Residential schools settlement agreement under fire

By Paul Barnsley and Kathleen Martens
APTN Investigates

SIOUX LOOKOUT, Ont.– For the second time this month a call has come to review the Indian Residential Schools Settlement Agreement (IRSSA).

In early May, Chief Bill Erasmus, the Assembly of First Nations executive member who is responsible for the residential schools portfolio, called for a review of the $4 billion out-of-court settlement that allowed the federal government and several churches to escape having to defend themselves against a handful of class-action lawsuits related to human rights violations and criminal acts committed against children who were students at the schools.

Erasmus said there is widespread criticism amongst the survivors about the way some of the defendants in the original class actions – the federal government and the Catholic Church – have conducted themselves as the settlement agreement has been administered.

Then, on May 17, Garnet Angeconeb, a respected long-time advocate for survivors of residential schools, sent a letter to Prime Minister Justin Trudeau, Indigenous Affairs Minister Carolyn Bennett, and several opposition politicians. APTN Investigates obtained a copy of that letter.

Angeconeb added his voice to the call for a review of the settlement agreement. He wants an independent review that is court supervised and free of government influence.

From Lac Seul First Nation in northwestern Ontario, Angeconeb is a member of the Order of Canada. He is also one of the founders of the Sioux Lookout Anti-Racism Committee.

During a phone interview, he said that other survivors have told him repeatedly throughout the pre- and post-settlement process that they felt their needs always came last in what became an extremely complex, legalistic, and bureaucratic process.

Told that many survivors have said they came to see the system as designed by lawyers and bureaucrats for lawyers and bureaucrats, he replied, “Bingo!”

While the survivor of sexual abuse at Pelican Falls Residential School, near Sioux Lookout, acknowledged that a lot of work has been done to address the wrongs of the Indian residential schools, he says the work of healing and true reconciliation is far from over.

“There is meaningful dialogue happening within the country’s chambers of political and spiritual decision makers about reconciliation,” he wrote, “but those discussions cannot leave behind the healing support that many survivors still require. That requirement needs to be measured by way of an independent evaluation – a review – of the Indian Residential Schools Settlement Agreement.

Angeconeb told the prime minister that many survivors feel the Independent Assessment Process (IAP) set up under the IRSSA has not brought closure – and in many cases it hasn’t even brought justice.

“At a recent gathering of survivors, one person questioned and rightfully so, ‘How can I begin to talk about reconciliation when I am not healing?’” he wrote. “Unresolved historic trauma carries with it many heavy complexities. For many, the pain eats away at the very core of their daily existence. The pain must stop. We must learn from the past.”

He told Trudeau a “review of the IRSSA must be conducted to measure the successes and shortcomings and the impacts the agreement had directly on the survivors.”

He was careful to say that the purpose of the review he proposes is not to re-negotiate the agreement. He just wants the agreement to be fully implemented.

“As the life span of the IRSSA is soon to expire, the parties have started to wind down their operations. The courts should lay out a strict deadline for the review to be completed and a final report presented to them so they can determine whether or not all elements of the IRSSA have been appropriately completed, including any funds still owed by the churches,” he wrote.

Angeconeb believes the scope of the review should include the government, the churches, the Indian Residential Schools Adjudication Secretariat, which oversees the IAP and Crawford Class Action Services, the Waterloo, Ont. based company that has administered the settlement agreement on behalf of the nine courts that have supervised the implementation of the out-of-court settlement that brought several class action lawsuits against Canada and the churches to a close.

He also urged the prime minister to ensure the final report of the review be made public.

“In particular, the findings must be made available to the survivors,” he wrote.

A number of complaints have been made against lawyers who represented survivors in the IAP, where the former students related their experiences to adjudicators who then determined what compensation they should receive for the serious physical and/or sexual abuse they say they were subjected to in the schools.

Calgary lawyer David Blott, who represented close to 6,000 survivors in the IAP, was disbarred after an investigation revealed he did not adequately represent his clients. It was found that Blott clients were improperly prepared for meetings with adjudicators, were provided with high-interest loans made against their eventual settlement payments – even though that practice was expressly forbidden by the settlement agreement and by federal law – and were in some cases denied compensation because their written testimony, that was changed by people working with or for Blott, did not match up to their oral testimony during the adjudication meeting.

Many former Blott clients have joined a class-action lawsuit to recover money lost through Blott’s actions. But that lawsuit is presently stalled as federal government lawyers resist disclosing certain information to lawyers acting for the former Blott clients.

Daniel Ish, the now-retired former chief IAP adjudicator, told APTN Investigates in 2011 it was not his job to advocate for the survivors. In fact, he added that there was no one to advocate for survivors within the IAP process.

Survivors who lost out because of Blott’s actions were advised to hire a lawyer and sue civilly to recover the money. The IAP Secretariat did not take any action to review completed files and make corrections once it was proven that many survivors had not received the compensation they deserved because of what a judge called Blott’s wrongful acts.

There have been a number of other investigations into IAP lawyers. When allegations surfaced that Vancouver lawyer Stephen Bronstein employed Ivan Johnny, a convicted murderer, to sign up IAP clients, his practice was reviewed.

