How a resolution at the B.C. Law Society became a debate about residential school denialism

A recent request to change the wording in a mandatory Indigenous intercultural course for lawyers in British Columbia led to a debate over whether the changes amounted to residential school denialism. 

Victoria-based criminal defence lawyer Jim Heller submitted a resolution to the B.C. Law Society to change the wording. The resolution was seconded by Burnaby lawyer Mark Berry. 

The wording used in the training said: "On May 27, 2021, the Tkʼemlúps te Secwépemc Nation reported the discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds. Although the discovery was shocking to many Canadians, many Indigenous residential school survivors had previously reported the existence of unmarked burial sites, and the unexplained disappearances of children; the discovery confirms what survivors have been saying all along."

Heller and Berry asked to have the first sentence changed to "...Tkʼemlúps te Secwépemc Nation reported the discovery of a potentially unmarked burial site…" and to remove the reference to the bodies of 215 children.

They also asked law society members to delete the passage saying the discovery confirms survivors' testimonies.

The resolution went to a vote at the society's annual general meeting in September, where it failed with 1,499 in favour of the changes and 1,683 opposed. Another 590 members abstained from voting. 

The proposed changes didn't initially cause concerns for Ts'msyen and Dene lawyer Christina Gray, but she said after about a week she saw a statement from the B.C. First Nations Justice Council that made her rethink her position. 

The justice council's website says it represents First Nations in the province on justice-related issues.

That statement called the resolution racist and said it supports residential school denialism.

Gray said she had compassion for the approach Heller and Berry took because it's similar to the way a lawyer might approach a criminal trial.

"You have to be able to cast a doubt that someone did or didn't do a crime," she said.

"So I understand how they could see this change in language around 'anomalies' would be very important to cast a doubt."

But, she said, law society members are different from a jury, and Gray said the resolution failed to take into account residential school denialism. 

Crystal Gail Fraser, a member of the National Advisory Committee for Residential Schools, Missing Children and Unmarked Burials, said the proposed changes reflect growing residential school denialism. 

"This may not qualify as blatant, outright denialism, but it definitely contributes to narratives around denialism and not only shows a misunderstanding and lack of education, but also huge disrespect for survivors," she said. 

Fraser, who is an associate professor in History and Native Studies at the University of Alberta and a member of the governing circle for the National Centre for Truth and Reconciliation, said the resolution privileged white/European understanding over the testimony of survivors.

She added that she worries about the impact on survivors who could feel silenced again, and added she hopes more allies stand up against denialist rhetoric. 

Drafting the resolution

Berry said he knew the issue was sensitive so he and Heller attempted to draft changes that would be "minimally expansive" and "unassailably correct."

Berry opened his statements at the law society's meeting by saying he believed there were likely unmarked graves at former residential schools. 

"I think that it's a very safe assumption that there are in fact unmarked graves across the country," Berry said in an interview with CBC Indigenous.

"That general point, though, doesn't mean that it's specifically factual today that bodies have been discovered in Kamloops." 

However, Heller said he would not speculate on the presence of graves at the former Kamloops school. 

"We'll never know until — unless and until — there's actually an excavation." Heller said.

"People have different views, but they haven't been proven. So 'potential' is the right word."

Heller also cited his work as a criminal lawyer who could potentially become involved in a criminal case related to any investigations in Kamloops as a reason not to offer his opinion. 

"I think it's important that we be able to cross-examine people and that means that no one's account is simply taken for granted," Heller said. 

"So if anyone thinks that that's somehow denialist, so be it. Call me and use that word."

Heller added that he doesn't like the word denialism because he thinks it shuts down conversation.

While Gray did not say that Heller or Berry were engaging in denialism, she said she thought "the resolution could fall within the rubric of residential school denialism."

"Could it be used by others to jump off to residential denialism? Yeah, sure. Somebody could come along and completely misrepresent what we said and turn it into actual denialism," Berry said. 

Reactions to proposed resolution pour in

Following the statement from the justice council, other legal organizations including West Coast LEAF, the Canadian Bar Association's branch in B.C., Legal Aid B.C., the Federation of Asian Canadian Lawyers B.C. and the British Columbia Civil Liberties Association issued statements against the resolution. 

Multiple lawyers at the law society meeting mentioned the personal harm they experienced as descendants of residential school survivors. 

Berry said he regretted that harm was caused by the resolution and added he also regrets that institutional actors "completely misrepresented the content, the scope and the intent of the resolution."

Both he and Heller referenced their work for their Indigenous clients, with Heller saying, "They get the principle that I'm trying to fight for here."

Berry said he blames the law society for the harm since they did not respond to emails Heller sent about changing the wording. When Heller did not hear back after multiple follow-up messages, he and Berry decided to draft the resolution. 

In an emailed statement, the law society said it compiles suggestions regarding the curriculum and reviews them periodically, adding that the process of updating the course takes time to ensure proper consultation and information.

Berry also said a statement from the law society before the vote inflamed the issue. 

That statement said the resolution highlights the need "to increase knowledge and understanding, continue our efforts of advancing meaningful reconciliation with Indigenous people, and eliminate racism in our profession." 

During the annual general meeting, the moderator said they would alternate between those for and against the motion — although only people who opposed the resolution spoke. 

Vancouver lawyer Adrienne Smith was the first of the eight speakers against the resolution, calling it "mean-spirited" and contrary to the calls to action in the Truth and Reconciliation Commission's final report.  

Smith said the question of proof has been established by the TRC and the 1996 Royal Commission on Aboriginal Peoples. The proposed changes attempted to "turn down the volume on that truth," they said. 

Several people who identified as descendants of residential school survivors also spoke outlining their concerns and feelings about the resolution. 

Berry said he felt law society members failed to recognize the intent behind the resolution, adding he believed some opposed the resolution because Heller had been involved in a different resolution several years ago regarding the use of preferred pronouns in courts.