Q&A: Justice for survivors of Nanaimo ‘Indian Hospital’ depends in part on political will, says class-action lawyer

Q&A: Justice for survivors of Nanaimo ‘Indian Hospital’ depends in part on political will, says class-action lawyer

Lawyer Steven Cooper explains where the class action lawsuit stands and what’s needed to restore justice.

Lauren Kaljur

October 7, 2021

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This article contains information about “Indian hospitals.” Please read with care and reach out if you need support. The Indian Residential School Survivor Society’s Crisis Line can be reached any time at 1-866-925-4419.

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In January 2021, a class action representing survivors of former “Indian hospitals” across Canada was certified by the Federal Court.

The class lawsuit against the Attorney General of Canada alleges that the “Canadian government was negligent in the funding, oversight, operation, supervision, control, maintenance and support of Indian Hospitals,” and is liable for the various abuses endured by those who—often forcefully—attended them.

Steven Cooper of the Edmonton-based Masuch Law LLP is a co-council lawyer for the class. His law firm is one of four collectively representing people who were mistreated and abused in at least 29 of these segregated, federally-run institutions across Canada. Among these was the former Nanaimo “Indian Hospital,” the second largest of its kind in Canada, that operated on Snuneymuxw First Nation territory from 1946 to 1967.

Related: Community helps fund search of former Nanaimo “Indian Hospital” grounds

The representative plaintiff is Ann Cecile Hardy, member of the Métis Nation, who was a patient at Charles Camsell Indian Hospital in Edmonton, Alberta in 1969.

The Discourse interviewed Cooper to better understand the class action and where it stands today. The interview has been edited for clarity and length.

What are the allegations in this claim?

The allegations themselves are quite simple and quite common, which is that the federal government set up a purposely designed system, the purpose of which was to provide minimal and often inferior and often negligent medical care to the Indigenous population, separate from the non-Indigenous population. 

And so Camsell hospital as an example (and, frankly, one that I’m most familiar with, having been raised in the Northwest Territories) is where everybody by the ‘80s, Indigenous and non-Indigenous were going. My own mother went to Camsell hospital because of a medical issue in the ‘80s. So there were wings, apparently, where the Indigenous population was still being treated separately from the non-Indigenous population. 

It reflects the fact that these institutions were set up to provide a modicum of care, but never approaching a standard that was expected by society, that the settlers’ colonial approach, so that the care that my mother would have gotten would have presumably been comparable to any other hospital, as opposed to an Indigenous friend of hers, who would have been treated with much less care. 

One really good example is Ann Cecile Hardy, who is the representative plaintiff, who came from Fort Smith, Northwest Territories to the Camsell hospital as a 10-year-old child when she came down with [Tuberculosis.]. They were about to perform a significant lung operation to remove a lung or part of it, and they didn’t even consider contacting her parents for permission. 

Now, Fort Smith at the time was one of the few isolated locations where there was telephone service in the ‘70s. If Cecile had come from a community farther north, there might not have been telephones. 

Number 1, they should have phoned her mother, and would she have not been Indigenous, it wouldn’t have been a question. 

Fortunately, Ann found the resources and some coins to use a payphone to phone her parents. They literally drove all night—it’s about a thousand miles from Fort Smith to Edmonton—and got there to stop the operation, which as it turned out, didn’t happen and she didn’t need. 

There was an attempt to operate on her. She was sexually abused. She was physically abused. She suffered from medical malpractice. She’s sort of the epitome of a representative plaintiff. Her circumstances really truly reflect the commonality of the group. 

So that gives you a very tangible example—in this case, of a representative plaintiff—who is treated as a second class or third class citizen in Canada and in our lifetime. This didn’t happen in the ‘30s or ‘40s. This happened in the ‘70s. 

And that’s really the basis of the allegations, is that the children that were there, the patients that were there, were not protected from sexual abuse, from physical abuse from negligence, from bad foods, from treatments that weren’t necessary.

What about consent? Don’t all individuals have the right to make decisions about their medical care?

I suspect, and this is part of what the historians will tell us and the experts will tell us, that the notion of consent was never [considered to be] important.

