How a BC Law Society resolution became a residential school denial debate

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

Victoria-based criminal defense lawyer Jim Heller filed a resolution with the BC Law Society to change the wording. The resolution was sponsored by Burnaby attorney Mark Berry.

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

Heller and Berry requested that the first sentence be changed to “…Tkʼemlúps te Secwépemc Nation reported the discovery of a possible unmarked burial site…” and that the reference to the bodies of 215 children be removed.

They also called on members of the Bar to delete the passage that said the discovery corroborated the survivors’ statements.

The resolution was voted on at the company’s annual general meeting in September, where it failed with 1,499 votes in favor and 1,683 against. Another 590 members abstained from voting.

The proposed changes didn’t initially concern Ts’msyen and Dene lawyer Christina Gray, but she said after about a week she saw a statement from the BC First Nations Justice Council that caused her to reconsider her position.

The Judicial Council’s website states that it represents First Nations in the province on justice matters.

That statement called the resolution racist and said it supported denial of residential schools.

Gray said she had compassion for Heller and Berry’s approach because it was similar to the way a lawyer would approach a criminal trial.

“You have to be able to cast doubt on whether someone has committed a crime or not,” she said.

“So I understand that it would be very important to clear up doubts about how they could detect this change in language around ‘anomalies’.”

However, she said members of a bar are different than a jury, and Gray said the order did not take residential school denial into account.

Crystal Gail Fraser, a member of the National Advisory Committee for Residential Schools, Missing Children and Unmarked Burials, said the proposed changes reflected growing opposition to residential schools.

“While this cannot be described as blatant, outright denial, it definitely contributes to narratives around denial and shows not only a misunderstanding and lack of education, but also a great disrespect for survivors,” she said.

Fraser, an associate professor of history and Native studies at the University of Alberta and a member of the leadership group of the National Center for Truth and Reconciliation, said the resolution favors understanding between whites and Europeans over the testimony of survivors.

She added that she worries about the impact on survivors who may feel silenced again, adding that she hopes more allies will push back against the denialist rhetoric.

Drafting the resolution

Berry said he knew the issue was sensitive, so he and Heller tried to work out changes that were “minimally comprehensive” and “inviolably correct.”

Berry opened his testimony at the state bar meeting by saying he believed there were likely unmarked graves at former residential schools.

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

“However, this general point does not mean that it is a concrete fact today that bodies have been discovered in Kamloops.”

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

“We’ll never know until there’s an actual excavation,” Heller said.

“People have different views, but they are not proven. So ‘potential’ is the right word.”

Heller also cited his work as a criminal defense attorney, who could potentially become involved in a criminal case related to an investigation in Kamloops, as a reason for not expressing his opinion.

“I think it’s important that we can cross-examine people, and that means not just taking anyone’s account for granted,” Heller said.

“So if anyone thinks that’s somehow denial, then so be it. Call me and use that word.”

While Gray did not say that Heller or Berry were engaging in denial politics, she said that “the resolution could fall into the category of denial politics in residential schools.”

“Could it be used by others to jump to housing denialism? Yes, of couse. Someone could come along and completely misrepresent what we said and turn it into actual denialism,” Berry said.

Reactions to the proposed resolution are increasing

Following the Judicial Council’s statement, other legal organizations also got involved, including West Coast LEAF, the BC branch of the Canadian Bar Association.Legal Aid BC, the Federation of Asian Canadian Lawyers BC and the British Columbia Civil Liberties Association issued statements opposing the resolution.

Several lawyers at the Bar Association meeting mentioned the personal harm they suffered as descendants of residential school survivors.

Berry said he regretted that harm had been caused by the resolution, adding that he also regretted that institutional actors had “completely misrepresented the content, scope and intent of the resolution.”

Both he and Heller referenced their work with their Indigenous clients, with Heller saying, “You understand the principle I’m trying to fight for here.”

Berry said he blames the bar association for the damage because it did not respond to emails Heller sent about the wording change. When Heller received no response after several follow-up messages, he and Berry decided to draft the resolution.

In an emailed statement, the Law Society said it was compiling curriculum proposals and reviewing them regularly, adding that updating the course took time to ensure proper advice and information.

Berry also said a statement from the bar association before the vote fueled the issue.

That statement said the resolution underscored the need to “increase knowledge and understanding, continue our efforts to promote meaningful reconciliation with Indigenous peoples, and eliminate racism in our profession.”

During the annual general meeting, the moderator said that people would alternate between supporters and opponents of the motion – although only those who were against the resolution were allowed to speak.

Vancouver lawyer Adrienne Smith was the first of eight speakers against the resolution. She called it “mean” and contradicted the calls for action in the final report of the Truth and Reconciliation Commission.

Smith said the issue of evidence had been resolved by the TRC and the 1996 Royal Commission on Aboriginal Peoples. The proposed changes sought to “downplay this truth,” they said.

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

Berry said he felt that members of the bar did not realize the intent behind the resolution, adding that he believed some were opposed to the resolution because Heller worked on another resolution several years ago regarding the use of preferred pronouns been involved in the courts.