Indian Residential Schools
Annual Report 2016
The AFN continues to play a central role in advocating for the full implementation of the Indian Residential Schools Settlement Agreement (IRSSA) and in achieving the overarching principles of healing and reconciliation for former Indian Residential School (IRS) students, their families and Canadians.
Key Issues and Activities
Implementation of the IRSSA is in the final stages of its mandate. The AFN continues advocacy work on behalf of former IRS students and their families as liaisons with service providers to facilitate the healing and reconciliation. National Chief Perry Bellegarde stood with former students and their families in Ottawa, Ontario as the Truth and Reconciliation Commission ended its mandate and produced its final report on the residential school system.
Common Experience Payment
The Common Experience Payment (CEP) was the first individual compensation program in the IRSSA to be paid to all eligible former students who resided at a recognized IRS. A Trust Fund of $1.9 billion was set aside to pay out the CEP, as well as the Personal Credits if there remained a surplus of $40 million. The December 31, 2012 audit of the Trust Fund indicated a $323 million surplus, triggering the Personal Credits process.
There are 78,750 Survivors that were eligible for the CEP. There are a number of applications to add schools to the IRSSA currently before the courts and, if granted eligibility status, those former Indian Residential School (IRS) students would still be eligible for the CEP, Independent Assessment Process (IAP), and Personal Credits, as well as ongoing participation in TRC or Commemoration activities. However, on July 27, 2015 the supervising court overseeing the IRSSA issued an order barring any further applications to add schools to the IRSSA, as well as future applications for the CEP.
A one-time Personal Credit of $3,000 (no cash value) was made available to CEP recipients, redeemable for either personal or group educational services provided at approved educational entities or groups. A total of 30,770 individuals have applied for Personal Credits. Of this amount, a total of 23,770 individuals were able to redeem their Personal Credits. This would account for 30.1% of all individuals who were entitled to benefit from the Personal Credits program. A total of $57,238,629.05 was paid out in Personal Credits by Canada.
The AFN employed four full-time regional liaisons to ensure that eligible CEP recipients were aware of the availability of Personal Credits and the application process to redeem Personal Credits. Many individuals expressed frustration with the complicated process and timelines to access the Personal Credits, as well as the administrative burden presented by the process. The AFN worked endlessly to assist eligible recipients and appeared before the courts to obtain extensions and other relief to assist former students.
Under the terms of the IRSSA, following the payment of Personal Credits to all eligible CEP recipients, including administration costs, all excess funds remaining in the Designated Amount Fund (DAF) will be transferred to the National Indian Brotherhood Trust Fund (NIBTF) and Inuvialuit Education Fund (IEF) to be used for educational programs under terms and conditions agreed to between Canada, NIBTF and IEF.
The AFN had developed terms and conditions and an administrative plan to enable the transfer of residue of the DAF to the NIB Trust Fund. The Terms and Conditions, as well as the Administration Plan for use of these funds, were approved by the NIB Trust Fund Board on May 26, 2015. The administration plan was presented to the supervising Courts, who granted the requested transfer of the DAF to the NIB Trust Fund on July 27, 2015.
Independent Assessment Process
The IAP is the second individual compensation program available to former students and others who were harmed at an Indian Residential School covered by the IRSSA. The IAP resolves claims of sexual abuse, serious physical abuse and other wrongful acts causing serious psychological injury. It is administered by the Indian Residential School Adjudication Secretariat (IRSAS), a quasi-judicial tribunal that operates independently from the parties to IRSSA, including the Government of Canada. A total of 37,965 IAP applications were received by the September 19, 2012 deadline, over three times the original estimate. IRSAS expects to complete IAP hearings by spring 2016 and post-hearing work by spring 2018.
As of May 31, 2016, 92% of received IAP applications have been resolved and 8% are still in progress. There have been 26,351 IAP hearings and negotiated settlements held with a total compensation of $3.025 billion paid out, an amount that includes lawyers’ fees and disbursements. There are 3,060 IAP claims remaining to be resolved.
