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Residential School Lawsuits Could Hit $10 Billion

Author: Richard Truscott 2001/07/16
Lawyers for natives suing the federal government over their treatment in the residential school system said recently stated that settling the lawsuits could cost taxpayers up to $10 billion.

Without question, people who were physically or sexually abused at the residential schools have every right to seek redress through the courts, as does anyone in similar circumstances. The government set up the schools and was in many ways responsible for the welfare of the people who were sent there, and the churches and Indian bands that ran many of the schools also have some responsibility. A number of cases have already been settled, and the federal government has reportedly set aside about $2 billion to pay for current and expected claims.

But where does the $10 billion figure come from Tailgating on the cases of abuse are a cadre of lawyers with thousands more litigants claiming damages for loss of language and culture. These claims push beyond the boundaries of what the legal system can legitimately address, have never been won in a Canadian court, and are perhaps based more in politics than in law.

The loss of Native language and culture started long before the residential schools opened to teach English and other skills. Since then popular culture has arguably done more damage than the schools ever did. To hold the government broadly liable for historic policies, or for the sweep of history itself, is a pretty dubious proposition in the legal sense. Imagine the government being sued by the Cajun descendants of expelled Acadians. Or perhaps Canada should sue the United States for kicking out the United Empire Loyalists.

The government is betting that cultural claims won't survive in the courts, but lawyers are signing up thousands of people in class-action lawsuits anyway. If these claims are successful, or if the government is compelled to a political settlement, it seems likely that a lot of money will wind up in the pockets of law firms. It has been reported that some lawyers charge 20% of the final settlement if it is settled out of court, and 40% if it goes to court. The Law Society of Canada and many aboriginal leaders have expressed concern about lawyers drumming up business by preying on residential school "survivors."

None of this is to diminish what happened in some schools, including the loss of heritage and culture. But the way to deal with the negative impact of historic facts and policies is not by hashing it out in the courts. While the government has sensibly denied legal liability for cultural claims, it has already apologized for the residential school system, provided $350 million for a "healing fund", and more programs and cash are probably on the way.

Yet, more money won't solve the problems of Canada's native people, whether it goes into the pockets of claimants, lawyers or bureaucrats. Canada's aboriginal policy may be flawed, paternalistic and disputed, but it is generous in the extreme. Right now the federal government is spending $7 billion per year to support Indian bands ($20,000 per person on reserve) and the provinces are spending billions more on social assistance and other programs. Band councils handle many millions of dollars every year, yet the vast majority of Natives remain in abject poverty and terrible living conditions in spite of (or, as some argue, because of) these huge subsidies.

No, native people don't need more money to be successful, or cultural lawsuits, or more apologies from the government, or even more land claims. What they do need are a couple of things that many people take for granted, but are absolutely essential for success in the modern world: responsible, accountable government and economic freedom. To secure genuine prosperity and healthy growing communities, the primary focus must be on progress, not redress.