For example, we have what are called the skin grafting cases from Igloolik. Nobody thought about consent, certainly none was sought, none was given, let alone informed consent. 

Remember that legislation itself prohibited Indians as defined under the Act, which include what they called the “Eskimos” at the time, from even hiring a lawyer. [It would have been] inconceivable for a non-Indigenous person to have had that restriction. 

The government simply treated the Indigenous population, First Nations, Métis and Inuit as almost “wards of the state.”

Now, that’s come back to haunt them, because we sort of use that philosophy as a basis of some of the compensation that’s sought. If you want to take over an obligation, that comes with certain responsibilities.

So you know, ever since 1763, when good old King George III said, “You are my people,” the colonial powers have often presumed that they have the authority to proceed without consent, informed or otherwise.

And the example that I gave you with respect to the representative plaintiff Ann Cecile Hardy, is a good one, because they didn’t even consider it essential in the modern age in the 1970s to be seeking consent of the parents of a 10-year-old child for the most invasive surgery that one could imagine. 

Was it illegal? Of course it was. Was it perceived as illegal? Probably not. And that’s the problem, that nobody had the voice to speak. 

Editor’s Note: In the 2020 report about Indigenous racism in B.C. healthcare, In Plain Sight, the authors point to an incident described in the Truth and Reconciliation Commission’s findings. When a University of British Columbia medical genetics faculty member approached the principal of Kuper Island Residential “School” in 1968 about experimenting on the children there, he refused to participate, citing the need to contact their parents. “The importance of parental consent was clearly apparent to this principal,” the report notes, “further emphasizing the unethical — yet broadly accepted — actions of his colleagues at the other schools.”  

What’s the status of the Nanaimo “Indian Hospital” class action?

So what happens is, in a class action like this, we need to convince the court or, even better, we need to convince the government that there is a common group of people with a common group of issues that should be tried together. And that’s what we’ve done. They consented to the certification.  They agree, at this point, without us having to convince a court, there’s a case here to be heard.

The next issue becomes what years are covered, because these institutions tended to evolve and change. These hospitals were part of a more formal federal system around the years of 1947 to 1948. But it wasn’t as if, on one day, they all became federal institutions. Nor, as they move through their tenure, did they remain the same. Some got taken over by the province, some shut down, some got taken over by other institutions. 

Much like other large classes like this, such as the Federal Day Schools Class Action, that’s something that will have to be negotiated or settled by a court. But Nanaimo is certainly at the center of the group of hospitals that will be covered by whatever the outcome is.

The next issue is the number of people covered. So we’re talking with the federal government representatives and, at the same time, our experts, actuaries and historians are doing their own work, looking at numbers, working together and comparing those to see if we can come up with a common number.

Those numbers help us define what any trial or settlement might look like. It’s different when you’re dealing with 50,000 people than if you’re dealing with 100,000 people, or 5,000 people. So we’re getting a handle on that. 

One of the struggles that we’re going through right now on both sides is at what point were certain medical procedures no longer considered good medicine. So for example, body casts—we’ve heard many anecdotal stories at this point—were used to discipline children who wouldn’t stay in their room. Some of the children literally had their legs tied to the hospital bed. But others allege they were actually threatened and were ultimately put in full body casts.

This wouldn’t have happened to non-Indigenous children. It’s just inconceivable that it would have happened, particularly when the parents were around. So those are the sorts of allegations that we’re dealing with. And these allegations, some are historical, but many of them are very modern. I mean, certainly during my lifetime, up into the 1980s.

And then the discussions that take place, as we work towards trial, include what do we agree on? What don’t we agree on? So even if we can’t settle, we can at least agree upon a whole bunch of issues, theoretically leaving the areas we can’t agree upon up to a judge. 

That’s where we are right now. We’re slowly working towards trial, but also slowly working on the potential for settlement. Though we remain confident that, under the right government with the right reconciliation proposal, the class action will settle.I don’t think you’ll see much for the next maybe six to 12 months.

Will the “Indian Hospital” class action to court?

It’s really hard to predict how these things are going to work out. It really depends on whether there’s a settlement or if you go to trial. Most cases of this nature these days, under this government, don’t tend to get to trial for a variety of reasons. 

