Several First Nations representatives are arguing in federal court today to seek better terms for the Indian Day School Settlement Agreement announced last month by the federal government between Canada and Ontario-based law firm Gowling WLG.
While some support the agreement in principle as a positive step, other survivors of abuse insist that the details and specifics contained in the 227-page agreement need more work. Seven Ind9genous organizations are seeking intervenor status to allow them to put forth their concerns, including a better approach to reconciliation.
From the last 1800s through to the 1990s, First Nations, Métis and Inuit Day School students were forced to attend federally-run institutions across the nation.
“Many suffered physical, sexual, and psychological abuse, as well as neglect and assimilation practices,” a press release said.
“The pattern of abuse, neglect and assimilation was similar to the abusive treatment suffered by the survivors of Indian Residential Schools, who succeeded in negotiating a historic settlement agreement in 2007, which provided not only for compensation but also for the Truth and Reconciliation Commission.”
Day schools were similar to residential schools, a key difference being that day school students were allowed to return home at the end of the day, whereas residential school students stayed at the school for most of the year.
The number of Day School survivors involved in the recently-announced settlement is in the range of 140,000, about three times the number of Residential School survivors. The group seeking to testify in court represents thousands of former day school students in Quebec, Nunavut, Saskatchewan, Alberta and Manitoba.
One of those groups is the Federation of Sovereign Indigenous Nations (FSIN). Eight-nine day schools were located in Saskatchewan. FSIN objects a number of terms in the agreement, including the one-year time deadline for survivors to apply for compensation. Residential School claimants were allowed a five-year timeline.
“Many are concerned that one year is not enough time for survivors in remote communities, those who are incarcerated, those in care homes, and those currently residing in other countries, to learn about the claims process, file the necessary paperwork and gather the various documents that are set out in the agreement as being required to support their claims,” a press release said.
Survivors are arguing in court that the agreement will exclude many survivors entirely.
Eleanor Sunchild, a Cree lawyer from Poundmaker First Nation in Saskatchewan is representing a number of survivors in Federal Court in Calgary.
“Extending the time deadline does not mean a slowdown, or that it will take longer to receive compensation, but means simply that survivors will have more time to apply and to obtain the support required for their claim,” she said.
Other lawyers working on the case include Lisa Abbot, legal counsel for the FSIN and Gordon Kirkby and Philip Fourie of Prince Albert.
The press release was signed by several lawyers and was sent to the Herald by the Kirby Fourie Coertze firm.
Another complaint cited is that the deadline and process do not take into account or fully appreciate trauma and impacts suffered by survivors. That includes the short deadline and “onerous” paper application requirements the intervenors say will prevent survivors from obtaining justice.
The paper application process, it is being argued, also does not provide the opportunity for former day school attendees to chose their own “trusted and culturally competent” legal counsel to assist them with the application process. It also doesn’t provide support for mental health or cultural support, the press release said, contrary to what was in the residential schools agreement.
“As well, the evidentiary burden required to support or validate a claim further reduces the likelihood that survivors will be able to navigate this on their own. As a result, many will abandon their claim. The Day School Settlement Agreement also provides for a very limited appeal process for claims that are denied, which fails to meet due process requirements and is procedurally unfair.”
Groups are also arguing that the paper application process misses the opportunity for storytelling by survivors.
“This storytelling is essential to Indigenous culture, healing and restoration,” the press release said.
“A streamlined, culturally sensitive, and respectful process designed to assist survivors in telling their stories would simplify the claims process, and also provide acknowledgement and restoration, resulting in lasting benefits not only to survivors but to their families and communities.”
FSIN chief Bobby Cameron is seeking more meaningful engagement to improve the settlement terms.
“First Nation governments and organizations were not engaged at nearly the same level in the negotiations, consultation, and consensus-building as they were for the Residential Schools Agreement.”
Cameron said he was not provided with an opportunity for discussion with Minister Carolyn Bennet, and only learned about the settlement in the news. He is aware of only a handful of Saskatchewan First Nations visited by the Ontario law firm that negotiated the agreement before it was signed.
Appropriate terms that include “a process that rights the historic wrongs, is restorative and does no further harm to survivors, and leaves a positive and lasting legacy is true Reconciliation”.
The amount of the settlement is also being disputed. Not only are proposed amounts n the settlement smaller than those set aside for residential school survivors, but there is also no provision for a base compensation payment for attendance only. Instead, survivors will have to establish that they suffered some type of abuse to claim compensation.
Residential school survivors only had to establish they attended an institution to receive compensation.
Jeremy Bouchard, a partner in Gowling WLG, the law firm handling the settlement, told the Saskatoon Starphoenix that members of his firm have travelled across Canada to speak with day school survivors and Indigenous leaders about what they wanted to see in the settlement agreement.
He said there is a demand for “a process that’s simple, user friendly” and treats claimants with dignity and respect.
A written statement issued by Gowling this week says the simple, paper-based process means survivors don’t have to hire a lawyer to submit their claims.
Bouchard said his firm is “fully committed and resourced” to provide legal support to people regardless of where they live.
He said the firm is designing “a robust support program for claimants which will include on-the-ground as well as digital, language, legal and culturally-appropriate mental health supports for people across the country.”
Gowling has said the absence of hearings saves survivors from having to go on a witness stand and be cross-examined about their stories.
The firm says the one-year deadline also reflects what survivors want.
“One of the challenges that we saw from the very beginning is that we are running out of time. We lose 2,000 survivors every year. So this process is designed to provide payment as quickly as possible to everyone who is eligible,” Bouchard said.
The federal approval hearing is scheduled to run May 13 to 15 at federal court in Winnipeg. There, a judge will determine if the proposed settlement is fair and in the best interests of day school survivors.
— with files from Andrea Hill, Saskatoon StarPhoenix