Using the Courts to Address Historical Wrongs John McKiggan: Arnold Pizzo McKiggan

2 A Brief History of Canada’s Indian Residential School Litigation John McKiggan: Arnold Pizzo McKiggan

Overview

4 Cultural Assimilation “ We confess that, with the encouragement and assistance of the Government of Canada, The Presbyterian Church in Canada agreed to take the children of Aboriginal peoples from their homes and place them in Residential Schools.” Presbyterian Apology 1998

5 Apology continued… “ In these schools, children were deprived of their traditional ways, which were replaced with Euro- Canadian customs that were helpful in the process of assimilation.”

6 Apology continued… “ In a setting of obedience and acquiescence there was opportunity for sexual abuse and some were so abused. The effect of all of this for Aboriginal peoples, was the loss of cultural identity and loss of a secure sense of self.”

7 Individual Lawsuits  1995 fewer than 12 claims filed  By 2005 over 12,000 claims filed  90% allege physical abuse  60% allege sexual abuse  Canada denies liability: Pleads limitation defences

8 Blackwater claim filed 1996 Individual Lawsuits

9 Blackwater  B.C. Trial decision: Canada 75% Churches 25%  B.C. Court of Appeal: Canada 100% responsible (vicarious liability)  Supreme Court of Canada: Affirms 75/25 split

10  Individual Lawsuits  Blackwater  Royal Commission on Aboriginal People (RCAP ) 1996

11  Individual Lawsuits  Blackwater  R.C.A.P.  Canada’s “Secret” strategy memo

12 “Secret” strategy memo …an apology…may imply legal responsibility for the conduct in question.

13 “Secret” strategy memo … it should be labeled as an ‘Acknowledgement and expression of Regret” rather than an ”Apology” per se.

14 “Secret” strategy memo A full scale public inquiry on past child abuse in residential schools could entail considerable risks…

15 “Secret” strategy memo …the publicity surrounding an inquiry could increase demands for compensation, and the risk of additional legal action against the government.

16 “Secret” strategy memo …there is a general disinclination by persons who have suffered abuse to testify on such a personal and painful matter in a public and adversarial forum.

17 “Secret” strategy memo At least until an adverse judicial decision is made, a litigation approach may well keep the number of claimants down to a minimum.

18 “Secret” strategy memo The issue has been raised as to the possibility of a great number of former residential school students launching a massive class action against the Crown…it is unlikely that such an application would be successful. The issue has been raised as to the possibility of a great number of former residential school students launching a massive class action against the Crown…it is unlikely that such an application would be successful.

19  Individual Litigation  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action (Shubenacadie School) 1996

20 Bernard Class Action  Nora Bernard files Class Action for all former Shubenacadie school students  Claims loss of language and culture for all students  Canada unsuccessfully attempts to strike claim as class action  Bernard claim joins Baxter National Class Action 2002

21  Individual Lawsuits  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action  Statement of Reconciliation

22 Statement of Reconciliation “ The Government of Canada today formally expresses to all Aboriginal people in Canada our profound regret for past actions of the federal government which have contributed to these difficult pages in the history of our relationship together. ”

23  Individual Lawsuits  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action  “Statement of Reconciliation”  Cloud Class Action (Mohawk School) 1998

24 Cloud Class Action  Claim on behalf of all survivors of Mohawk Institute and their families  Canada and Church oppose certification: 2001  Ontario Court of Appeal certifies Cloud Class Action: 2004  Canada’s leave to appeal to Supreme Court of Canada denied: 2005

25  Individual Lawsuits  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action  “Statement of Reconciliation”  Cloud Class Action  Baxter National Class Action 2000

26 Baxter National Class Action  Claim for all students who attended a Residential School in Canada since 1920  Claims on behalf of parents and children of survivors  Loss of language and culture, emotional, psychological, physical and sexual abuse  Canada files 81 third party claims against religious organizations - significant delay

27  Individual Lawsuits  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action  “Statement of Reconciliation”  Cloud Class Action  Baxter National Class Action  Canada starts A.D.R. projects: 2003

28 A.D.R. Projects Government study concludes: “Arguments against certification will be strengthened by the establishment of an A.D.R. model that is a ‘preferable procedure’ to class proceedings. In this regard, creating a model that is more ‘preferable’ to class proceedings should be an overarching consideration in the building of the model.”

29 Court Critical of ADR Court Critical of ADR “It is a system unilaterally created by one of the respondents in this action and could be unilaterally dismantled without the consent of the appellants. It deals only with physical and sexual abuse. It caps the amount of possible recovery…it does not compare favourably with a common trial.” Cloud: Ontario Court of Appeal

30  Individual Lawsuits  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action  “Statement of Reconciliation”  Cloud Class Action  Baxter National Class Action  A.D.R. projects

31 Lawsuits Continue Lawsuits Continue Bernard Canada’s “Apology” Cloud Baxter ADR Projects

32 May 30, 2005  Canada appoints federal negotiator  Former Supreme Court of Canada Judge, Honourable Frank Iacobucci

33 November 2005  Canada  Churches  Counsel for Residential School Survivors  Assembly of First Nations  Agreement in Principle

34 December 2006 National Class Action settlement receives certification and approval

35 Settlement Highlights

36 Common Experience Payment  80,000 potential claimants  2 Billion Dollars: Compensation for Residential School students living on May 30, 2005  Every former student receives $10,000 plus additional $3,000 for each year of residence  Average payment $24,000.00

37 Independent Assessment Process Compensation for:  Physical abuse  Sexual abuse  Serious psychological abuse  Further payments could total over 2 Billion Dollars

38 Truth and Reconciliation  $60 Million for Truth and Reconciliation Commission  Promote education and awareness of Indian Residential School system and its legacy  Provide students, families and communities opportunity to share Residential School experiences in safe and culturally- appropriate environment  Establish a research centre for access to records collected through the work of the Commission

39 Commemoration $20 Million for events and memorials to commemorate the legacy of Indian Residential Schools

40 Healing $125 Million to Aboriginal Healing Foundation, to support healing programs and initiatives

41 The largest class action settlement in Canadian history

42 The largest historical redress settlement in the world?

43 Thank you for listening!