Residential School settlement completes another legal step forward
CANADA: Residential schools agreement approved - Former students have until August to opt out of accord
By Marites N. Sison - Sunday, March 11, 2007
[Anglican Journal] All nine provincial and territorial courts approved on March 8 the revised Indian Residential Schools Settlement Agreement (IRSSA), a move that could mean that the agreement may be implemented by fall.
With the collective approval in place, the "opt-out period," which is a court requirement for class action, begins. This means that former students of native residential schools have until August 20 to declare if they want to opt out of the agreement. If 5,000 out of an estimated 80,000 residential schools students opt out of the agreement, it would be up to the federal government to decide whether to move ahead with the deal.
According to Indian Residential Schools Resolution Canada, former students who require information about the opt-out process can call 1-866-879-4913.
The Council of General Synod (CoGS), the Anglican Church of Canada's governing body between meetings of General Synods, welcomed the announcement. "This is good news," Ellie Johnson, director of the national church's partnerships department, told CoGS in a briefing. Johnson represented the Anglican church in negotiations for the revised accord.
Yukon Supreme Court Justice Ron Veale called the approval a "historical" moment, reported the Whitehorse Star.
Once the agreement is implemented, government will begin accepting applications for the Common Experience Payment and the Individual Assessment Process. The former provides former students compensation of $10,000 for the first year of attendance in residential schools and $3,000 for each additional year. Negotiators estimate that the average stay of students in residential schools was five to six years, which means claimants will receive anywhere between $24,000 to $25,000 in Common Experience Payment. Acceptance of that payment releases the government and churches from any further action but allows students who have suffered sexual, physical and psychological abuse to follow the Individual Assessment Process to claim compensation.
The Anglican Church of Canada renegotiated its agreement last year with the federal government following an announcement in November 2005 of a new $1.9 billion compensation package that would be offered to tens of thousands of aboriginal Canadians who attended Indian residential schools. The Anglican church operated 26 of 80 boarding schools attended by aboriginals from the mid-19th century into the 1970s. In recent years, hundreds of natives sued the church and the federal government, which owned the schools, alleging physical and sexual abuse.
The revised accord will reduce the financial commitments of General Synod -- the church's national office -- and dioceses by almost 40 per cent, or a maximum of $15.7 million. The earlier agreement, signed in 2003, committed the church to a cap of $25 million in compensation.
-- Marites N. Sison is staff writer for the Anglican Journal.
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Press Release ...
Residential School Cases Take Historic Step
TORONTO, March 9 - A historic moment was reached yesterday when provincial and territorial judges involved in the settlement for residential school survivors approved court orders which will move the case forward.
Nine judges from across the country held a joint hearing in Calgary yesterday to hear submissions about the settlement. Eight of the judges approved the orders yesterday and the ninth approval is expected very shortly.
A class action brought by the former students of the Mohawk Institute Residential School (the "School"), a native residential school in Brantford, Ontario, and their families, was settled in November 2005 by way of a national Agreement in Principle between the Government of Canada, the Assembly of First Nations (the "AFN"), legal counsel for Indian Residential School survivors and various religious entities (the "Agreement").
Amongst other things, the Agreement provides for a compensatory Common Experience Payment, for loss of language and culture, to every former Mohawk student who attended a residential school in Canada alive as of October 5, 1996 (the "Payment"), consisting of a $10,000.00 lump sum and $3,000.00 extra for each school year or part thereof after their first year of attendance. At least $1.9 billion will be paid out under this part of the settlement.
Russell Raikes, the lawyer who commenced the class action on behalf of former Mohawk students, said, "This marks the end of an almost decade long battle to secure justice for survivors and their families."
As stated by Kirk Baert, co-counsel with Mr. Raikes, "This settlement means that survivors and their families will no longer have to struggle through complicated, lengthy and expensive court proceedings in order to obtain redress of this historical wrong."
Former Mohawk students commenced a claim in October 1998 against the Government of Canada, the Diocese of Huron and the New England Company. The students sought to recover damages for the harm inflicted on them as a result of them attending the School.
The School was located in Brantford, Ontario, near the Six Nations Reserve. The School was opened in 1828 as a residential school for First Nations' children. It was founded by the New England Company, a charitable organization, with the mission of teaching the Christian religion and the English language to the native peoples of North America.
The New England Company ran the School until 1922, when it leased the School to the Federal Government. Under the lease, Canada agreed to continue the School as an educational institution for native children and agreed to continue to train them in the teachings and doctrines of the Church of England. The School closed in 1969.
The Mohawk class action covers the years of 1922 to 1969. During that time, there were 150 to 180 students at the School each year, ranging in age from 4 to 18 and split roughly equally between boys and girls. All were native children, that is, Indians within the meaning of the Indian Act. In all, approximately 1,500 native children attended the Mohawk School during those years.
The plaintiffs claimed that the Mohawk School was run in a way that was designed to create an atmosphere of fear, intimidation and brutality. Physical discipline was frequent and excessive. Food, housing and clothing were inadequate. Staff members were unskilled and improperly supervised. Students were cut off from their families. They were forbidden to speak their native languages or to practice their native cultures.
The Ontario Superior Court of Justice and Divisional Court of Ontario both refused to allow the case to proceed as a class action. In December 2004, the Ontario Court of Appeal, Ontario's highest court, decided that the courts below erred in refusing to allow the case to proceed, and ordered that it should be certified as a class action and permitted to proceed to trial. The court certified claims for breach of fiduciary duty, negligence and breach of aboriginal rights. The court found that dealing with all of the facts and issues raised in the case should be dealt with in one trial because it would result in a substantial saving of time and expense. The court also found that access to justice would be greatly enhanced by a class action. The evidence before the court was that many of the former students are aging, very poor, and in some cases, still extremely emotionally troubled by their experiences at the Mohawk School.
The Supreme Court of Canada denied the defendants' request for leave to appeal to the nation's highest court in May 2005. On May 30, 2005, the Honourable Frank Iacobucci, former justice of the Supreme Court of Canada, was appointed lead negotiator on behalf of the Government of Canada.
As a result of negotiations between the Government of Canada, the AFN, legal counsel for the survivors and various religious entities, the Agreement was reached on November 20, 2005. In addition to providing for the lump sum Payment, the Agreement also establishes an Individual Assessment Process ("IAP") whereby survivors of residential schools may apply for additional compensation, over and above the lump sum Payment to compensate individuals for sexual and physical assaults perpetrated upon them during their time at a residential school. The IAP will improve the current Dispute Resolution System instituted by the Government of Canada in 2004 which has been the subject of much criticism. It is estimated that another $1 billion will be paid out under this part of the settlement.
A final settlement agreement was reached on May 8, 2006. The federal cabinet approved the deal on May 10, 2006. Nine courts heard motions in the fall of 2006 regarding approval of the settlement. All nine courts approved the settlement and released in December 2006 and January 2007.
The Agreement also dedicates $60 million to a Truth and Reconciliation Commission designed to complete a historical record of the Indian residential school legacy and promote awareness and public education of Canadians concerning the residential schools system and its lasting impact on survivors and their families. The parties sought approval of the Agreement from the provincial Superior Courts across Canada in the fall of 2006.
The plaintiffs are represented by the law firms of Cohen Highley LLP and Koskie Minsky LLP. Both firms are widely acknowledged as leading Canadian class action law firms.
For further information: Russell M. Raikes, Cohen Highley LLP, (519) 672-9330, email: rraikes@cohenhighley.com;. or Kirk M. Baert, Koskie Minsky LLP, (416) 595-2117, email: kbaert@kmlaw.ca.