Residential school survivors still await settlements

1,151 UNRESOLVED

MAURA FORREST After a decade, and more than $3 billion paid out to survivors, it could still take several more years before the process to compensate students who suffered the worst abuses at residential schools is finally wrapped up.

The independent assessment process (IAP), established in 2007 as part of the Indian Residential Schools Settlement Agreement, was originally created to resolve an anticipated 12,500 claims from survivors who were physically or sexually abused at residential schools. The initial budget for compensation was $960 million.

A massive underestimate on both counts. To date, more than 38,000 people have applied for compensation and $3.1 billion has been paid out. Combined with another payment that went out to all former residential school students as part of the settlement, more than $4.7 billion has been paid to survivors.

Ten years on, more than 96 per cent of the IAP claims have been resolved, according to a report to be released Wednesday by the secretariat that oversees the process. But the remaining claims and outstanding legal disputes could drag on — possibly until 2023.

Doug Racine, who heads the Aboriginal Law Group in Saskatoon that has represented about 2,000 IAP clients, said he originally thought the process might take as little as five years.

“But then it became pretty evident within, say, year seven that we were in for the long run,” he said.

Of the original claims, there are 1,151 that have yet to be resolved, of which 647 have yet to go to a hearing. Most of them never will. They’re the most difficult claims — cases where the survivor has died and family members are pursuing the claim, or where claimants are representing themselves.

The report estimates about 50 claims will still make it to a hearing, with the last ones occurring next year. But that won’t be the end of the process.

The IAP can take a long time — up to two or more years in some cases. If claimants disagree with the outcome of their hearing, they can request a review, and then a re-review. In certain instances, they can then take their claims to court.

Chief adjudicator Dan Shapiro said that as the number of claims has dwindled, lawyers have started taking more of them to court. “There’s been a very distinct change in trends over the last couple of years,” he said, as the number of court cases has “ramped up.”

Racine is one of those lawyers, with about five cases before the courts. But he said he’s doing it as a matter of principle in cases where he believes his clients were wronged, and he doesn’t stand to make much money from it.

“Certainly I have no desire to drag this process out and I wish it was all over,” he said. “But how can I allow … the Government of Canada and the secretariat away with what I think are complete travesties?”

Still, the secretariat can’t close its doors until all these cases are resolved, one way or another.

Another major source of uncertainty is that four schools — in Nunavut, Ontario, Saskatchewan and Manitoba — could still be designated residential schools, pending court decisions. If they are, their combined 2,300 former students could also qualify for compensation. If that happens, Shapiro said, the secretariat might not shut down until 2023.

With the process designed the way it is, the federal government has little control over how long it takes and how much it might cost. The secretariat has spent $438.9 million to date.

Shapiro suggested the process might have been structured differently had the government known just how many claimants would come forward.

There is some evidence that Ottawa has since taken a different approach. Last fall, the federal government agreed to a $50-million settlement with former residential school students in Newfoundland and Labrador who hadn’t been included in the original settlement. Those claims will mostly be decided based on forms, not hearings, and claimants won’t be able to take their cases to court. But whether those claimants end up satisfied remains to be seen.

Though it’s cost time and money, the IAP has given residential school survivors the chance to tell their stories out loud, in person.

“It does really provide them with an opportunity that would have been lost to them,” said Shapiro. He doesn’t believe the process, as it exists right now, could move any faster.

“You know what? They set up these rules. These rules have timelines. No one’s abusing these timelines. It just is what it is,” said Racine.

“I think we owe it to the survivors to finish this thing properly.” coping with a large dose of OxyContin, she said.

Turner was one of nine people listed by the plaintiffs’ lawyer, Ray Wagner, as objecting to the $20-million agreement, with $2 million going to health authorities and about a quarter expected to be assigned as legal fees.

Murphy said the average pay out for between 1,000 and 1,500 Canadians might amount to between $13,000 and $18,000, depending on how many people qualify.

The judge thanked the 51-year-old for her submission and said it, along with a submission by Adam Spencer of Moncton, N.B., gave him “pause.”

However, Murphy ruled he would accept the proposed settlement, echoing the decision of an Ontario Superior Court judge that the amount falls within a “zone of reasonableness.”

The Nova Scotia judge said he accepted arguments that if the case had proceeded to trial there were formidable legal obstacles to overcome and it could have meant years more of delay in the 10 year old case.

“If the case proceeds to litigation, there is a significant risk that the claims against the defendant will not succeed,” he said.

The plaintiffs had argued that the U.S.-based manufacturer didn’t provide adequate warning about potential addictions. However, Purdue did not admit liability in the national settlement.