A recent conference of the Assembly of First Nations warned that former residential school students who opt for litigation face a long wait: the last trial could end in 2053.
The legal counsel for the Assembly of First Nations (AFN) has urged frontline workers working in reserves and native communities to make sure that former Indian residential schools students know that an “opt-out” period, which will commence if the new Indian Residential Schools Settlement Agreement is approved by courts, is “not a vote.”
John Phillips, class action expert and member of the AFN team that negotiated the agreement with government and churches (including the Anglican Church of Canada), said students who have no objections to the agreement “don’t have to say anything,” but those who want to have no part in it must tell the government about their decision in writing.
“No one will be forced to take the deal. If you opt out, you can litigate,” Mr. Phillips told workers based in the eastern region who attended an AFN conference on the agreement at a Toronto hotel Nov. 22 to 24.
But he explained that those who opt out would not be able to avail themselves of the Common Experience Payment (CEP) and the Individual Assessment Process (IAP) provided by the agreement. The CEP provides former students a compensation of $10,000 for the first year of attendance in residential schools and $3,000 for each additional year. He said negotiators estimate that the average stay of students in residential schools was five to six years, which means claimants will get anywhere between $24,000 to $25,000 in CEP. Acceptance of the CEP releases the government and churches from any further court action but allows students who have suffered sexual, physical and psychological abuse to follow the IAP to claim compensation. The IAP replaces the current alternative dispute resolution process.
The “opt-out” period, which will last five months, is a court requirement for class action suits. If 5,000 out of an estimated 80,000 residential schools students opt out of the agreement, “the deal falls, unless government decides otherwise,” said Mr. Phillips, who also clarified that the agreement does not cover former students who attended day schools.
He said that with 12,500 residential schools-related cases in courts, the AFN estimates that the last trial could end in 2053.
AFN chief Phil Fontaine, who gave the keynote address at the conference, described the agreement as “a complex agreement struck by diverse interests” but said that it was the AFN’s view that it was “fair, just and comprehensive” and that it would “enable us to turn the page of our tragic history.”
He also urged frontline workers, many of them former students themselves, not to dwell on how much lawyers are going to benefit from the agreement. “There is a feeling that lawyers are getting rich off our backs. But there are so many good lawyers who have invested in this process to protect our interests and many did important work for years without receiving a single penny because many of the survivors are poor,” he said. “Whatever has been allocated (for lawyers) is reasonable and fair.”
Under the agreement, the federal government will pay $40 million in legal fees to a national consortium of 19 law firms after the settlement is approved, and a further $40 million to Saskatchewan’s Merchant Law Group subject to the verification of claimants. Mr. Fontaine said that the amount represents less than 3 per cent of the agreement, which has an estimated value of $4.5 billion.
Gina Wilson, senior director general of Indian Residential Schools Resolution Canada, said the government estimated the nine courts would make their ruling by December.
Ms. Wilson, who was one of the speakers at the conference, said the government has so far received 12,598 applications for the advanced CEP, which has been provided to students ages 65 and older. She added that government agencies dealing with the schools agreement are trying to address the problem of missing records of former students, which has been a concern raised repeatedly during hearings conducted by courts across Canada.
Ms. Wilson also said that once court agreement is reached, the first $2 million of the $60 million budgeted for the establishment of a Truth and Reconciliation Commission (TRC) would be released.
The Anglican church operated 26 of 80 boarding schools attended by aboriginals from the mid-1800s into the 1970s.