Johnny was barred from further participating in the IAP and had his parole revoked, after claimants said he threatened them with bodily harm and allegedly stole compensation money.

Hearings to review complaints made against Kenora lawyer Douglas Keshen will start up in early June.

Additionally, the companies some lawyers used to recruit clients, called form fillers because of the complex, legalistic forms survivors were required to fill out to qualify for the IAP, were also accused of exploiting the former students.

When Manitoba Court of Queen’s Bench Justice Perry Schulman ordered eight form-filling companies and six law firms to make “solemn declarations” to the court describing how they worked together, sources say the declarations were made.

But almost two years after the deadline imposed by Justice Schulman, those declarations have not surfaced in the court file, meaning the public and media – and any interested survivors – are not able to see what was disclosed.

Winnipeg lawyer Ken Carroll was investigated by Crawford after reports that a form filler he was affiliated with accompanied survivors to a bank, stood by while they deposited their cheques and then demanded payment for his services, which should have been included in the legal fees charged by Carroll.

Angeconeb told the prime minister this all leaves the survivors with serious doubts as to whether justice has been done under the settlement agreement.

“To further illustrate the need and significance of a review, survivors who are presently involved with complaints over some lawyers’ alleged actions of misconduct are legitimately asking – ‘What happens to those of us who are dealing with alleged unethical lawyers within Law Societies in terms of restitution – who will continue to monitor these kinds of unfinished business?” he wrote. “With or without a review process, the courts or the court monitors should reach out to all Law Societies and ask them to provide a list of all allegations made against lawyers that they are aware of. A status report should be available which would highlight the cases and provide the timing for resolution for each case. The IAP Secretariat should be made aware of these cases, if necessary, to ensure adjustments are made to the IAP process for the survivors. Will survivors be guaranteed restitution from wherever and whomever? Those survivors who have lodged complaints against lawyers feel re-victimized and they question, who is looking after their concerns: the government, the Adjudication Secretariat, the Law Societies?”

There have been other incidents that have survivors questioning if they received the full benefit of the settlement agreement.

Such as the role of Crawford, retained by the court to act as the court’s monitor of the process and investigate complaints. The money to pay Crawford comes out of the settlement agreement administration budget. Crawford was ordered by BC Supreme Court Justice Brenda Brown to repay to the federal government close to a million dollars for “questionable costs” incurred during the investigation of Stephen Bronstein.

And, a federal government official admitted there was miscommunication with government lawyers that allowed the Catholic Church to escape paying close to $25-million that it had committed in the settlement agreement to raise to pay for healing programs for survivors.

Ron Kidd, a gay-rights activist who lives in Vancouver, took it upon himself to read the IRSSA and check to see if the church had met its commitments.

“When I twice wrote the [Indigenous Affairs] ministry in 2007 asking if the churches had actually paid their share, I did not receive a reply.  I asked [Hedy Fry] my member of Parliament, a former cabinet minister, to ask the ministry if they had paid, but it did not reply to her either,” he said.

For several years Kidd was unable to get an answer to his inquiries.

“In late 2013, the ministry responded to a follow-up on my member of parliament’s 2007 enquiry if the [church] had met their obligations by not answering the question.  In early 2014 it wrote me that the [church] had not met their financial obligations.  It was its first public admission of its continuous failure over a seven year period.”

Kidd then approached Globe and Mail reporter Gloria Galloway, who discovered that the government error had allowed the church to escape its obligation to raise the $25 million.

“When the Globe and Mail published its article about the financial obligations in early 2015, I learned that the Roman Catholic Church had fundraised less than $1 million of its fundraising obligation,” he told APTN Investigates.

On May 5, 2016, Charlie Angus, the NDP-MP for Timmins-James Bay, submitted a written question to the government related to this matter. The government is required to provide Opposition MPs with a response to such questions within 45 sitting days of Parliament. So it will take at least until the fall for the information to come out.

Question Q-2052 asks the Trudeau government the following questions:

“With respect to the Indian Residential Schools Settlement Agreement: with regard to the monitoring and reporting by the government of financial commitments of the Catholic Church, how much of the $29-million in cash donations owed was given to the survivors, how much of the $25-million dollars that was supposed to be fundraised, was fundraised, and of that money how much was donated to the survivors, what was the line-by-line account for the $25-million of in kind donations, how much of the total compensation owed was not distributed to survivors, as it was considered an expense, legal cost, or administrative fee of the Church, did government lawyers negotiate with other churches in order to waive their legal obligations, and, if so, when did these negotiations occur?”

In January of this year, a Saskatchewan court ruling confirmed that Canada was on the hook for another $25-million.

Canada had sued Merchant Law Group (MLG) of Regina, seeking to regain the $25-million it had committed to pay the law firm for its unpaid legal work on one of the class-action lawsuits that pressured the federal government to sign the settlement agreement.

Lawyer Tony Merchant became a familiar figure at survivors’ gatherings across the country in the late ’90s and early 2000s as he signed up as many as 8,000 clients for the lawsuit.

