An influential lawyer within the Anglican Church says the Church's recent agreement with Ottawa on settling Indian residential school claims is a "dishonourable" deal that "will offend the conscience of many Anglicans."
In a private memo to Church lawyers across the country, obtained by the National Post, Bud Smith, a former British Columbia attorney-general, also says the deal could jeopardize the Church's legal structures, because it prevents Anglicans from appealing a damaging 1998 court decision on its corporate makeup.
"The Anglican Church of Canada's participation in this joint venture is wrong," Mr. Smith says. "It is not grounded in a principled approach to our relations with aboriginal people."
A lawyer in Kamloops, B.C., Mr. Smith is the chancellor -- or legal advisor -- of the Anglican Diocese of Cariboo, a district of churches in the B.C. Interior that has been bankrupted by native lawsuits.
Although Mr. Smith is one of 30 Anglican chancellors across the country, his concerns and warnings have not been made public by the Church's leadership, including Archbishop Michael Peers, the Anglican Primate of Canada, who is in the midst of a high-profile campaign to sell the agreement to the faithful.
Other branches of the Anglican Church, as well as parts of the Catholic and United Churches, also face bankruptcy from the thousands of claims filed against them and the federal government by former students of Indian residential schools, which were operated in the last century by Ottawa in partnership with the Churches.
In November, after months of negotiations, Anglican leaders signed an agreement with Ottawa to co-operate in the handling of claims against them, and to share the financial cost of settlements.
The deal says Ottawa will pay 70%, and the Church 30% of compensation awarded to former students with validated claims of physical and sexual abuse. The Church's share will come from a $25-million fund, to be raised from Anglican worshippers.
In return, the government will assume most of the legal costs of dealing with the claims. Ottawa will also cap the Church's liabilities at $25-million, ensuring financial survival for many threatened Anglican groups, including the Church's national office in Toronto.
The agreement must now be ratified by 30 dioceses, all of whom are expected to contribute to the $25-million fund.
Thirteen dioceses have already signed off on the deal, which Archbishop Peers calls "a watershed in the life of the Church" -- a deal that lets Anglicans focus on their pastoral work and ministry, while leaving the burden of litigating the cases to the government.
"The proposed settlement with the Government of Canada allows us to proceed with integrity along a better way," he says in a message on the national Anglican Web site.
In his memo, Mr. Smith applauds the idea of raising money to compensate claimants. And he welcomes the goal of getting on with the Church's ministry, much of it involving native people. Yet, he says in pursuit of such goals, the Church is sacrificing too much.
He says one of the agreement's biggest flaws is that it requires Anglicans to abandon their appeal of the Mowatt decision, a 1998 ruling by a B.C. judge that bankrupted the Diocese of Cariboo and set the stage for many residential school lawsuits to follow.
The Mowatt decision made the Church 60% liable, and the government only 40% liable, for the abuse perpetrated by a residential school employee in Lytton, B.C. Ottawa had offered to accept 80% of the liability before the ruling was made, but the Church refused, believing the court would find the government 100% liable.
Mr. Smith says the Church's handling of the case was a "fiasco." For years now, he has worked to appeal the ruling, but in November, without his knowledge or consent, Anglican officials in Toronto accepted Ottawa's demands to abandon the matter as part of their overall deal.
Mr. Smith says that is a serious mistake. Not only does the Mowatt ruling place too much liability on the Church, he says, it also treats all arms of the Church -- from the local dioceses to the national body -- as a single corporate entity. If the ruling is not appealed, it could be used by future plaintiffs to make legal claims against the assets of the whole Church, rather than just one part.
Mr. Smith is also dismayed that Church leaders have agreed to work with Ottawa to "vigorously oppose" all native claims based on loss of language and culture in the schools. No such claims have yet been proven in court, but thousands are before the courts, including a national class-action lawsuit.
Mr. Smith says it is wrong for the Church to counsel native people not to bring language and culture claims forward, or to actively resist such claims beyond simply defending itself against them. The courts are open to anyone, he says, and no Church can in good conscience try to prevent natives from accessing them as free citizens.
The deal allows the Church to fund community programs to rebuild lost languages and cultures, and to offer counselling to people who renounce legal claims for loss of language and culture.
Mr. Smith says "using the carrot and club of money in this way is not how the Church should conduct itself.