In protecting the interests of former students, the AFN has participated in a number of hearings before the court relating to the ongoing implementation of IAP. These interventions included:
a) Blott and Company: The Court Monitor reported that 77 Blott IAP claimants had received over 380 loans from various lenders for which directions to pay had been accepted or facilitated by Blott. Taking all fees and interest charges into account, it appears that 73% of these loans exceeded the criminal interest rate of 60% per annum. The BC Supreme Court decided that the integrity of the IAP and the protection of the clients required a complete transfer of files to other legal counsel. The Court ordered the removal of David Blott, David Blott Professional Corporation, Blott & Company, and any associated entity from the current or future representation of claimants in the IAP or any other process embodied in the settlement.
b) Manitoba Form Fillers: Certain form fillers were retained to assist IAP claimants complete their application forms. Some of these form fillers were associated with law firms. From the evidence presented to the court, IAP claimants would be charged between a 15% to 30% contingency fee to their lawyers, plus a 15% to 25% fee to the form fillers. The Manitoba Court of Queen’s Bench ruled that certain (albeit large) categories of form filling contracts are in fact illegal and unenforceable. Even if not illegal, other contracts may be unconscionable and therefore voidable at the option of claimant signatories. The court held that IAP claimants are entitled to enter into contracts with form fillers for services other than legal services, so long as they are not on a contingency fee or assignment basis.
c) St. Anne’s IRS: St Anne’s Indian Residential School is located in Fort Albany, Ontario on James Bay. St. Anne’s was the site of some of the most egregious incidents of abuse within the Indian Residential School system. The Ontario Provincial Police began its investigation of St. Anne’s residential school in 1992 and completed it in 1996. The OPP were given approximately 992 signed statements from about 700-750 people. In 1997, the OPP laid charges against seven former employees of St. Anne’s. Canada came to be in the possession of copies of some, but perhaps not all of the OPP documents, and it failed to include information in the St. Anne’s school narrative and persons of interest (POI) reports. The Ontario Superior Court of Justice ordered Canada to produce the OPP documents in its possession, the transcripts concerning incidents of abuse at St. Anne’s and such other documents that comply with the proper reading and interpretation of Canada’s disclosure obligations under Appendix VIII to those preparing the narratives and the POI reports.
d) Bronstein: The Monitor brought a Request for Direction before the court in relation to the IAP practice of Stephen Bronstein and Bronstein & Company. The BC Supreme Court agreed with the Monitor that Bronstein’s conduct fell below the standard expected of legal professionals representing clients under the Settlement Agreement, and in particular, in the IAP. However, in response to these proceedings, Bronstein has demonstrated that it is capable of revising its practice in order to reach acceptable standards. Thus, the Court allowed Bronstein to continue to participate in the IAP, but under the continued supervision of its Practice Advisor who will continue to update the court on its progress. The Court noted that this was no exoneration of Bronstein, as the evidence convinced the court that were it not for the intervention of the Monitor and the court itself, Bronstein would not have reached these acceptable standards. This decision is under appeal.
e) IAP Records: The Chief Adjudicator of the IAP and the Truth and Reconciliation Commission each brought a Request for Directions about what is to happen to documents produced and prepared for the IAP (“IAP Documents”) once the IAP process comes to an end. The court was asked to determine if the documents are of historical value and should be retained in archives or should they be destroyed. The Ontario Superior Court of Justice and Ontario Court of Appeal ordered that all IAP records be destroyed, but only after a 15-year retention period, during which the former students of the Indian Residential Schools may choose to spare some of their documents from destruction and instead have the documents with redactions to protect the personal information of others transferred to the National Centre for Truth and Reconciliation (“NCTR”). Canada has filed for leave to appeal the Ontario Court of Appeal’s decision with the Supreme Court of Canada.
f) Bishop Horden IRS: Nine IAP claimants filed a Request for Directions seeking the production of records relating to Bishop Horden IRS. The Claimants allege that, based of their recollection, in the 1960s a number of adult supervisors were dismissed and/or criminally charged with various offenses. However, the school narratives and person of interest reports for Bishop Horden IRS do not include any information on these events. The Ontario Superior Court of Justice Ordered Canada to conduct further searches of police records, produce such records and revise the Bishop Horden School Narrative for use in the IAP process.
