Allan Donovan Click here to see full sized version.

The lasting legacy of Indian Residential Schools on aboriginal communities is profound. Over 10,000 survivors of the residential schools, in many cases victims of physical and sexual abuse turned to the courts to seek compensation from Canada and the churches for the wrongs perpetrated at the schools. The dispute resolution process launched by Canada in 2003 has been a failure; it was hugely expensive to administer and resolved relatively few claims.

With the acknowledgement for the need of a more comprehensive strategy to resolve the legacy of residential schools, Canada charged former Supreme Court of Canada Justice, Frank Iacobucci, with negotiating a fair and timely resolution to the residential school legacy.

On November 23, 2005, Canada announced that an Agreement in Principle (the “AIP”) had been reached between Iacobucci, certain plaintiffs’ counsel, the Assembly of First Nations, and the churches. While clearly an improvement over the significantly flawed dispute resolution process, the AIP, in its current state, is not the panacea that some are claiming it to be. Rather, the proposed package fails to provide the foundation for a fair and lasting resolution to the residential schools issue.

In at least four significant ways, the AIP is fundamentally flawed. If these shortcomings are not rectified, the AIP will have failed to address the tremendous harm that the residential schools experience and legacy has had on First Nation individuals and communities across the country.

Denial of common experience payment to those who proceed by legal action

The AIP proposes a Common Experience Payment (“CEP”) to be paid directly to all living former students — an attempt to compensate for the common harms all former students experienced. This payment is designed to compensate for the loss of family, culture and language, and is distinct from any further wrong that was committed against students within the walls of residential school.

In order to access the CEP, however, survivors must release Canada and the churches from all legal claims arising from the residential school experience. Former students must resolve their claims through the dispute resolution process, rather than through the courts. While presented as providing equal treatment for all former students, the AIP framework in fact excludes victims who choose to pursue their claim in court. Utilized in this manner, the CEP represents the proverbial carrot, dangled before former students in an attempt to eliminate their recourse to the judicial system.

If the new dispute resolution process is a fair and reasonable one, survivors will opt to take part in the process. Victims of horrific treatment at residential schools, however, should not be punished for choosing to pursue their claims in court.

Flaws in the new independent assessment process

The Independent Assessment Process (“IAP”) is developed to replace the current dispute resolution process as the vehicle by which a former student may pursue a claim based on sexual or physical abuse suffered while at residential school. While the IAP represents an improvement over the dispute resolution process, particularly in recognizing a broader class of abuse perpetrators, the proposed IAP needs revision in the method it uses to award compensation.

A claimant must prove to the adjudicators on a balance of probabilities that the abuse occurred. The adjudicators will then award “compensation points” to claimants. These points originate from tables that attempt to determine the exact nature and frequency of the sexual and physical assaults. The points are then tallied up and correlated with a specific range of compensation.

By attaching “points” to various forms of sexual abuse, the IAP dehumanizes the residential school victims, reducing the egregious treatment of students to a numbers game. Further, this “points system” is inconsistent with well-established principles of tort law in that it eliminates consideration of the effects of the abuse on the victim. It is certainly arguable that singling out aboriginal people who were sexually and physically abused as children, and refusing to address their legal claims by way of established legal principles, does dishonour to the Crown and the churches.

Back door application of limitations periods

The AIP proposes implementation by way of a class action lawsuit. All former students who do not wish to participate in the class action lawsuit would be permitted to “opt-out” of the proposed resolution. Unless a former student opts-out however, he or she would be considered to be part of the class action lawsuit.

The AIP, therefore, proposes to place time limits upon victims of sexual abuse. This approach is at odds with Canadian law, which provides certain protections to the victims of childhood sexual abuse from the harshness of limitation periods. In practice, the AIP structure will presume that former students have waived their legal claims simply because those individuals have not yet come to terms with the sexual abuse and its impacts. Victims of childhood sexual abuse are able to pursue civil claims if and when they are ready to do so. The law recognizes the shame and secrecy involved in sexual abuse.

Loss of language and culture

Residential schools were meant to assimilate aboriginal children. The impacts of this legacy on aboriginal language, heritage and community have been profound, negative, and long-lasting. The proposed AIP, however, does not include a commitment by Canada to provide redress for these impacts.  The AIP should correct this oversight by proposing funding programs to promote and help rebuild the cultures that the residential school system sought to destroy.

Canada and the churches have demonstrated a genuine desire to move in the direction of a fair reconciliation of the residential school issue. While the proposed AIP displays some positive momentum, Canada and the churches must show true leadership and resolve by negotiating a final proposal that is both legally and ethically sound.

Allan Donovan is a lawyer at Donovan & Company in Vancouver. Donovan & Company is a 10-lawyer firm practising exclusively in the area of Aboriginal Law.