APTN National News
A residential school survivor was denied compensation for a rape she suffered as a 7-year-old child after federal government lawyers successfully argued the place of the attack did not qualify as a residential school because a different branch of Indian Affairs cut the cheques for teachers who taught there, according to the survivor’s lawyer.
The residential school survivor, who attended St. Michael’s Indian residential school in Alert Bay, B.C., lost her final appeal last autumn under the Independent Assessment Process (IAP) which was created as a result of the multi-billion dollar settlement agreement to determine levels of compensation for abuse suffered by survivors at the schools.
Justice Canada lawyers exploited a technicality in the history of St. Michael’s to convince the IAP adjudicator the survivor did not deserve compensation for a rape she suffered while a Grade 2 student at the residential school.
Justice Canada lawyers argued, and the adjudicator agreed, that the place where the attack occurred did not qualify as a residential school because Indian Affairs’ day school branch-not the residential school branch-paid the teachers there at the time of the incident.
“Nothing else changed except they got their cheque cut by a different department of Indian Affairs and that’s it, but that’s the basis on which she was denied compensation,” said David Paterson, a Vancouver-based lawyer who represented the survivor. “She knows she attended school at the residential school, her mother knows that, her community knows that, even the adjudicator knows that her class was there.”
The top official in charge of overseeing the IAP has now called for a halt of all ongoing cases before adjudicators where Justice Canada lawyers use these types of technical legal maneuvers to disqualify institutions as residential schools.
The move came following statements from Indigenous Affairs Minister Carolyn Bennett and Justice Minister Jody Wilson-Raybould that federal officials would now be reviewing cases impacted by the tactic used by Justice Canada lawyers during IAP hearings on abuse claims over the past six years.
“This is a reasonable request under the circumstances. I ask that you communicate Canada’s request to the parties participating in such cases that are before you, along with your position regarding Canada’s adjournment request,” said Daniel Shapiro, the chief adjudicator, in a bulletin issued last Friday.
It remains unclear what the federal ministers will do about cases that have already been denied by IAP adjudicators. The IAP is an independent, arms-length entity created as a result of a settlement agreement which counts Ottawa as one of the parties.
Paterson says the federal ministers do have some options including consenting to having these select cases re-opened. Paterson said the parties to the settlement agreement could also amend the agreement to overturn decisions based on the technical disqualification of residential schools.
Paterson said the churches, as is apparent in court submissions, and First Nations that are parties to the settlement agreement are on the same side on this issue.
“If Canada changes its mind on this then it shouldn’t be all that difficult to reach a conclusion and unwind these cases,” said Peterson. “It really is in Canada’s court.”
Justice Canada lawyers have succeeded in using the tactic in a string of cases since 2010 when the previous Stephen Harper government decided to exploit so-called administrative splits or technical anomalies in the history of residential schools.
It’s unclear exactly how many cases have been impacted by the tactic. Recent reports have put the number at between 1,000 to 3,000 cases. An official with the Indian Residential School Adjudication Secretariat told APTN National News that an initial analysis put the number below 1,000.
The Secretariat official said Indigenous Affairs would have the exact number of cases.
Despite a request from APTN, Indigenous Affairs had not provided a hard number as of this article’s posting.
It’s believe Justice Canada lawyers have used the tactic against claims from about 50 schools which has impacted at least 500 cases.
Paterson said about 50 or 60 of his clients have been impacted by the tactic.
Generally speaking, since 2010, federal lawyers have combed through the list of residential schools initially agreed to by Ottawa, the churches and residential school survivors as part of the settlement agreement, to find moments in the histories where Indian Affairs’ residential school branch relinquished some level of administrative responsibility-to a provincial body or separate government branch-over institutional operation.
If federal lawyers could link the claimed abuse with an administrative shift or some other technical variance, they would argue, often successfully before the IAP adjudicators, that Canada wasn’t on the hook for the claim because the institution no longer qualified as a residential school at the time.
“They are not all administrative split cases, they are using that term, but there are cases about whether one building on the residential school grounds was part of the residential school or something else,” said Paterson. “In some cases it would be a nursery or a sanatorium where kids with (tuberculosis) would be sent…There is a whole series of different things.”
Paterson was involved in a precedence-setting court case in Alberta that essentially determined in an April 2015 ruling that IAP adjudicators had the power to disqualify residential schools even if the institution was listed as part of the settlement agreement and students who attended there qualified for common experience payments.
The case centred on the Grouard Indian Residential School in Alberta. Paterson’s client attended Grouard from 1956 to 1960. While the survivor usually lived at home, he stayed at the school residence from time to time due to a medical condition, according to summary of the facts contained in the ruling.
The survivor alleged he suffered abuse at Grouard, including having an arm broken by one of the nuns and suffering paralysis as the result of a “negligently applied polio shot.”
Justice Canada lawyers argued that Ottawa had no liability because the institution ceased to be a residential school by 1957. Justice Canada argued the federal government had had transferred the institution to a provincial body by the time of the alleged abuses.
“Treaty Indians” continued to attend Grouard during this administrative shift and the institution continued to receive federal dollars.
The IAP adjudicators, all the way up to the then-chief adjudicator Daniel Ish, agreed with Ottawa’s lawyers.
Paterson said Ottawa’s lawyers and the adjudicators have taken positions at odds with the spirit of reconciliation promised in the settlement agreement-which created the Truth and Reconciliation Commission.
“Does this really…serve the purpose for reconciliation we have set for ourselves as a country?” said Paterson. “Are we really going to go back to a technical, legalistic way of doing things?
NDP MP Charlie Angus says IAP officials share a large share of the blame for allowing Justice Canada lawyers to get away with using this type fo legal tactic.
“The IAP is broken and the people who have the legal responsibility to oversee it have walked on that responsibility and walked on the survivors,” said Angus. “I am worried at how many cases will be brought back to court because of their failure.”