National Post (National Edition)
It’s absolutely ridiculous. This became an industry for everyone involved, including for government.
RESIDENTIAL SCHOOLS SETTLEMENT COST THREE TIMES AS MUCH AS EXPECTED. HOW DID THIS HAPPEN?
— LAWYER STEVEN COOPER ON THE RESIDENTIAL SCHOOL SETTLEMENT PROCESS,
The list is disconcertingly clinical, a catalogue of suffering. “One or more incidents of fondling or kissing.” Five to 10 points.
For physical assaults, including “severe beating, whipping and second-degree burning” — 11 to 25 points.
And at the top of the list: “Repeated, persistent incidents of anal or vaginal intercourse ” — 45 to 60 points.
Through tens of thousands of private hearings, this is how Canada has assigned dollar figures for the abuse of former students at residential schools. The assessments are part of the largest class-action settlement in Canadian history, indeed, one of largest in the world.
But if justice takes time, a decade and 38,000 claimants later, the assessment process for the Indian Residential Schools Settlement Agreement has yet to wrap up, and may take until 2023. That’s left some claimants in painful, years-long limbo. And the cost, originally estimated at $960 million, is so far more than triple that amount, with an added $700 million in administration fees alone – including payments to lawyers who have been allowed to charge both the government and the victims they represent.
How did such a dramatic miscalculation happen?
“It’s absolutely ridiculous. This became an industry for everyone involved, including for government,” said Steven Cooper, a lawyer who helped negotiate the settlement and represented survivors.
Even many claimants who have received money — 89 per cent of those who’ve been heard — have criticisms of the Independent Assessment Process (IAP).
Angela White, program supervisor at the Indian Residential School Survivors Society, said only a small percentage of the people she works with had a positive experience with the IAP. Many survivors, she said, found it “emotionally draining” to have to relive their abuse in such detail.
Some claimants dropped out of contact entirely. According to the Indian Residential Schools Adjudication Secretariat, which oversees the IAP, 743 survivors became so-called “lost claimants.”
“Some survivors went into the Independent Assessment Process thinking that it was going to be easier, that they were going to be listened to and heard and be compensated. And many were, which was a good thing,” said Garnet Angeconeb, who attended Pelican Lake Indian Residential School near Sioux Lookout, Ont., from 1963 to 1969. “However, many also fell through the cracks.”
The secretariat has tried to tackle the problem. In 2014, it developed a protocol for staff, who now search online, use government databases at Health Canada and Indigenous and Northern Affairs Canada, and even approach band offices, RCMP detachments and other local organizations to try to find claimants. To date, they’ve located 478 survivors who fell out of touch.
“I’m not aware of any tribunal anywhere that goes to that kind of effort,” said chief adjudicator Dan Shapiro.
Nobody seems to have predicted how vast this process would become.
The original settlement, negotiated back in 2005, projected 2,500 hearings a year over five years – roughly 12,500 in total. Instead, triple the number of survivors have come forward, with claims totalling $3.137 billion.
“(They) turned out to be abysmally off the mark,” said Warren Winkler, former chief justice of Ontario, who oversaw the negotiations. “They couldn’t have been more wrong.”
It’s hard to get a straight answer, in fact, as to how anybody came up with those original estimates.
“It’s tough to get good data about Indigenous people,” said Wayne Spear, former communications director of the Aboriginal Healing Foundation. Spear’s grandfather attended residential school, and Spear has co-authored two books on the residential school system. “People don’t want to tell the government too much … ‘Why do you want to know these things? What are you going to do with it?’”
Certainly, there were no exact numbers to be had back in 2005, during the negotiations that took place under Paul Martin’s Liberal government. Records from residential schools are spotty, and many who were abused didn’t speak openly about it. There are also cases where children or grandchildren of deceased survivors are pursuing claims on their behalf.
Indigenous and Northern Affairs Canada says a consultant was hired to come up with a number based partly on similar settlements from around the world.
It’s also possible the number was derived from the estimated 18,000 lawsuits filed by former residential school students as of 2005, minus those already settled. That’s the explanation offered by the website of the secretariat.
But if that’s the case, it’s unclear why the government didn’t think more survivors would come forward once a settlement was reached. Roughly 150,000 Indigenous children attended residential schools between 1883 and 1996.
Ronald Niezen, an anthropologist at McGill University who has studied the Truth and Reconciliation Commission (TRC) since 2009, said there was “absolutely no way” to guess how many survivors to expect beforehand.
“These figures often come together with people sitting around a table and saying, ‘Well, how many do you think?’ ” he said. “So it’s just a number pulled out of a hat.”
Not everyone agrees there was no way to know, however. There was at least one other estimate out there at the time.
“The government came up with that number. We disagreed with that,” said Kathleen Mahoney, a law professor at the University of Calgary who was chief negotiator for the Assembly of First Nations. “They didn’t believe us, I guess.”
