Ottawa says it's not liable for cultural damage caused by Kamloops residential school: court documents

The federal government is heading toward trial on a class-action lawsuit seeking reparations for the devastation residential schools inflicted on First Nation cultures, languages and communities.

The claim for reparations was originally part of a broader lawsuit filed in 2012 by the Tk'emlups te' Secwepemc and shíshálh Nation in B.C. — along with residential school survivors known as day scholars — who were forced to attend Kamloops Indian Residential School and Sechelt Indian Residential School. 

Tk'emlúps te Secwépemc announced last Thursday that preliminary findings from a survey of the grounds at the former Kamloops institution uncovered an unmarked burial site with the remains of children.

So far, 105 First Nations have signed onto the lawsuit.  

"Canada's residential school policy ripped away the foundation of identity for generations of Aboriginal People and caused incalculable harm to both individuals and communities," said the statement of claim.

"Canada was also a beneficiary of the residential schools policy, as the policy served to weaken the claims of Aboriginal Peoples to their traditional lands and resources."

This is the first lawsuit seeking reparations from the federal government for the impact residential schools had on Indigenous nations — fracturing communities, suppressing cultures and erasing languages. 

All other litigation related to the residential school era involved compensation for individuals who suffered abuse and harm.   

"It's a particular case that has never been tried before," said Matthew Coon Come, a former Assembly of First Nations national chief who is involved in the case.

"The bands felt impacted, they felt they had to deal with the trauma, loss of language, culture."

The federal government, in court filings, denies any legal responsibility. 

It says the loss of language and culture was an "unavoidable implication" of "children being educated in English or taught the Christian doctrine," according to Ottawa's amended statement of defence, filed in 2019.

It admits the schools were meant to "assimilate" Indigenous people, but denies the federal governments of that era "sought to destroy the ability … to speak their Indigenous language or to lose the customs or traditions of their culture." 

Those languages and cultures were also eroded by "historical, personal and society circumstances" and by interactions between "Indigenous communities and the dominant culture," along with urbanization, the federal government argued. 

"While the federal government may have contributed to those losses in various ways, such losses were not as a result of any unlawful acts or omissions of Canada or its employees or agents with respect to the operation of residential schools."

The documents also says "a single residential school policy" never existed. 

Crown-Indigenous Relations Minister Carolyn Bennett is responsible for the case. Her office did not respond to a request for comment.

The reparations claim was part of a larger class-action lawsuit also seeking compensation for day scholars, survivors who attended residential schools but went home in the evening, and their descendants. 

Most day scholars were excluded from a 2006 settlement, under which survivors received $10,000 for the first year of living at a residential school and $3,000 for every year after.

Day scholars could instead apply for compensation for abuse under a process created by the settlement.

The lawsuit, certified in 2015, was split into two claims — one for day scholars and one for the First Nations seeking reparations — in August 2020.

Coon Come said separating the two issues was necessary to advance stalled negotiations with federal lawyers. 

"The negotiations became very difficult," said Coon Come. 

He said the focus turned to finding a resolution for day scholars, who are getting older. There are between 15,000 to 25,000 such survivors still alive today.  

The Federal Court record shows settlement talks for day scholars picked up after the splitting of the two claims. Coon Come said he couldn't comment on the state of those talks. 

According to a schedule proposed in the court record, litigation should resume on the reparations claim once a settlement is reached with day scholars. 

A proposed trial date on First Nation reparations is scheduled for September 2022. 

Mary Ellen Turpel-Lafond, director of the Residential School History and Dialogue Centre at the University of British Columbia, said it's time for the federal government to come to grips with its responsibility for the collective damage caused by residential schools.

She said it is "unfinished business" that should be addressed outside a courtroom. 

"Those impacts, it has to be addressed. I don't think that having to have a class action and fight for it is a good way to do it," said Turpel-Lafond.

"I think a prudent course would be to not make people go to court and have to fight to prove this when it is so obvious what happened."