93.049P/792N, Teacher and class, Morley Indian Res School, circa 1930; United Church of Canada Archives.
Reconciling to a Hard Truth
An adjudication process set up to compensate residential school survivors has been flooded with thousands of new claims. The numbers suggest that abuse was far more common than anyone imagined.
By Richard Wright
Anne Thrasher is a 56-year-old Inuvialuit woman from Paulatuk, a remote community of just over 300 in the western Arctic. When Thrasher was a child, her father worked on the DEW Line, the network of radar outposts built in the far North during the Cold War to detect incoming Soviet aircraft. There were no schools at the outposts, so at the age of five, she was shipped off to the Grollier Hall residential school in Inuvik, N.W.T. She stayed at the Catholic-run school for 10 years.
Thrasher says she was abused at Grollier Hall in ways that she still finds too painful to speak about publicly. Unlike thousands of other residential school survivors, she never considered suing for damages. “I had been doing well putting it behind me,” she says. Even after the creation of a new process that makes it possible for survivors to seek compensation without having to resort to lawsuits or other adversarial legal measures, she resisted the opportunity to make a claim. “I had my trust broken by the residential schools and by the Canadian government already,” Thrasher says. “How was I supposed to put my trust in the process?”
Eventually, word-of-mouth reports from other Paulatuk residents saying the new process was confidential and fair brought Thrasher around. She called a lawyer in Kamloops, B.C., and set the wheels in motion to tell her story to the Independent Assessment Process (IAP) set up as part of the Indian Residential Schools Settlement Agreement reached in 2005 by the federal government, the Assembly of First Nations and the Canadian churches that ran residential schools.
At the time it was signed, there was great hope that the agreement would finally bring closure to an awful chapter in Canada’s history. But events have taken an unexpected turn, and closure is still far off. The IAP, in particular, has opened a floodgate of new claims from people like Anne Thrasher, suggesting that the number of children who were abused in residential schools was much greater than anyone imagined. If reconciliation must be founded on truth, here is an emerging hard truth that must be explored.
The terms of the residential schools settlement included compensation for all surviving students for “language, cultural and other losses” — a Common Experience Payment. This was to be supplemented by further financial compensation for students who had additionally been physically, sexually or otherwise abused in the schools. The IAP was set up to hear abuse claims and to award significant sums to claimants whose cases were validated. It was designed to be an alternative to individual and class-action lawsuits, and to replace an existing dispute resolution process sponsored by the federal government.
The parties who negotiated the settlement determined that the IAP would handle around 12,500 claims. Their forecast was based on the numbers of claimants who had previously filed lawsuits or brought claims to the alternative dispute resolution process. The projection was also guided by data from academic studies of English boarding school abuse. It has proved to be radically wrong.
In September 2007, the IAP began hearing claims, setting this coming September as the cutoff for new claims. As the 130 adjudicators fanned out across the country, the trickle of incoming claims became a river, then a flood. By 2009, claims to the IAP had already surpassed the 12,500 mark. By the end of 2010, 19,000 claims had been filed, prompting the IAP’s chief adjudicator, Daniel Ish, to sound an alarm in his 2011 annual report, issued last June: “2010 was . . . the year that we faced up to the enormity of the challenge ahead of us,” he wrote. Applications, he reported, had been arriving at a rate of about 430 a month. “If this rate continues, we will see over 28,500 applications to the IAP — more than double the original estimate — by the September 19, 2012 deadline.”
What Ish and his army of adjudicators have found is staggering to contemplate. It more than doubles the perception of how cruelly the churches and the government failed the children in their care, more than doubles the idea of the misery caused by the schools, more than doubles Canadians’ collective moral liability. Roughly 80,000 claimants have applied for the Common Experience Payment, meaning that there are roughly 80,000 former students still living. Of these, it is now projected that nearly 30,000 — close to 40 percent — will claim they were physically or sexually abused. Imagine five girls skipping double dutch back in 1950 in the schoolyard at the Ermineskin Indian Residential School in Hobbema, Alta. Statistically speaking, two of those girls were abused. Think of 10 boys playing shinny on a frozen pond at St. Paul’s Indian Residential School in Cardston, Alta. Four likely were abused. Twenty children learning fractions in a classroom at Cecilia Jeffrey Indian Residential School in Kenora, Ont. Eight of them abused. Says Rev. James Scott, the United Church’s senior officer for residential schools issues, “That so many kids experienced not just the generic abuse of being separated from home and culture, but in addition to that suffered criminal abuse — it breaks your heart open.”
How could the damage have been so grossly underestimated? The experts scratch their heads and search for answers.
The first explanation offered is simply that the process for arriving at the 2006 claims estimate was fundamentally flawed. Chief adjudicator Ish, who was not there for the calculations, explains that the forecast was “a negotiated number, so it wasn’t based really on empirical evidence.” Anne Thrasher’s lawyer, Len Marchand, was there, and concurs. The process was far from scientific, says Marchand, a member of the Okanagan Indian Band in British Columbia and an active participant in the negotiation of the national settlement. He has also served on the IAP’s oversight committee.
Marchand has acted for victims of physical and sexual abuse for more than 12 years, including hundreds of residential school survivors. “I had no data,” he says, “but I had my own anecdotal experience from speaking to people from the late 1990s to 2005, so I knew there were lots of abuses.” Marchand points out that relying on studies of boarding school abuse in Britain was bound to be misleading because the Canadian residential schools were quite unlike the British private schools. “The Canadian schools were located in remote places with limited oversight, and the children couldn’t articulate complaints because they didn’t have the language to speak about what was happening,” he says.
“The hard truth is, we really had no idea,” admits Scott. “There was a great deal of ignorance among all of us around the extent of abuse in residential schools.”
