Supreme Court rejects challenge to `residential schools'
Federal policy on natives doesn't create `actionable wrong'

Ruling dismays advocates for victims' compensation

The Toronto Star, Canada's largest daily newspaper, SEAN GORDON, OTTAWA BUREAU, Oct. 22, 2005

OTTAWA—The federal government cannot be sued simply because it took aboriginal children from their homes and placed them in residential schools, the Supreme Court of Canada has ruled.

In a 9-0 ruling, the court said yesterday lawsuits must be based on damages suffered from specific wrongful abusive acts committed at the schools.

Groups advocating for compensation on behalf of residential school victims saw the ruling as a major blow.

"We're very disappointed. ... In order to really look at the issue, you need to look at the government of the time's policies; it was an institutionalized form of racist violence," said Beverley Jacobs, president of the Native Women's Association of Canada.

The government's residential school policy has been called "forced assimilation" and "cultural genocide."

The court also said that, while safety measures were "clearly inadequate" by today's standards, the "foreseeable risk of sexual assault to the children was not established" according to the standards of the day.

The ruling came in a case in which the court denied an appeal by a former B.C. residential school student.

It could have far-reaching consequences for others who claim they were abused in the church-run schools.

The court also found the appellant did not establish that the government violated a fiduciary duty toward the children, rejecting an argument that could have placed a much higher standard of responsibility on the government.

The decision confirmed a trial judge's finding that the federal government and the church were liable for 75 per cent and 25 per cent of damages, respectively.

The ruling also found the government and church jointly responsible, meaning if the church goes bankrupt, the government pays 100 per cent.

Assembly of First Nations National Chief Phil Fontaine said the decision establishes the federal government must accept responsibility for the abuses that took place in the schools from the 1950s to the early 1970s.

He added that Ottawa should move swiftly to settle outstanding claims.

Federal officials welcomed the judgment, and said its effects will reverberate well beyond the case.

"I think it is a very positive step and probably establishes some pretty important principles that apply well beyond residential schools, " said Deputy Prime Minister Anne McLellan.

The appeal arose out of a 1996 case brought by 27 former students of the Alberni Indian Residential School on Vancouver Island.

The ruling rejected an argument put forward by Frederick Barney in the case — a former student who suffered horrendous physical and sexual abuse — that the government must bear full responsibility because it didn't have the power to delegate care of native children to the church-run schools.

"The Indian Act falls far short of creating a mandatory duty to ensure the health and safety of children in residential schools," Chief Justice Beverley McLachlin wrote in a passage that court watchers say could have a broad impact on future claims.

The judgment appears to strengthen the government's negotiating position, but McLellan, who is overseeing talks to create an alternative dispute resolution mechanism, said the government remains committed to compensating residential school victims.

McLachlin found that Barney — who was brutally sexually abused by a dormitory supervisor at the Alberni Indian Residential School in his youth — was entitled to damages, but rejected his request to quadruple a lower court award of $125,000 in general damages and $25,000 in punitive damages.

The country's top court also considered whether the government and the United Church of Canada, which ran the school, were liable for the abuse those students suffered, and how the liability should be divided between them.

In the end, the Supreme Court struck down a B.C. Court of Appeal judgment that found the church was protected by "charitable immunity" and instead confirmed the trial judge's ruling that in the case of abuse victim Frederick Barney, the government and church bore 75 per cent and 25 per cent of the responsibility, respectively.

"One may sympathize with the situation of the church... however, sympathy does not permit courts to grant exemptions from liability imposed by settled legal principle," read the judgment.

Meanwhile, the government said it has called a first ministers' meeting for Nov. 24-25 in Kelowna, B.C.

The ministers will meet with leaders of the country's main aboriginal groups to discuss issues affecting natives.