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Tansi Nîtôtemtik,
A Record-Breaking Settlement
The Indian Residential Schools Settlement Agreement (IRSSA) resulted in the largest settlement to date in Canadian history.[1] It included unique non-financial measures including the creation of the Truth and Reconciliation Commission which developed the Calls to Action we are evaluating, a fund for commemoration projects to memorialize the impact of residential schools, and a fund to provide mental health supports to all plaintiffs included in the settlement.[2]
Individual plaintiffs were eligible for payment through the Common Experience fund, which would pay eligible survivors a set amount based on the duration of residence in a residential school. In addition to the Common Experience Payment (CEP), survivors who experienced physical or sexual abuse were also eligible for the Independent Assessment Process (IAP).[3] IAP was an adjudicative process that offered additional reparations on top of the common experience
payment, and involved the survivor recounting the abuses that occurred.
This process was not without issue. The large fund combined with an allowance in the agreement for counsel to charge
up to 15% of the settlement attracted lawyers from all walks, including those who had little training or experience with
trauma-informed work (as should have been required here). Charging 15% of the settlement payout was meant to be reserved for the most complex of settlements, yet several lawyers took advantage of vulnerable claimants and routinely charged this.[4] Many survivors who sought acknowledgment and apology over financial compensation were re-traumatized by the incredible detail required during IAP or accepted smaller payouts because they were simply unable to share their trauma in that room.[5]
Many survivors not eligible to make a claim
The harms of these schools remain significant, but did you know that many survivors of residential schools were excluded entirely from the settlement, as well as the 2008 apology from the Prime Minister?
The settlement agreement did not include;
- Day school survivors, and those who attended residential schools during daytime hours,
- Métis who attended Métis residential or boarding schools,
- those who attended schools in Newfoundland and Labrador, and
- those who attended schools that were otherwise not considered to be under federal jurisdiction.[6]
Any school not found to be a residential school under some level of federal responsibility was excluded from the settlement.[7]
Of course all of these schools operated within the policy set out by the Indian Act and its mandate to deal with the “Indian Problem” by “killing the Indian within the child”.[8] Whether or not the federal government funded or oversaw the operation of these schools, their fundamental purpose was guided by federal law and policy.
Many Class Action Suits
These exclusions led to a number of new class action lawsuits by affected survivors who had been excluded.
- The Indian Day School Settlement Agreement has been approved for up to $1.4 billion for Day School survivors, but this settlement still excludes survivors who did not attend a federally operated day school.[9]
- A proposed settlement of $50 million was approved in 2016 for survivors of Newfoundland and Labrador schools, based on a breach of fiduciary duty by Canada.[10] This may set a precedent for future claims that involve schools not previously found to be federal jurisdiction.
- A memorandum of understanding has been entered into by Canada and the Métis students who attended the Île-à-la-Crosse mission boarding school in Saskatchewan, but Métis students who attended Timber Bay Residential School are working to appeal their class action certification after it was dismissed by a Saskatchewan judge.[11]
- There is yet another class action by Day Scholars, or students who attended federally operated residential schools but returned home at night. In this case, negotiations have broken down and the action proceeds to trial in 2021.[12]
Canada’s response to Call to Action #29
Call to Action #29 calls upon Canada to work collaboratively with survivors who were not included in the initial settlement. Team ReconciliAction gives Canada a grade of ‘D’ on this call.
The harms caused by residential and day schools are broad reaching, and a common experience for students who attended any school that followed the assimilation policies of the Indian Act, regardless of federal jurisdiction. Forcing survivors to fight for piecemeal reparations for these broad reaching common harms is not reconciliatory. Team ReconciliAction is uncertain if Canada is merely waiting for more survivors to pass away or if the government legitimately believes it should not take responsibility for the consequences of its policies. Either way, the reconciliatory approach requires Canada to initiate negotiations will all affected survivors, and to negotiate with repairing the harms as the forefront objective.
Do you think Canada deserves a ‘D’, even after some of the largest settlement payouts in history? Let us know in the comments.
Until Next Time,
Team ReconciliAction
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1 Tabitha Marshall, “Indian Residential Schools Settlement Agreement”, (11 July 2013), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/indian-residential-schools-settlement-agreement>.
2 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 130.
3 Ibid at 169.
4 See for example Bird v Blott, 2019 ABQB 764, a recently certified class action suit in which a Calgary lawyer is alleged to have earned $21 million on approximately 5600 mishandled IRS claims.
5 Sarah Petz, “Settlement process retraumatizes some residential school survivors, report says”, CBC News (20 February 2020), online: <https://www.cbc.ca/news/canada/manitoba/residential-school-survivors-settlement-report-1.5470001>.
6 Truth and Reconciliation Commission of Canada, supra note 2 at 170.
7 Indian Residential Schools Settlement Agreement, (8 May 2006), online <http://www.residentialschoolsettlement.ca/settlement.html> at 63.
8 Truth and Reconciliation Commission of Canada, supra note 2 at 130.
9 McLean v Canada, 2019 FC 1075 [McLean v Canada].
10 Anderson v Canada (Attorney General), 2016 NLTD(G) 179 [Anderson v. Canada (Attorney General)].
11 Priscilla Wolf, “Canada says it will address wrongs against Metis students who were forced into Saskatchewan residential school”, (22 July 2019), online: APTN News <https://www.aptnnews.ca/national-news/canada-says-it-will-address-wrongs-against-metis-students-who-were-forced-into-saskatchewan-residential-school/>; “Metis Residential Schools Class Action | Merchant Law Group LLP”, online: <https://www.merchantlaw.com/class-actions/current-class-actions/metis-residential-schools-class-action/>.
12 “Day Scholar Update, February 2020”, online: Justice for Day Scholars <http://www.justicefordayscholars.com/update/day-scholar-update-february-2020/> note: Day Scholars attended the residential schools during the day but returned home at night, whereas day schools that qualify for the approved day school settlement were ONLY day schools.
