Sechelt (shíshálh) and Kamloops (Tk’emlups) First Nations will be in federal court next week to seek certification for their class action lawsuit on behalf of day scholars — but the case could have been settled years ago if Prime Minister Stephen Harper lived up to his own words, shíshálh Nation councillor and hereditary chief Garry Feschuk
(?ákístá) said Tuesday.
Although day scholars were not directly acknowledged in Harper’s June 11, 2008 apology for residential schools, and were denied compensation under the Common Experience Payment (CEP) fund extended to former resident students, Feschuk said a section of the apology clearly applied to day scholars as well as other survivors.
“If they followed through on this section of his apology, we wouldn’t even be here today,” he said. “We would have been moving on from the experience.”
In the key section, which Feschuk quoted in his affidavit as lead plaintiff on behalf of the band, Harper said: “We now recognize that it was wrong to separate children from rich and vibrant cultures and traditions, that it created a void in many lives and communities, and we apologize for having done this.
“We now recognize that, in separating children from their families, we undermined the ability of many to adequately parent their own children and sowed the seeds for generations to follow, and we apologize for having done this.
“We now recognize that, far too often, these institutions gave rise to abuse or neglect and were inadequately controlled, and we apologize for failing to protect you. Not only did you suffer these abuses as children, but as you became parents, you were powerless to protect your own children from suffering the same experience, and for this we are sorry.
“The burden of this experience has been on your shoulders for far too long,” the section concluded. “The burden is properly ours as a government, and as a country.”
Feschuk said the section summarized the whole residential school era, and it made no sense for the government to arbitrarily exclude day scholars as a group.
“These children were powerless in those schools and when they came out they were powerless as parents, because those same cycles of abuses were handed down from generation to generation,” he said.
“If the prime minister is sincere about his apology, why are we having to go back to court to implement what they agreed to in the apology?”
Councils from both First Nations and a contingent of surviving day scholars will attend the hearing in Vancouver, which starts Monday, April 13 and is scheduled for five days. Five plaintiffs from each band were scheduled to testify.
“Unfortunately, because this has taken so long, one of the plaintiffs from the Kamloops side has already passed on,” Feschuk said. “There’s a couple of plaintiffs from our side who aren’t well enough to actually testify, but they do have their affidavits in.”
The class action suit was launched in 2012 and withstood repeated appeal attempts on jurisdiction by the federal government. Last summer, plaintiffs and expert witnesses retained by both sides — including linguists, historians and psychologists — were cross-examined. “And now all that information is going before the judge.”
In two referendums, in 2012 and 2013, shíshálh members approved allocating a total of $915,000 for legal costs related to the case.
“We’re hoping to get our costs back if it gets certified and there’s a settlement in the end,” Feschuk said.
The amount of compensation sought by the two bands is yet to be determined. Resident students who were deemed eligible for compensation from the CEP fund received $10,000 for the first year of school and $3,000 for each subsequent year.
Three classes of plaintiffs are seeking redress in the litigation: the survivor class, comprising more than 100 residential school day scholars from Sechelt and 200 from Kamloops; the descendant class, who are children and descendants of the survivor class; and the band class, representing the entirety of the shíshálh and Tk’emlups bands for loss of language and culture.
Feschuk said he expects the court’s decision will come down in the fall. If the class action is certified, “either Canada will want to negotiate a settlement or it will go to trial to reach a settlement.”
There could also be appeals, he added.
“In the end, I really believe that everybody has to recognize the truth, because it’s in the prime minister’s apology. And this is where I don’t understand why we can’t move forward, why everybody has to relive their experiences in order to seek justice from the government.”
The Sechelt residential school operated from 1904 — not 1912, as some online sources claim — to 1975. Students from 48 different First Nations attended the school.