But there is more involved than bad forecasting, notes Ish. The IAP process is arguably more generous than Ottawa’s alternative dispute resolution process in its willingness to accept certain kinds of claims. For example, the IAP compensates for “other wrongful acts,” in addition to physical and sexual abuse, he explains. “Emotional abuse could be considered here, so one could say that the admissible abuses have been expanded,” thereby expanding the number of legitimate claims.
The IAP is also more receptive to what is referred to as “student-on-student abuse,” says Delia Opekokew, a deputy chief adjudicator with the IAP. Opekokew is a member of the Canoe Lake Cree Nation, located 300 kilometres northwest of Saskatoon, and was herself a student in two different residential schools. “What has been coming out in recent months is that the perpetrators weren’t just the adults. There really seems to have been a lot of student-on-student abuse,” she says. “It saddens me, but we really need to know.”
Still another explanation for the exploding numbers is the possibility that false claims might be padding the total. “There’s always that risk,” says Marchand. “I have personally experienced a couple of people who came to my office or spoke with me where, basically, what they told me couldn’t have happened.” Adds the Kamloops lawyer, “I do this work with integrity. I do not want to assist somebody with a false claim. That is dishonourable to all those who did suffer.”
Not all lawyers acting for claimants may have taken the high road, however. Last November, a law firm in Calgary representing some 4,000 claimants came under judicial scrutiny for concerns related to the claims they were representing. (The inquiry is still ongoing.) Other incidents have surfaced. “I’ve heard of a claim made by a lawyer who had not spoken to the claimant,” says James Scott. “I’ve heard of at least a couple of stories where claimants have come to adjudication and told a different story than was in their application. They were not comfortable with what was submitted on their behalf, so they told their own story, also one of abuse, but it didn’t conform very closely to what the lawyer had submitted on their behalf.” Scott continues, “It’s not clear if this was a case of former students trying to pull a fast one, or a matter of laziness or unprofessional conduct on the part of a lawyer with a vested interest.”
Scott puts his finger on a rankling peculiarity of the IAP that may tend to skew a clear understanding of the extent and severity of the abuses suffered. The worse the abuse, the greater the compensation, he points out, and lawyers acting for claimants are paid a percentage of the compensation their clients receive. This creates an incentive to make false or exaggerated claims. “If they can get a client to exaggerate their claim,” Scott explains, “they stand to earn more.”
“That is a problem,” admits Daniel Ish. “We could have had an employee/lawyer situation like you do in some legal aid systems. If we had that system, there’d be no incentive to embellish a claim or overstate the facts. Would that have been a better system? I think so.” Ish says the IAP takes false and exaggerated claims seriously. “You ask me am I worried about it? You bet. I’m getting more worried about it because more instances are being found by adjudicators, and I’ve asked our adjudicators to scrutinize carefully for that. Do I think it’s really pervasive? I hope not.”
Scott thinks that cheating may be a distracting red herring. “I believe that it is a question in a very, very small minority of the claims received,” he says. “But it opens up the idea of survivors taking the system for a ride, and that might be used to delegitimize the whole thing. And that becomes the story. The real story, from the United Church’s position, is that we believe that abuse happened in the schools, and it happened to many students.”
Paradoxically, argues Scott, the dark cloud of the unanticipated throngs of claimants may contain a silver lining. The growing numbers of claimants coming forward may indicate that the IAP is really working. Arguably, residential school survivors are responding to the IAP in greater numbers than they did to the lawsuit or the alternative dispute resolution process because, over four years of hearings, the IAP has achieved a solid reputation for fairness and has earned the trust of victims who have every reason not to trust official Canadian institutions.
Anne Thrasher’s hearing took place over a morning and early afternoon in a conference room in the basement of a Yellowknife hotel. Family members and a village elder had accompanied her on the journey to provide support. Thrasher asked them to wait outside the hearing chamber, out of embarrassment over the details she was about to reveal. She had worried herself sick in the preceding months, and her first moments were shaky, she recalls, but the demeanour of the other participants gave her confidence. “When the process was over, I felt like an elephant was off my shoulders,” Thrasher says, her relief still audible over the phone from half a continent away. Now she encourages other even more reticent members of her community to make their claims before they miss the cutoff date. And so the numbers continue to grow.
This sort of endorsement gives Rev. David Iverson great hope. Iverson was a senior United Church of Canada official when the residential schools issue exploded in a precedent-setting lawsuit involving the church in the late 1990s. (The United Church and its predecessors ran a total of 12 residential schools until the last one closed in 1969.) After retiring from pastoral ministry in 2008, he was appointed to represent the Anglican, Presbyterian and United churches on the IAP’s oversight committee. He is proud of what’s been accomplished. “Nobody says this is a perfect process, but this has never happened anywhere else in the world, that all the parties have been able to sit down together and come to a process that at least met some very basic needs.”
“Let’s face it,” he adds. “The IAP deals mainly in money. But we try to ensure that the process has the hallmarks of healing. Not just restitution but also reconciliation. I know, and most of the people I work with know, that money isn’t the full answer to this issue, but it’s a sign and a symbol that we’re taking this seriously.”
Anne Thrasher agrees. She has yet to hear what compensation, if any, the tribunal will award — according to Ish, the average award paid out by Ottawa is just over $100,000 — but that was never the real point for her. “No amount of money on earth can pay for the hardship and the abuse,” she says. “I decided I had to go through the process in order to heal. It was peace of mind I really wanted. I wanted to go to bed at night without feeling rage against that system, without being afraid of certain things I grew up with, without fearing that those people who abused me could come again in my dreams.” Thrasher did get a measure of what she was seeking. “The nightmares are further and further apart,” she says. “They barely exist for me now.”
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