School Abuse Victims to Receive Damages
By Stephanie Waddell
Whitehorse Star [Canada]
December 19, 2006
"It is time to move on for Indian residential school survivors who want to bring closure to a very dark chapter in the ongoing relationship between Canada and its aboriginal people."
Yukon Supreme Court Judge Ron Veale made the statement in his recently-released 25-page decision approving the nation-wide residential schools settlement package for the territory.
For the settlement to take effect, nine courts across the country must approve it. Nunavut and the Northwest Territories are the only remaining regions that have yet to decide. Other jurisdictions have granted their approval.
Earlier this year, over three days, a packed Yukon Supreme Court heard from lawyers and residential school survivors, all recommending the deal be accepted.
A total of 28 survivors addressed the court, sharing stories of their experiences in the school system which took first nation children out of their communities and away from their families. At the schools, they weren't allowed to speak their languages nor practise their cultures, Veale noted in his decision.
The common package would see survivors from all approved residential schools between 1920 and 1997 receive $10,000 for the first year they were there and $3,000 for each year after.
A separate process – the Independent Assessment Process – would be established for those who experienced further sexual, physical or psychological abuse at the school.
Additional funding would be provided for healing programs and reconciliation.
" 'Have you ever heard a whole village cry?' " Veale wrote.
"This question was asked by a first nation woman who spoke in court. It captures in one sentence the horror and pain experienced by the parents and children in aboriginal communities when government and church representatives appeared in cars, trucks, vans and planes, to take the children away to institutions."
It wouldn't be possible to do justice to the stories from the estimated 79,000 survivors in his decision, Veale stated.
However, he said, the majority of survivors found it a devastating experience; even more so for those who endured physical and sexual assaults and psychological harm.
It was concluded by the Royal Commission of Aboriginal Peoples that the residential school system was "a blatant attempt to re-socialize aboriginal children with the values of European culture and obliterate aboriginal languages traditions and beliefs. The inferior education, mistreatment, neglect and abuse that resulted are a concern to all Canadians," the judge stated.
Superior courts across the country have been dealing with residential school claims for about a decade, though many have not proceeded to trial.
A number of cases have seen delays while the federal government, which funded the schools, and churches, which operate the schools, review "ancient files" and a large number of records scattered in various departments and locations across the country.
While the Court of Queen's Bench in Alberta had put their cases under one management so that test cases could go ahead, that was delayed pending the larger nationwide settlement.
"Simply put, our court system is not designed to accommodate such a large number of cases in a timely manner. From this perspective, it is likely that most courts will welcome this application to certify a class action and approve the settlement agreement," Veale wrote.
The common package also provides a resolution to a complex political and cultural dispute, the judge ruled.
The Independent Assessment Process is an improvement over the Alternative Dispute Resolution, with an increased cap on individual claims along with coverage for serious psychological harm and income loss, Veale wrote.
A significant commitment for the package includes the federal government continuing to provide mental and emotional support services for survivors under the package.
"This is an enormous benefit for Indian residential school survivors because one of the most consistent concerns raised by survivors themselves in this court is the apparent lack of such support services. While the word 'existing' may be a limiting factor, the commitment of Canada is clear and has undoubtedly created expectations that must be fulfilled," Veale wrote.
"If closure is the goal for Indian residential school survivors, this is a means to achieve that end."
The judge also pointed to the involvement of the Assembly of First Nations and Inuit organizations in reaching the settlement, which Veale noted makes the package more of a political accord rather than a court action.
Courts must be cautious of second-guessing such an accord, the judge wrote.
"It is also significant that court approval of the settlement agreement is subject to the approval of Indian residential school survivors individually. Those that prefer the court process may opt out of the settlement agreement, hopefully after careful consideration and legal advice," it was stated.
If more than 5,000 survivors opt out, the agreement will be void.
Although Veale signed off on the agreement, he also said there were shortfalls in the package, though he did not find any of them enough for him to reject it or put conditions on its approval.
The main issues, Veale wrote, come from the Independent Assessment Process.
Among those issues are the veto power of Canada, which would allow it to veto a decision of the administration committee to refer a dispute to court.
"I interpret the Canada veto to apply only to decisions of the National Administration Committee to refer their disputes to court. It does not apply to the reset of the Settlement Agreement which is under the general supervisory jurisdiction of the courts. It does not prohibit any party or individual survivor from accessing the courts if they feel Canada is not living up to its obligation," Veale wrote.
The judge was also concerned that lawyers dealing with the cases won't have much interest in helping survivors after they're paid.
Several survivors also told the court of their concerns that the federal government will pay only 15 per cent of legal fees under the independent process. That means the rest of the legal fees will likely be paid out of the survivors' settlement.
While it is a concern, the judge noted the 15 per cent is better than the uncertainty that would come from a trial.
"In my view, it will be important for Canada to report to the courts on those claims for the Common Experience Payments and the Independent Assessment Process that are refused, as well as the grounds for doing so, on an annual basis," Veale wrote.
In approving the settlement, he concluded, it is a political and legal compromise rewarding all survivors and paying reasonable compensation to those who suffered serious assaults and harm.
"It provides a path forward to resolve claims that have overwhelmed the court system. It provides a timely resolution in circumstances where the survivors are dying at a rate of 1,000 to 1,300 or more a year," he concluded.
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