Archdeacon Jim Boyles, General Secretary
March 1999
Adapted from a presentation to the clergy of the diocese of New Westminster in November 1998
The spate of lawsuits churches face as the result of their past involvement with native residential schools has placed the Anglican Church of Canada in a position where it never wanted to be. This article discusses the story with some fullness in the hope of providing greater public understanding of the complexities and challenges which are the legacy of nearly 500 years of European interaction with the indigenous peoples of this continent.
The vision which currently guides the Anglican Church is rooted in a searching examination of the church’s relationship with native people published in 1969. The result of that study was a major shift of focus for the church, from a long history of association with the government in implementing a policy of ‘assimilation’, to a partnership with the indigenous peoples of Canada as they move toward self-determination. Our vision today is of healthy and flourishing native communities across the land, who have reclaimed their heritage and their languages, who have found economic well-being, and whose people lead full and rewarding lives. That is our vision and hope. Our joy is found in places and moments when that vision seems to break through, when something wonderful is seen and experienced as old wounds heal, people reconcile, and where native and non-native are set free, empowered to live more fully.
The last place we ever wanted to be was in a courtroom sitting as opposing party to lawsuits launched by native people.
Where we sit and why
From British Columbia to Quebec, Aboriginal people seek redress through the courts for abuse and deprivation suffered at some of the 24 schools operated by the Anglican Church’s Missionary Society, under the direction of the federal government.
There are now more than 200 such lawsuits across the country, launched by native people against the government of Canada and the Anglican Church. More than 1,500 other lawsuits name the government, other churches, or both. Very few of these have actually come to trial.
Some perceive the churches to be following a “hard line” in these cases. They feel the church should settle the claims against it without forcing the cases to trial. As one who has sat in court over many days giving and hearing testimony, I can fully understand this view.
Others believe it is essential for the disputes to be fully dealt with in court because, to this point, the government of Canada has been slow in acknowledging responsibility for damages arising from the schools. This may be surprising to many. After all, the minister of Indian Affairs has released a high-profile “apology”. However, that apology referred only to the commission of criminal acts, such as sexual abuse; it did not deal with the assimilation policy which underlies so much of this abuse.
In the Lytton case, the only Anglican-related lawsuit to be tried so far, lawyers for the federal government argued that any abuse was the exclusive responsibility of the church. In their closing arguments, they said the government — which had authority over virtually all school operations — had no responsibility. The judge has not released her final judgement in the case.
Historical overview
At their peak in the 1930s there were 80 residential schools in all provinces and territories except New Brunswick, Prince Edward Island and Newfoundland. They were operated under various arrangements with the federal government by the four historic missionary churches: Anglican, Methodist (later United), Presbyterian and Roman Catholic.
The articulated goal of the federal government, indeed of non-native society as a whole, was assimilation. Indians were a problem to be solved in order to colonize the continent. To survive, they would have to be assimilated into white culture, speak English, and be trained for jobs.
By the 1960s, there was growing unease in the churches about the residential schools. A watershed moment came in 1969 with the publication of Beyond Traplines,a study commissioned by the General Synod, our church’s highest decision-making body. With that report came a major change in the church’s interaction with indigenous peoples. We resolved to move away from paternalism to partnership.
We began working to support native land claims. Soon there came the appointment of indigenous staff people, then of a Council on Native Ministries, which evolved into the Anglican Council of Indigenous Peoples. There is a continuum of development through which the approximately five percent of Canadian Anglicans who are Indigenous persons seek self-determination within the church. There have been three national native convocations in the past decade. These have served as a major focus for native people to address the harms of the past. At the second of these, in 1993, Archbishop Michael Peers, the Anglican Primate, delivered the church’s apology for its involvement in residential schools. Also in 1993 the General Synod made a major presentation to the Royal Commission on Aboriginal Peoples (RCAP) which attempted, for the first time,to take the perspective of native people into account in telling the story of the residential schools. It would be instructive for more Canadians to read both our report and the RCAP report, and to understand that residential schools were carried on as public enterprises in the name of all Canadians.