Mahoney claims the AFN predicted there would be 25,000 claimants — still low, but much closer to the mark. “We had many, many meetings from coast to coast to coast with survivors, and hundreds of them would show up,” she said. “You just have to do some fairly simple math.”
Matt James, an associate professor of political science at the University of Victoria who has studied the TRC, said the government’s extraordinarily low estimate shows that no one understood how bad the abuse was — or cared to.
James pointed to an early AFN report from 1994 that detailed residential school abuses. At the time, the document was criticized in Alberta Report, an Edmonton-based newsmagazine, as being “notably bereft of any substantiation of its more lurid charges.” The article claimed “native militants” were using the report as a pretext to demand compensation from Ottawa.
Before their stories came to light through the TRC, James said in an email, survivors lived in a “climate of disadvantage, disrespect and disbelief.”
This isn’t the only underestimate of its kind. Ireland’s child abuse inquiry for former students of schools run by the Catholic Church, which served as one model for the Canadian settlement, also got it very wrong. The final cost was about five times more than originally forecast, largely because so many survivors came forward.
“Underestimating both the scale and the severity of the abuse is the main driving factor here,” Conor O’Mahony, a senior lecturer in the School of Law at University College Cork in Ireland, said in an email. “It was happening on an enormous scale but no one dared to speak about it until relatively recently.”
There were no caps on the IAP when it was negotiated. No final deadlines, no point when the money would stop flowing. Winkler wouldn’t have bought into it any other way. “I didn’t want anybody to be harmed because somebody was trying to rush them through,” he said.
To give all of those involved in this grim chapter of Canadian history a chance to be heard, the government also mandated that alleged abusers — who face no criminal charges as part of the IAP — be given the chance to appear at their own hearings. To date, the government has issued 5,300 locate requests with private investigation firms, at a cost of $2.3 million.
Many alleged perpetrators have died or refused to attend, but as of late July they had appeared at 822 hearings. The government pays their costs, including up to $2,500 for legal advice.
But it isn’t the tracking of lost claimants or even abusers that has slowed down the process, said Cooper, it’s the paperwork.
“It was dizzying, the amount of bureaucracy that was generated by this process,” said the lawyer. “It took years and incredible delving into somebody’s past to get everything they needed.”
He said the IAP required too much documentation from claimants — a misguided effort, he suspects, to thwart any false claims.
“Why were they asking for tax records? Why were they asking for employment records? Why were they asking for criminal records?” he said. He recalled one claimant for whom he had to make 31 separate document requests, and others with more than 20 requests. “It was a mountain of paperwork, of which we used a molehill.”
Cooper also represented residential school survivors in Newfoundland and Labrador, who reached their own settlement last fall. There, survivors submit written claims and mostly don’t go to hearings. They don’t get the chance to tell their stories out loud, Cooper said, but the process was faster.
“It is almost complete and it was almost without issue,” he said. “I still have cases (under the IAP) that are not resolved for a process that started in 2007.”
For his part, McGill’s Niezen thinks the federal government underestimated the zeal with which lawyers would seek out claimants. The government pays lawyers an amount equal to 15 per cent of the award paid to claimants, and lawyers can charge their clients up to 15 per cent more of those awards.
With the average award coming in just under $92,000, this has proven controversial — some lawyers have charged clients so much more than was warranted based on the amount of time they spent on each claim they’ve been ordered to pay back fees. One had to pay back more than $2 million.
Winkler said if he could make one change to the IAP, it would be to impose more control over lawyers. “We knew it was an area of risk, but it turns out that the problems were more extreme than anyone had imagined,” he said.
Ten years in, the IAP is nearly done. More than 97 per cent of the 38,099 claims filed to date have been resolved.
But it will likely be another few years before the secretariat closes its doors. There are various issues to be resolved, including several institutions that could still be designated residential schools, pending court decisions.
Not everyone sees it as a problem that the process has gone on so long. Some say this is what it takes to give survivors of horrific abuse some measure of justice. “This was a long history,” Spear said. “Don’t expect it to be all wrapped up in five years, seven years. That’s not a reasonable expectation.”
White said the figure of 38,000 survivors is “still low” compared with the true number of abuse survivors out there. Some people refused to participate, she said — her grandmother was one of them. Others didn’t realize there were deadlines. Ten years doesn’t seem like a long time to her.
“To many, I think it was very understated about how big this actually was,” she said. “They thought it would be just a very simple, quick fix, and it wasn’t.”
Indeed, the fact that so many claimants came forward is a testament to the strength of the IAP, said Mahoney. “Generally speaking, it’s been an incredibly successful process,” she said. “And there’s no doubt it’s expensive, because when you hurt somebody, it’s expensive.
“You just can’t walk away from that.”
IT WAS DIZZYING, THE AMOUNT OF BUREAUCRACY GENERATED.