Indian Residential Schools

Between the 1860s and 1990s more than 150,000 First Nations, Inuit, and Métis children were required to attend Indian Residential Schools, institutions operated by religious organizations funded by the Federal Government.

The Canadian government removed First Nation children from their families and communities and placed them in these institutions.

Many children were inadequately fed, clothed and housed, and many were abused, physically, emotionally and sexually. Their languages and cultural practices were prohibited.

In November 2004, the AFN published a report entitled, Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools. The AFN stressed that compensation alone would not achieve the goals of reconciliation and healing. Rather, a comprehensive approach required compensation, truth-telling, healing, and public education.

The Indian Residential Schools Settlement (IRSSA) was signed on May 8, 2006. The parties to the IRSSA included: Canada; the AFN; various Plaintiffs, as represented by a National Consortium of lawyers, the Merchant Law Group, and Independent Counsel; Inuit Representatives; the General Synod of the Anglican Church of Canada; the Presbyterian Church of Canada; the United Church of Canada; and Roman Catholic Church entities.

Between December 2006 and January 2007, nine courts from across Canada issued judgments certifying the class actions and approving the terms of settlement as being fair, reasonable, and in the best interests of the Class Members.

The IRSSA is the largest class action settlement in Canadian history to date. The IRSSA has five components: the Common Experience Payment; Independent Assessment Process; the Truth and Reconciliation Commission; Commemoration; and Health and Healing Services. The two elements of the Settlement through which former students obtained individual compensation are the Common Experience Payment and the Individual Assessment Process.

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 Indian Residential School (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 above $40 million. Under the IRSSA, every former student who was alive as of May 30, 2005 would receive $10,000 for the first year of attendance at a residential school and $3,000 for each subsequent year.

A total of 105,530 former students applied for the CEP. Of these, 79,309 CEP applications were paid and 23,236 applications were deemed to be ineligible. There are currently five active court actions to add schools to the IRSSA. If granted eligibility status, those former 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 BC Supervising Court issued an Order barring any further applications to add schools to the IRSSA, as well as future applications for the CEP.

Independent Assessment
Process

The Independent Assessment Process (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. Compensation for abusive acts and consequential harm is limited to $275,000, and compensation for income loss can be awarded up to $250,000. The claims process 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 38,099 IAP applications were received by the September 19, 2012 deadline, over three times the original estimate. The IRSAS expects to complete IAP hearings by spring 2018 and post-hearing work by 2019. As of May 31, 2017, 36,948 (97%) of received IAP applications have been resolved and 1,151 (3%) are still in progress. There have been 26,555 IAP hearings and negotiated settlements held with a total compensation of $3.126 billion paid out, an amount that includes lawyers’ fees and disbursements.

Truth and Reconciliation Commission

The idea of a truth commission was determined to be necessary as the majority of the Canadian public did not understand the story of the Indian Residential Schools system or appreciate its impact. There was a need to investigate and document the origin, purposes, and effects of residential schools and to have a national truth telling process in order to address the legacy of our shared history. This process was intended to take the burden of the experiences off of former students, their families, and their communities.

The idea of a truth commission was determined to be necessary as the majority of the Canadian public did not understand the story of the Indian Residential Schools system or appreciate its impact. There was a need to investigate and document the origin, purposes, and effects of residential schools and to have a national truth telling process in order to address the legacy of our shared history. This process was intended to take the burden of the experiences off of former students, their families, and their communities.

The TRC completed its work on December 15, 2015. The TRC’s seven-volume final report  detailed accounts of what happened to former students of Indian Residential Schools who were physically and sexually abused, as well as the lasting impacts on First Nation families and communities. The TRC provided 94 Calls to Action to address the legacy of Indian Residential Schools. Among the Calls to Action is a demand for the repudiation of the “doctrine of discovery” that gave European colonizers the right to claim discovered lands as their own, as well as a request to implement the UN Declaration on the Rights of Indigenous Peoples.

Commemoration

The Parties to the IRSSA acknowledged the need to honour the experiences of former students, their families and their communities. A fund of $20 million was established for commemorative projects. The purpose of commemoration was to honour, educate, remember, memorialize and pay tribute to former students. This was accomplished by creating permanent memorials, plaques and traditional structures and/or funding ceremonies or other projects.

Health and Healing Services

The IRSSA stipulated that Canada invest $125 million for the Aboriginal Healing Foundation to provide health supports to former students. This program would provide support for former students in terms of mental and emotional health, with the services provided by Elders and Aboriginal community health workers as well as psychologists and social workers.

Update

As the various components and programs established under the IRSSA begin to wind down, the Parties to the Settlement Agreement have been approaching the Courts to provide judicial guidance regarding residual issues. Outstanding issues currently under review include:

  1. Administrative Split
    A number of IAP claims remain unresolved due to what is known as the “administrative split”. An administrative split occurs where an Indian Residential School was administratively split into a student residence and a federally operated day school. Typically, the churches would operate the student residence and the federal government would run the school building under a separate administration. However, the federal government would still be financially responsible for both. As a result, IAP Claimants are being denied compensation because Canada has been challenging claims on a technical argument that certain schools were transformed into day schools during an individual’s attendance.In February 2016, the Minister of Indigenous Affairs asked her department to conduct an urgent review of their practice of arguing the administrative split in IAP hearings. Since then, the federal government explicitly acknowledged that those who were refused compensation as a result of the administrative-split argument now deserve redress. Federal officials have determined that former students at 22 of the 139 schools listed in the IRSSA were affected by the administrative split argument. IAP claimants who have received an unsuccessful re-review decision because of the administrative split were required to submit a Request for Direction (RFD) for judicial recourse challenging that re-review be submitted by February 27, 2017. This deadline was established by the Supreme Court of British Columbia in a decision on November 29, 2016.
  2. Disposition of IAP DocumentsIn 2013, a disagreement between the Parties to the IRSSA arose in relation to the final disposition of IAP records. The TRC and the Chief Adjudicator both filed a Request for Direction seeking a court order to either: archive all IAP records; or destroy all records upon the winding up of the IAP.At the heart of this legal issue is: who owns the personal accounts of a former student’s experiences while attending an Indian Residential School? Canada argued that all IAP documents and the personal testimonies of former students are government records and, therefore, belong to Canada and can be stored and eventually released to the Canadian public pursuant to federal privacy laws. All other Parties to the IRSSA opposed Canada’s view and encouraged the Court to resist Canada’s attempt to confiscate and seize IAP Claimant’s stories and records. In this regard, the AFN argued that the personal accounts of abuse detailed in IAP records belong solely to former IAP students. As such, IAP claimants must provide their free, prior and informed consent for the archiving of their personal records. A notice plan is being developed to provide IAP Claimants with information on their choices.This matter was originally heard by the Ontario Superior Court of Justice which issued an order that all IAP records be destroyed after a 15 year retention period in which all applicants would be given a choice to consent to the archiving of their personal records. This decision was upheld by the Ontario Court of Appeal. On May 25, 2017, the matter was heard by the Supreme Court of Canada, which has reserved its decision.
  3. Judicial Recourse on IAP DecisionsA number of IAP Claimants are seeking judicial recourse of decisions made by adjudicators within the IAP. Claimants have argued that adjudicators have misapplied the IAP model by, to cite a few examples: importing criminal law standards in the IAP; requiring claimants prove a perpetrator had a sexual intent in carrying out their abuse; requiring that adult perpetrators were employees of the government; requiring that a claimant be a student contrary to the IAP model. Claimants argue that the adjudicator’s misapplication or unreasonable interpretation of the IAP model resulted in the denial of compensation to many claimants.It is generally accepted that the Courts have broad jurisdiction to oversee the implementation of the IRSSA, including the IAP. However, courts have limited their jurisdiction regarding the right to judicial recourse to be available in only “very exceptional circumstances”. While the courts may disagree with an adjudicator’s decision, findings or interpretations, the courts have ruled that such a disagreement with the decision does not equate to a failure to enforce the IRSSA or to apply the IAP model.It appears that the courts are concerned that if the exercise of their jurisdiction prevails, it will open up all of the IAP rulings to further appeals.  The courts have stated that such appeals will result in both significant delays in the conclusion of the compensation procedure in each case and in increased costs to all parties. As a result, the courts have been upholding decisions of adjudicators regardless of how unreasonable the decision is.
  4. NCTRThe work of the National Centre for Truth and Reconciliation (NCTR) has just begun.  The NCTR is a creation of the IRSSA and is to be the permanent archive for all curated materials related to Canada’s Residential School system. Hundreds of historical photos, thousands of hours of video, millions of government documents and church records, and 7,000 survivor statements gathered during the Truth and Reconciliation Commission of Canada (TRC) will be housed in the NCTR. The NCTR is mandated to preserve the memory of Canada’s Residential School system and legacy for future generations.The NCTR will play an important role in educating the public and future generations of the impacts of Indian Residential Schools. The AFN and the NCTR have agreed to embark on this future together by supporting the work of the NCTR and collaborating on initiatives where required.
  5. Final Review of IRSSAThe IRSSA is a contract. As a contract, it is not a prefect agreement but a reflection of negotiations between the Parties. The AFN recognizes that a number of potential class members and schools were not included in the IRSSA, which resulted in the necessity for former students to pursue class actions for day schools and day scholars. Furthermore, the implementation of the IRSSA by the various bodies and actors has not always been consistent with the IRSSA.The application of the IRSSA was not perfect and the agreement was open to abuse, exploitation and misapplication. First, problems arose as a result of a few lawyers acting for former students. Excess fees were charged to claimants beyond that allowable limit under the IAP model. Students compensation were eroded by high interest loans arranged by lawyers, and in some cases IAP applications were improperly completed and abuse exaggerated. Then issues arose regarding form fillers who sought unconscionable contingency fees from claimants. Canada narrowed its view on what its document production obligations were under the settlement agreement.  Schools narratives and persons-of-interest reports did not accurately list abuses. Information from past civil and criminal trials was not included in the school narratives, thus making it more difficult for IAP claimants to prove their case. The administrative split was used to deny compensation. IAP adjudicators have made questionable decisions based on misinterpretations of the IAP model, the erroneous application of criminal law, and imposing a higher threshold on IAP claimants whereby it is easier to secure a finding of guilt in a criminal court than for a claimant to receive compensation in the IAP. Finally, the Courts may share some blame in voluntarily limiting their jurisdiction to reopen unreasonable IAP decisions.When future generations of Canadians review the historical record, it is likely that no Party of the IRSSA will escape some form of wrong doing or omissions. For this reason, the Parties to the IRSSA are now discussing the development of a lessons learned exercise whereby a formal review of the IRSSA will be conducted. The exercise will assess which aspects of the IRSSA were properly implemented to foster lasting resolution, the promotion of healing, education, truth and reconciliation and commemoration. These lessons learned, in turn, will be used to inform and identify future resolution and reconciliation opportunities. The review will also address what went wrong and how can gaps be avoided in the future. The Parties recognize that former students must be part of this exercise.
rdbrinkhurstIndian Residential Schools