First Nation chiefs should be protected from defamation lawsuits if they publicly accuse nonnatives of being racist, a Yukon court heard this week.
The Liard First Nation and its chief are fending off a lawsuit from the former principal of Watson Lake Secondary School after they publicly compared him to educators in the residential school system.
Chief Liard McMillan has a duty to protect his people from racist treatment—even if evidence to back that up doesn’t exist, says lawyer David Sutherland, who is defending him.
The defence is known as qualified privilege, he said. McMillan must have the ability to speak freely about racial tension without fear of litigaton, said Sutherland on Monday.
In a release issued during the 2006 territorial election, McMillan criticized an impromptu election promise by Premier Dennis Fentie to fund a vocational arts program at the school.
McMillan’s release singled out principal Carson Atkinson, suggesting he and Fentie secretly concocted the plan.
Atkinson had been pushing for a vocational arts program at the school for months.
Because Fentie’s announcement, made at an all-candidates meeting in Watson Lake, was done without consultation, it dredged up memories of the residential school system, said McMillan’s release.
Atkinson was also called culturally insensitive for failing to build lasting relationships with First Nation students, who make up 60 per cent of the school’s student body.
No recording or minutes of the all-candidate’s meeting exist, but according to the affidavit of an attendee, Fentie explained he came to the decision after having a private meeting with Atkinson.
The meeting never happened, said Atkinson’s lawyer, Zeb Brown, on Monday.
Fentie’s announcement of the vocational arts funding shocked several First Nation people in attendance.
It brought back memories of the old days, the court heard, when education was shoved down First Nations’ throats and designed to destroy their culture.
Liard First Nation members alerted their chief and in the next few days the release, titled Dennis Fentie Makes Up Yukon Party Policy On The Fly, was published.
The accusations were aired on CBC Radio and repeated when McMillan was interviewed by the broadcaster soon thereafter.
Atkinson, who left the school two years ago due to health reasons, is seeking damages between $50,000 to $75,000.
The release was politically motivated and Atkinson was pointlessly thrown into the crossfire, said Brown.
During interviews in the lead-up to the trial, McMillan admitted his First Nation was taking shots at Fentie, hoping he would lose.
The release was meant to focus more on the lack of consultation than on Atkinson himself, said McMillan.
There is no hard evidence Atkinson behaved in a racist manner while working at the school, said Brown.
There was a general feeling among the First Nation that Atkinson, who worked in other schools across Canada for 37 years, wasn’t respectful and wasn’t able to forge relationships with aboriginal students,McMillan said in pre-trial statements. McMillan wouldn’t provide specifics, saying it was town gossip.
The First Nation’s education liaison co-ordinator, who provides a conduit between the First Nation and the schools, often heard about Atkinson being unfair.
He was suspending students for being in the in the halls and there was a perception of racism, but specific incidents were never documented.
The only investigation happened after a heated encounter between Atkinson and the First Nation’s head of education, David Dickson.
Atkinson berated Dickson in the First Nation’s office during a brief meeting in June 2005, more than a year before McMillan’s news release.
The First Nation demanded an apology and received one, and an investigation by the Department of Education soon followed.
Nothing came of the investigation.
The flare-up was revisited after Fentie made his vocational program announcement, and Atkinson’s behaviour was examined by the Department of Education again.
If the First Nation was serious about Atkinson’s racist tendencies, it should have tried harder to investigate, said Brown on Tuesday.
The lack of evidence is moot, said Sutherland.
The chief is subject to qualified privilege, an immunity from defamation established to provide an overall good to society.
Politicians in legislative assemblies are largely protected from slandering anyone so they can be free to speak their minds.
Or, if you’re asked to give a job reference, and end up insulting the person in question, you can’t be sued because society values an honest appraisal in this case, said Sutherland.
That same condition applies to McMillan in the Atkinson lawsuit.
He has a duty to represent the values of his people and defend them if they’re being maligned.
Even if Atkinson’s racism is just a perception, McMillan has to be free to honestly express himself, said Sutherland.
Justice Leigh Gower has reserved judgement in the summary trial.
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