How a resolution at the BC Law Society became a debate about residential school denial

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

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

The wording used in the training read: “On May 27, 2021, the Tkʼemlúps to Secwépemc Nation reported the discovery of an unmarked cemetery containing the bodies of 215 children on the grounds of the former Kamloops Indian Residential School. Although the discovery is shocking to many was Canadians and many Indigenous school survivors had previously reported the existence of unmarked burial grounds, and the unexplained disappearances of children confirm what survivors have been saying all along.

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

They also asked members of the advocacy group to remove the passage that said the discovery corroborates survivors’ testimonies.

The resolution was put to a vote at the association’s annual general meeting in September, where it failed with 1,499 votes in favor of the changes and 1,683 against. Another 590 members abstained from voting.

The proposed changes did not initially cause concern for 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 prompted her to reconsider her position.

The Justice Council’s website says it represents First Nations in the province in matters of justice.

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

Gray said she felt sorry for Heller and Berry’s approach because it is similar to the way a lawyer might approach a criminal trial.

“You should be able to question whether or not someone committed a crime,” she said.

“So I understand that they could see that this change in language around ‘anomalies’ would be very important to sow doubt.”

But, she said, members of a law society are different than a jury, and Gray said the resolution did not take into account the denial of residential schools.

Crystal Gail Fraser, member of the National Advisory Committee on Residential Schools, Missing Children and Unmarked Burials, said the proposed changes reflect the growing denial of residential schools.

“This may not qualify as blatant, outright denial, but it certainly contributes to narratives around denial and shows not only a misunderstanding and lack of education, but also a great lack of respect for the survivors,” she said.

Fraser, an associate professor of history and Indigenous studies at the University of Alberta and a government circle member of the National Center for Truth and Reconciliation, said the resolution privileges white/European understanding over survivor testimony.

She added that she worries about the impact on survivors who could feel silenced again, adding that she hopes more allies will stand up to denial rhetoric.

Drafting the resolution

Berry said he knew the issue was sensitive, so he and Heller tried to draft amendments that would be “minimally comprehensive” and “indisputably correct.”

Berry opened his statements at the law society 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 unmarked graves all over the country,” Berry said in an interview with CBC Indigenous.

“However, that general point does not mean that it is specifically factual that bodies have been discovered in Kamloops today.”

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

“We’ll never know until an actual excavation takes place.” 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 any investigation in Kamloops, as a reason for not offering his opinion.

“I think it’s important that we can cross-examine people and that means that no one’s story is just taken for granted,” Heller said.

“So if anyone thinks this is somehow denial, so be it. Call me and use that word.”

While Gray did not say Heller or Berry engaged in denial, she said she thought “the resolution could fall under the umbrella of residential school denial.”

“Could it be used by others to engage in housing denial? Yes, certainly. Someone could come along and completely misrepresent what we said and turn it into actual denial,” Berry said .

Reactions to the proposed resolution are pouring in

In response to the Judicial Council’s statement, other legal organizations, including West Coast LEAF, the B.C. chapter 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 attorneys at the law association meeting mentioned the personal harm they have experienced as descendants of residential school survivors.

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

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

Berry said he blames the law society for the damage because they didn’t respond to emails Heller sent about changing the wording. When Heller heard nothing after several follow-up messages, he and Berry decided to draft the resolution.

In an emailed statement, the law society said it collects suggestions regarding the curriculum and reviews them periodically, adding that the process of updating the course takes time to ensure proper consultation and information.

Berry also said a statement from the law society before the vote fueled the issue.

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

At the annual general meeting, the moderator said they would alternate voting for and against the motion – although only people opposed to the resolution spoke.

Vancouver lawyer Adrienne Smith was the first of eight speakers to oppose the resolution, calling it “small-minded” and inconsistent with calls to action in the Truth and Reconciliation Commission’s final report.

Smith said the question of evidence was established by the TRC and the 1996 Royal Commission on Aboriginal Peoples. The proposed changes sought to “turn down the volume on that truth,” they said.

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

Berry said he felt members of the bar association did not recognize the intent behind the resolution, adding that some opposed the resolution because Heller had been involved in another resolution several years ago regarding the use of preferred pronouns in courts.