In fact, when we were in Newfoundland and Labrador in the residential school claim there, the judge noted that this was the first time this type of claim had ever gone to trial. And there was an election, resulting in the current prime minister being elected for his first term. Three months later, the matter was settled. So we never did even finish that trial.

So you know, we certainly hope this remains with the current administration. Because our experience with the Conservative forebears under Stephen Harper were 10 years of no-holds-barred litigation. That’s not a political statement. It’s just the reality of dealing with these types of things.

The philosophy behind settlements really is dependent on the government of the day and where, politically, reconciliation fits. 

Are there any issues with accessing the records due to privacy concerns?

The numbers of documents are in the hundreds of thousands. And yes, there is the issue of the personal nature of some of the material. But these types of files are all aggregated for purposes of moving ahead to settlement or trial. We use actuaries, we use statistics, we use trends, and only if there’s a settlement or a finding in favour of the class do we get in and really drill down into the personal data.

According to researchers, some of the Nanaimo “Indian Hospital” records have either been lost or destroyed. Will this present a problem?

At this point, the nature of litigation is that the party who holds the documents is responsible for collating them and providing them, and that’s by and large the federal government. But there are provincial archives, municipal archives, even private archives. There is enough material available in the principal government archives to get where we need to go at this point that we aren’t likely to drill down and look for other documents that may or may not have been destroyed, in one form or another. 

Almost every record that is produced is represented in some form of summary. That probably was not destroyed, even if the principal document was. So we’ll know for example, from the quarterly reports, how many patients were in, how long they were in for, what they are in for, how much food they ate. Those sorts of things tend to be summarized in a different location, which gives us some certainty that we’ll find what we need. 

Why should people pay attention to this claim?

If you want to understand the problems we’re having now, today, you’ve got to understand the history. And that involves understanding and acknowledging the “Indian hospital” system as an expansion of the residential school system, as an extension of the whole “kill the Indian in the child” philosophy of both the Canadian government and, before them, even the United States government. And this was all part of the treatment of individuals as second class citizens. There’s a reason why the Truth and Reconciliation Commission was called that, because so much of what we experienced here was reflected in the apartheid in South African experience. 

You have to understand the impact that residential “schools” had, that the ‘60s Scoop had, that “Indian hospitals” had. The RCMP discrimination problem is ongoing, and we have two class actions going involving RCMP discriminatory behaviour against people in custody, both in northern Canada and southern Canada.

And class actions, whatever people think of them — it forces the government and, through them, the public — to face the reality of our past. 

What should people do if they think they may be part of the Nanaimo “Indian Hospital” claim?

At this point, we don’t know what the class definition will look like, since it’s being negotiated. But if you’re a survivor, you’re part of the class whether you know it or not. If there’s a settlement, there’s a huge notice period. There will be millions of dollars spent on radio spots, notices, television spots, to try to identify as many people as possible.

If you don’t opt out within that period of time, then you’re in. If there is a settlement at some point or a decision and you don’t apply for compensation, you’ll have a period of time to apply, after which you’re out of luck. 

It’s really important for people, if you’re a survivor of the “hospital” system, or you think might have been, to please contact our office and we’ll put you into a database. 

The database is really important for two reasons. Number 1, it keeps you, the survivor, informed. And the other reason is it gives us critical data that we pass on to experts. We’ll be able to say, for instance, we have 40 people who have contacted us in our database that went into Nanaimo “Indian Hospital” and suffered these types of abuses in these years. 

We’ll be able to say, ‘But don’t forget about that situation in Nanaimo where this happened, this year,’ so that we can try to include that in the settlement. If we don’t know about it, it’s not going to be there and it’ll be too late after the fact. 

So please contact us. The number to our office toll free is 1-800-994-7477. You can also contact us at info at [email protected]. And then we’ll send you a form. Fill it out to the best of your ability. It’s not a test, you won’t be marked. And we never give out any personal information. Even if you just include your name and address and phone number, at least we know where to find you. 

Editor’s Note Oct. 15, 2021: We updated the headline of the story to describe members of this class as survivors rather than victims.