g) SL1 Claims: The AFN appeared before the Manitoba Court of Queen’s bench in support of IAP claimants who were denied compensation for certain types of touching that occurred while attending an Indian Residential School. The AFN argued that IAP adjudicators were applying a narrow interpretation to Sexual abuse level 1 (SL1) claims, thereby preventing claimants from obtaining the full benefits of the IRSSA that they were entitled to. A decision from the Court is under reserve.
h) Administrative Split: Canada had raised a jurisdictional defense based on the administrative split to defeat a number of IAP claims. An administrative split occurs where Indian Residential School was administratively split into a student residence and a federally operated school. Typically, the churches would operate the student residence and the federal government would run the school building under a separate administration. The AFN is in the process of negotiating a resolution to the administrative split issue with Canada.
Day Scholars & Day School Class Action
Tk’emlups te Secwepemc and Sechelt (Shíshálh) First Nation launched a class action for day scholars from their respective communities. A certification hearing took place before the Federal Court of Canada from April 13 - 20, 2015 regarding a proposed class proceeding for students who attended Indian Residential Schools as day scholars. Both the Tk’emlups te Secwepemc and Shíshálh Indian Bands initiated the application on behalf of all Aboriginal children who attended Indian Residential Schools as day scholars – returning home every night to their families. National Chief Bellegarde and the AFN Executive showed their support and attended the opening of the day scholars’ litigation on April 2015 in Vancouver, and participated in a feast honouring the survivors hosted by the Squamish First Nation.
The class action law suit, which was certified on June 4, 2015, seeks compensation for those day scholars as they suffered the same loss of language and connection to culture as those who were resident at the schools. The suit alleges that these losses were an intentional aspect of Canada’s education policy and caused serious and life-long harm to the survivors.
There are three categories of class members for the purposes of the BC Day Scholars class action: (1) Survivor – this class consists of all Aboriginal persons who attended at one of the Schools, but only for periods that were not compensated through a Common Experience Payment; (2) A Descendant of a Survivor – consisting of all persons who are the children of survivor class members or were adopted either legally or traditionally by a survivor or their spouse; (3) The Band Class – currently consists of the Tk’emlups te Secwepemc, but others can opt-in. To date, 94 separate First Nations opted to be included in the class action lawsuit representing every province where an Indian Residential School was located.
Resolution 21/2011 passed at Annual General Assembly in Moncton called on the AFN to provide moral, political, legal, and financial support as able to the Tk’emlups te Secwepemc and Sechelt First Nation Day Scholars and Day Students Class Action and other legal actions, using available and appropriate means such as the First Nations Rights Fund. The AFN will continue to provide political support to the Tk’emlups te Secwepemc and Sechelt First Nation day scholars and day students.
Truth & Reconciliation Commission
The TRC held a national closing event in Ottawa from May 31, 2015 to June 3, 2015 where 94 Calls to Action were released. The Calls to Action invite Canada, all Canadians and governments to work together on a comprehensive plan to close the gap in child welfare, education, health and justice outcomes; support Indigenous languages; for all governments to fully adopt the United Nations Declaration on the Rights of Indigenous Peoples; and to jointly develop a new Royal Proclamation and Covenant of Reconciliation to collaboratively advance reconciliation in Canadian society. The AFN will push for all parties to formally commit to a plan to learn from the TRC findings and implement the Calls to Action.
On December15, 2015 the TRC released its final report on Indian Residential Schools. The AFN continues to support the findings of the TRC, as well the pursuit of reconciliation and healing.
Next Steps – Moving Forward
- Seek commitment from all parties and governments to work with First Nations to review and learn from the work of the TRC and implement the Calls to Action for reconciliation.
- Continue support and advocacy for justice for day scholars and day school students.
- Continue advocacy with and for the Healing Centres to meet the ongoing specialized treatment programming needs of former IRS students.
- Continue advocacy, as directed by AFN Executive, to protect the interests of former IRS students in Requests for Direction with the courts.