When the IRSSA was finalized, lawyers who had worked on the understanding that they receive nothing until a class action settlement was secured, sat down with the government to seek payment for those efforts.

But Merchant’s billings raised the suspicions of Frank Iacobucci, a retired Supreme Court of Canada justice who had been retained to be the federal representative in the negotiation of the IRSSA.

Canada signed the IRSSA with a clause that allowed it to require proof from Merchant that showed it had indeed done at least $25 million worth of work on the file.

After Merchant’s database was disclosed, Justice Canada lawyers filed suit, alleging that the firm had committed “fraud, fraudulent misrepresentation and deceit” during the negotiation of IRSSA.

But Saskatchewan Court of Queen’s Bench Justice Brian A. Barrington-Foote cited an earlier case where another Saskatchewan judge had decided years earlier that Merchant was entitled to at least $25 million for its efforts leading up to the IRSSA being signed.

Barrington-Foote, on Jan. 20, struck out Canada’s statement of claim, ruling it was an abuse of process because the matter had already been argued and decided in the earlier case.

The judge ruled that Canada should not have entered into the IRSSA if it was so concerned about the legitimacy of Merchant’s billings.

“Canada nonetheless chose to make that bargain. It did so in order to conclude the settlement despite its serious concerns as to the ‘accuracy and veracity’ of Merchant’s representations,” he wrote.

The allegations made by Canada may or may not be true. Survivors may never know for sure because this case has been thrown out of court. But they still wonder if the law firm didn’t profit unduly from their suffering.

Shortly before we learned of Angeconeb’s call for an independent review of the IRSSA, APTN Investigates learned that the secretariat is currently engaged in an internal review in several locations across the country.

“As part of the wind down and completion of the program, [the Indian Residential School Adjudication Secretariat] is undertaking a final report which will document the history of the process, the extent to which the IAP met its objectives, and the impact that the IAP has had on the lives of residential school survivors,” a government document states.

Angeconeb was asked if he trusts the government to review itself. He insists allowing the IAP Secretariat to assess its own performance is not going to be enough to satisfy survivors.

“Well, I’m not sure if I’d allow Colonel Sanders to babysit my chickens,” he said. “I think that’s why, in terms of the review itself, the courts really need to look at it, the agreement being so legalistic. I think it should be the courts that should order the review along with the terms of reference to ensure neutrality because right now we’re going to go into that Colonel Sanders scenario. Already there’s a lot of mistrust with this.”

APTN Investigates asked Dan Shapiro, who succeeded Dan Ish as chief IAP adjudicator, for his reaction to Angeconeb’s letter. He responded in a written, emailed statement.

“Many of the issues that [Angeconeb] raises in his letter are beyond the mandate of the Independent Assessment Process (IAP),” he wrote. “As chief adjudicator in the IAP, I know that it is impossible to design a perfect system that will satisfy all claimants.”

He said more than 34,000 claims of abuse have been dealt with.

“As in any adjudicative system, not all claims meet the criteria of the IAP.  Hence some claims are dismissed.  However, the vast majority of these cases are resolved in favour of former students on terms that are supported by all participants.  More than $3 billion in compensation has been paid out to former students.  We expect to complete the lion’s share of hearings in the IAP this spring,” he added.

The secretariat is not alone in administering the IRSSA and oversight has been provided all the way through the process, he wrote.

“It’s important to remember that the IAP was developed and approved by all parties to the 2007 Indian Residential Schools Settlement, including the Assembly of First Nations, counsel for former students and the Government of Canada. The Settlement Agreement, of which the IAP is a part, was the product of extensive negotiations brokered by retired Supreme Court of Canada Justice Frank Iacobucci.”

He said the IRSSA has been supervised by several judges as well.

“Finally, it’s important to remember that the IAP is a court supervised process.  As chief adjudicator, I report at regular intervals to the nine supervising judges, who are also actively engaged in ensuring that the IAP delivers the benefits to former students that it was intended to do.   In addition to the extraordinary checks and balances built in to this adjudication process, the courts retain the ultimate authority to provide redress in the event that they are of the view that an injustice may have occurred in individual cases,” he wrote.

Angeconeb believes there was one thing that complicated all that oversight.

“It was very political,” he said. “A lot went wrong. But the thing is, we could have learned from those mistakes as other processes are on the horizon such as the inquiry into missing and murdered women. The 60s scoop issue is just on the horizon as well. So I think there’s a bit of a coverup going on here.

He said there are still too many unanswered questions to accept that all of the oversight mentioned by the chief adjudicator guaranteed a flawless and completely fair process.

“There remain a million unanswered questions. What’s going on? Is there a coverup going on? In this case the voice of the weakened, in the case the voice of survivors has to be listened to,” he said. “The word I’m hearing is 25 years ago when the disclosures started coming out, we were victims. Twenty-five years later, now we are re-victimized. It’s a very common quote around here.”

After many years where politicians, lawyers and bureaucrats were in charge, he believes there’s one thing that should have been done all along and it’s not too late to do it.

“I think the courts, as their last ‘do good,’ should look at a process where they actually develop terms of reference and even appoint those that would be very instrumental in providing a review with key stakeholders like survivors on board,” he said.

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