Editor's note: This story talks about residential schools and may be distressing to some readers.
A resolution to amend language in mandatory Indigenous training for lawyers, that addresses 2021 ground-penetrating radar work at the former Kamloops Indian Residential School, faced impassioned criticism at the Law Society of BC annual general meeting Tuesday.
“I am appalled, but not surprised to see this resolution here,” said lawyer Adrienne Smith of the attempt by criminal defence lawyers James I. Heller and Mark T.K. Berry to correct what they deemed to be the society’s “false statements” in the training course.
At issue for Heller and Berry is that the course package claimed: “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 contended the course should not assert, as a fact, that human remains had been discovered. Their resolution stated that ground-penetrating radar experts had found no actual remains and this year the First Nation “officially changed the word ‘remains’ to ‘anomalies’ on its website in recognition that no bodies of children had been found, to date, at the school grounds.”
The resolution noted attempts were made to have the course providers correct the original statement but to no avail and so the resolution called on member lawyers to implore the society to replace the language with: "discovery of a potentially unmarked burial site on the former Kamloops Indian Residential School grounds."
Ahead of the meeting, the society clarified that edits may be made annually and the suggestion will be taken into consideration next year in conjunction with consultation performed in Tkʼemlúps te Secwépemc territory.
Heller and Berry suggested the resolution speaks to the core of the legal profession as “adherence to facts and evidence is a cornerstone of the practice of law” and “training materials should not contain factual errors, and in particular should not knowingly spread falsehoods.”
Speaking to his resolution, Heller said, “It would be great if the authorities and experts in RCMP would finally do the necessary work, likely some kind of excavation, to ascertain the truth of the matter.
“But until that time, it's inaccurate and misleading to suggest that there's been any such discovery,” added Heller, whose comments drew a torrent of criticism from speakers.
“The suggestion that because actual bodies have not been excavated in a timing that suits the movers over this resolution is ghoulish and disgusting,” said Christina Cook, counsel for the BC First Nations Justice Council.
The final vote saw 1,683 society members oppose the resolution and 1,499 vote in favour of it, with 590 abstaining.
At the meeting, Heller said he has been accused of being racist but was surprised to get as many votes in favour of his resolution given opposition from law institutions — such as the BC Civil Liberties Association, Canadian Bar Association BC Branch and BC First Nations Justice Council — leading up to the AGM.
‘Completely misses the point’
Smith stated the resolution was “absolutely contrary to the commitment that we've been directed to make by the TRC (Truth and Reconciliation Commission of Canada) and other really important initiatives towards decolonizing.”
Smith added that Heller and Berry’s resolution is “part of a distressing trend in courts to try to inappropriately put a referendum about the needs of equity-denied groups improperly before courts and tribunals.”
Cook, meanwhile, said Heller and Berry omitted the Tkʼemlúps te Secwépemc Nation update last May that stated the investigation is still ongoing.
That statement noted the radar had “narrowed down the location of probable unmarked burial sites on the grounds.”
“In addition to the inaccuracy of the basis of this resolution, this resolution is, in and of itself, harmful; it is, in and of itself, along the lines of very dangerous residential school denialism, and does not reflect what I believe our profession is made up of and what I believe our profession should stand for,” said Cook.
Civil litigation lawyer Martin Buhler chalked up the resolution to “micro-editing” training materials while fuelling unmarked residential school graves as a hoax when, as noted by Canadian Bar Association BC Branch in its letter to members, there are “volumes of testimony” of unmarked graves and missing children contained in the TRC Report.
This was also a point made by family lawyer Andrea Glen, who runs a “settlement-focused” family law practice and told the meeting she is a descendant of residential school survivors.
“According to the (TRC) report, the practice was not to send the bodies of students who died at schools to their home communities, and for the most part, the cemeteries that the TRC documented, they're abandoned, they're disused, and they're vulnerable to accidental disturbance.
“So in light of this significant body of evidence across the country, to quibble over the language of whether something is a burial site at a particular location, or a possible burial site or a probable burial site, obviously completely misses the point, and it's just so hurtful to quibble over the language used for one particular area when we have a huge body of evidence that this happened across the country,” said Glen.
Also speaking against the resolution was lawyer Steve Kelliher, who said while he doesn’t believe the resolution to be denialist or racist, the resolution was a “highly selective insistence on the truth” adding: “When our governments denied responsibility for the residential school system and the multitudes of grievous crimes that were committed during that period — the entire policy was a crime — we've never been invited to rise up and speak against that.
“But when an Indigenous nation miscalculates one of its horrors, we're up on our feet in outrage of that event; it is a highly selective insistence on the truth that Indigenous people have suffered forever.”
Lawyer defends record
Berry said that while he does “believe that there are likely unmarked graves associated to residential schools across this country” and “in the realities of intergenerational trauma arising from the disaster that was those schools” he said he too was concerned the society and critics have denigrated him and/or called him a racist.
Berry said he has defended roughly 100 Indigenous clients and that has meant, rightly, “looking at the effects of the intergenerational trauma” in lowering custodial sentences despite the desire for stiffer punishment from victims and the public.
And, said Berry, “the public's ability to access justice depends in turn on our ability to prioritize the fact-finding process. There is no exception for sensitive subject matter. The law society seems to have a different view.
“Insisting that reconciliation requires knowingly perpetuating a factual inaccuracy is a disservice to the very concept of reconciliation and to the role of this profession as an advocate for objective, fact-based justice,” Berry concluded.
This year’s AGM could be the last for the society as the public knows it; the government has enacted legislation to create a new regulatory body for all legal professions, which will also impose greater consultation with First Nation organizations — a matter that the society has voiced concerns about with respect to maintaining the independence of the bar.
This article has been edited from its original; a prior version misidentified lawyer Steve Kelliher
For immediate assistance to those who may need it, the National Indian Residential School Crisis Line is available 24 hours a day at 1-866-925-4419.
