur," he said.
"With our kids, I mean, they aren't even graduating from high school. So where are they going to be 10 years from now? And they're going to start to have kids. And what kinds of conditions are those kids going to be living in? I believe the greatest thing we can do is make sure our kids finish high school."
The Campaign 2000 report highlights the fact that programs aimed at creating affordable housing, providing early childhood development programs and increasing the amount paid in child tax benefits have all been proven to reduce child poverty, but the political will to take such actions doesn't seem to exist, Dinsdale said.
"When you consider that over half of all Aboriginal people live in urban centres, half of all our people are under the age of 25, and half of all our people don't graduate from high school, that's a recipe for disaster. And if not now, then when? I don't know."
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Monument honours Pic River and Long Lake veteransBirchbark Staff
November 11 was quite a day to remember for members of Pic River First Nation and Long Lake First Nation. This year the two communities marked Remembrance Day by unveiling a monument dedicated to veterans from both reserves.
The monument, which sits on the grounds of St. Francis Xavier Church on Pic River First Nation, was built with funds raised by the Pic River Historical Committee. The committee spent an entire year on their fundraising efforts, raising $4,200.
The unveiling ceremony began with the smoking of the pipe, with 12 local pipe carriers in attendance. A drum group made up of boys from grades 7 and 8 performed during the ceremony, as did girls from grades 3 and 4, who sang and played hand drums.
Of the 22 veterans whose names are inscribed on the memorial (11 from each community) only one is still living- Duncan Michano Sr. of Pic River, who was able to attend the honouring ceremony.
Long Lake council members Scott Desmoulin and Frank O'Nabigon attended the ceremony on behalf of their community's veterans, while Pic River Chief Roy Michano attended on behalf of council.