In 1991, in the wake of revelations about abuse at residential schools, an Anglican working group was set up to support healing and reconciliation in indigenous communities. A Healing and Reconciliation Fund, under the auspices of the Anglican Council of Indigenous Peoples, was established and is continuing. To date more than $350,000 has been distributed to church and secular groups in affected communities. Council members and staff support the work of rebuilding native communities. In all cases program initiative and design are in the hands of indigenous community which alone can discern the path to healing.
Federal Government Initiatives
The Federal government, for its part, has taken three significant actions. First, it has established a Healing and Reconciliation Fund of $350 million. A board is in place to oversee distribution of this money, and work is proceeding on guidelines and procedures. In this, the government has followed the lead and the pattern set by the churches.
Second, federal funding has been provided to the Assembly of First Nations to convene seven regional consultations with government, native and church representatives. The consultations are considering alternatives to traditional legal procedures. All three groups believe that finding alternative ways of bringing about resolution and healing will benefit everyone. Increasingly, native leaders point out that quick cash settlements do not necessarily bring about healing. Other kinds of support are needed, and indigenous people need to find the best path for themselves with the support of the government and churches.
A third initiative came recently when representatives of the Justice and Indian Affairs departments approached the churches to discuss whether we might jointly approach resolution of the claims that lie before us. We have responded with a very cautious ‘yes,’ mindful that the original problem rested in large part in a partnership between church and government with the common goal of assimilation. We do not want to be part of another collaboration that will harm indigenous people.
Interests of the church
In or out of court, the Anglican Church of Canada has several inter-related interests. First, to seek justice for the Aboriginal people who have been injured. One way is in accordance with the legal tradition of paying compensation for wrongs committed. This may be a significant, financial burden for us. Second, to continue pressing the federal government to accept its responsibility for the policy of assimilation. Third, to continue our own program of healing and reconciliation with Aboriginal communities. And finally, to move through this period of lawsuits and negotiations in such a way that the essential mission of the whole church is not jeopardized.
The emotional toll affecting all those involved
We also have several concerns:
We are very concerned for the well-being of indigenous people who are trying to walk in the shoes both of survivors and of church members, enduring enormous stress as a result. Walking together through this dark valley of lawsuits and bearing each other’s pain may help to realize the new partnership we seek, but at the moment the darkness seems strongest. The community at Lytton, in particular, has been deeply affected by this case. Old hurts have been reopened and new ones created as Lytton witnesses its church apparently opposing indigenous peoples in court.
Church leaders and staff across the country are finding that much of their time and energy is devoted to the lawsuits when their preference would clearly be to support efforts of healing and reconciliation. Even more than the high volume of work involved, the emotional cost of such discontinuity is very high.
Former staff of residential schools suffer too as this story unfolds in the media and in the courts. Many gave faithfully and generously of themselves in the genuine belief that they were in God’s service, doing their best for native children. (Many indigenous people still speak of the love and care they received from particular staff members, despite their anger at the system as a whole.) Public opinion at the time supported the work of these teachers, even extolled them as selfless heroes. Now, suddenly, they are pariahs.
The whole church in Canada is affected by the residential school story. It may seem like “the sins of the fathers visited upon the third and fourth generation.” But the challenge before us and all Canadians is not simply past sins, but the present conditions faced by indigenous peoples in Canada: the high unemployment, the alcoholism, the family violence. These issues will remain when the file is closed on residential schools.
Our continuing partnership with Indigenous peoples
In 1969 we made a commitment to journey with our indigenous brothers and sisters. That commitment has been reaffirmed several times, and we continue to stand by it.
Nonetheless, it is a challenge to maintain a strong partnership under the strain of court actions. There is an opportunity for native and non-native people in local communities to reach out to one another, engaging more deeply in dialogue, listening to each other’s stories, hearing the hurts and sadness, joining in prayer, in actions of healing and in steps towards justice. Local churches can stimulate such initiatives.
