BC law society members are slated to vote on the resolution at the LSBC’s annual general meeting
Legal organizations, including the Law Society of British Columbia, have condemned a resolution two members put forward for voting at the society’s annual general meeting which proposes to correct “false information” in an Indigenous cultural competency training course for lawyers.
Brought by lawyers James I. Heller and Mark T.K. Berry, the resolution urged the LSBC to remove a phrase in the training materials that referenced the “discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds.”
The lawyers argued the phrase should be replaced with a reference to the “discovery of a potentially unmarked burial site on the former Kamloops Indian Residential School grounds.” The lawyers also pushed for the removal of the phrase “the discovery confirms what survivors have been saying all along.”
Judith Sayers, a director on the board of the BC First Nations Justice Council, told Canadian Lawyer on Thursday that if the resolution passed, “it would divide the legal community” and damage the credibility of the LSBC.
“The BC First Nations Justice Council, we stand as witnesses to the testimony of the Indian residential school survivors who mostly now are all elders and who have courageously shared their stories and experiences time and time again,” Sayers says. “The countless number of people who have witnessed children being buried is strong. These accounts are acceptable in court and an important part of the historical record and must be given the respect they deserve.”
LSBC requires lawyers in BC to take its Indigenous Intercultural Course, which provides training on the history of Indigenous-Crown relations, legislation concerning Indigenous peoples, and the history and legacy of residential schools. The law society’s annual general meeting will take place on Sept. 24.
In a statement last week, the LSBC said that “the views expressed in the resolution do not reflect those of the law society.” Noting that members failed to pass a proposed change in 2021, which would have required a resolution to be signed by at least 50 members in good standing before it could be sent to LSBC’s executive director, the law society said: “the threshold to advance resolutions that may be frivolous, vexatious, or unnecessary remains very low.”
The BCFNJC, the BC Branch of the Canadian Bar Association, and the BC Civil Liberties Association also issued statements this month criticizing the resolution.
In May 2021, Tk’emlúps te Secwépemc issued a press release announcing that a ground-penetrating radar survey resulted in “the confirmation of the remains of 215 children who were students of the Kamloops Indian Residential School.” The survey was conducted near the former school, which was the largest school in Canada’s residential school system, with more than 500 students enrolled in the 1950s, according to the City of Vancouver.
The day after the announcement, federal lawmakers fast-tracked a bill to establish the National Day for Truth and Reconciliation as a statutory holiday, and three First Nations communities would make similar announcements in the months to follow.
The National Post reported that in all three cases, the communities took care to establish that the graves were either already known about, within existing cemeteries, or may not be children’s graves with any links to residential schools.
In their LSBC resolution, Heller and Berry cited three sources to support their stance. These included a statement by Dr. Sarah Beaulieu, the radar expert hired by the Tkʼemlúps te Secwépemc Nation, that no remains had yet been found near the former Kamloops Indian Residential School, as well as the use of the word “anomalies” instead of "remains" on the Tkʼemlúps te Secwépemc website.
The two lawyers also cited a BC Court of Appeal decision from July, which determined that a lower court judge had not demonstrated “apparent or actual intolerance, denial or bias” when she referred to “potential” remains at the Kamloops school. The appeals court noted that the term “is the very same word Indigenous communities and others have used to describe the results of tests using ground penetrating radar in and around former residential school sites.”
Heller, who runs a solo practice in Victoria, told Canadian Lawyer the appellate decision had prompted him to contact LSBC multiple times about changing the curriculum. He says the organization did not get back to him, spurring him to file the resolution with Berry.
“I expected some pushback, but I never expected that the law society itself would see fit to call me a racist,” he says. Heller cited the appellate court’s discussion of residential school denialism, which the court said “involve[s] the rejection or misrepresentation of basic established facts about the operation of residential schools in Canada.”
“It’s not a well-established fact” that remains were found at the Kamloops school, Heller says.
But Sayers says the court of appeal’s ruling on the use of the word “potential” needs to be read in context. The court “ruled that the appellant in that case did not meet the heavy onus of establishing that a reasonable and informed person with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the [lower court] judge's comments about ‘potential’ remains gives rise to a reasonable apprehension of bias.”
She also pointed to the court’s discussion of denialism, in which the court acknowledged “the hurt and harms denialism causes, especially to Indigenous people in Canada,” as well as the “intergenerational impacts” of the residential school system.
“While the language may have shifted in some public statements, such as the word ‘anomalies’ instead of ‘remains,’ this does not negate the very real evidence that has emerged and continues to emerge regarding graves at former residential schools,” Sayers says.
Berry told Canadian Lawyer the intention behind the resolution was to have “a very specific statement that is not factually correct, but that is in the [course] materials, be fixed, be edited to be accurate.
“We believe that we need to care about objective truth and being accurate in a mandatory course for lawyers,” Berry says, adding the backlash he’s received from the BC legal organizations “have suggested that there were other intents and purposes for doing this, and that is not true.
“I do believe that there are quite likely unmarked graves associated with residential schools across the country,” he says.