Our adversarial legal system
We are concerned about the quality and cost of justice as administered by our courts. Obviously, it is awkward for us to criticize a system in which we are so deeply involved. At the same time, the Bible has much to say about justice as the restoration of right relationship. Our recent experience has taught us much about the ways in which the courts, in seeking justice, pit one side against another, fostering and highlighting differences, contributing to the breaking of community, encouraging aggressiveness, confrontation, formality and cold logic, and discouraging reconciliation.
We believe the Canadian justice system has an essential role which it performs conscientiously. But there is a need for work in alternative dispute resolution, and in this, there is much to be learned from the indigenous community about methods of justice.
Vicarious Liability
The General Synod was granted intervenor status in an appeal before the Supreme Court of Canada regarding vicarious liability in a case involving the Children’s Foundation. The British Columbia Court of Appeal seemed to broaden the traditional test of such liability. It suggested that an employer might be liable even if unaware of the criminal actions of an employee, and despite taking reasonable steps to prevent such actions. The decision of the Supreme Court will be significant in many residential schools lawsuits. In addition, churches and others are concerned about the possibility of this decision having a chilling effect on social programs. How likely are people to continue to serve in voluntary organizations if they risk liability for the actions of anyone else in the organization — even when all appropriate procedures have been put in place? A decision in the appeal is pending.
The future of the church
Theologically speaking, the church will never disappear. Jesus promised to be with his followers always, to the end of time (Matthew 28:20). But institutionally, the massive lawsuits pose definite risks to the church’s future and to the future of its work and mission.
In 1998, the General Synod spent more than $250,000 on legal costs and associated expenses. Clearly this is worrisome. Both dioceses and General Synod are at risk in the lawsuits. Financial reserves are limited. There is some insurance coverage, but not enough.
We also fear that parishioners, as they come to realize the seriousness of this situation, and as they read of the cost of litigation, may stop giving, or give only to the local parish. More than ever, their support is needed for the full spectrum of the work, especially support of the healing and reconciliation. (In fact, our 1999 budget has increased the resources available for healing and reconciliation work.)
The prospect of a society in which institutional churches have been crippled or eliminated raises social policy issues that should concern all Canadians, regardless of faith or religious community. Studies have shown repeatedly that church members are among the most generous contributors to non-religious causes, and the most active social services volunteers. Society must ask itself whether it is in its own self interest for churches to be so severely damaged that their work is jeopardized.
Turning points to come
In faith, I can foresee a turning point approaching. Court judgments on vicarious liability and on the proportion of legal responsibility as between the churches and the federal government will establish some ground rules, and this will make it easier for us to move beyond legal processes. There is growing recognition that it is in everyone’s best interest to find processes for compensation, reconciliation and healing.
When we have done so, however, we will have addressed only the most visible symptom of a relationship that remains profoundly out of balance. Our goal as Canadians must be to address the fullness of the relationship between Aboriginal and non-aboriginal Canadians. Undoing the damage that has been wrought will not happen overnight. Making it happen is the collective responsibility of all Canadians.
The churches will continue to play a critical role in the reconciliation of our cultures and peoples. As members of the Royal Commission on Aboriginal Peoples said in their final report (vol. v, p. 97): “Of all the non-governmental institutions in Canadian society, religious institutions have perhaps the greatest potential to foster awareness and understanding between Aboriginal and non-Aboriginal people. This potential exists even though the Christian churches historical role was often that of supporting the dominant society and contributing to the marginalization of Aboriginal people.”
We are stewards of an important legacy. Governments, the churches, Aboriginal peoples, all the people of Canada, even the media, must take very careful notice of the fullness of this complex set of problems, of what they say about our past, and of what they imply for our future.
Archdeacon Jim Boyles is General Secretary of the Anglican Church of Canada