By Jim West
The federal government has launched a new upgraded system for reaching out-of-court settlements with more than 12,000 former students who suffered physical and sexual abuse at church-run schools across Canada.
The new$1.7 billion dispute settlement plan will allow victims, for the first time, to sue the government and churches for loss of language and cultural damages in the 130 schools that were developed nationwide to “Christianize” aboriginal children.
The federal government’s plan to speed up settlements, announced last December, was designed to resolve up to 18,000 cases out-of-court in seven years. Ottawa would cover 70 per cent of the cost of damages for physical and sexual abuse and unlawful confinement. The churches would pay the remaining 30 percent.
But fierce resistance from plaintiffs delayed the process and forced Ottawa to consider changes. Applications were originally to be released last spring.
Ralph Goodale, the minister in charge of clearing the huge backlog of residential school lawsuits announced the changes to the government’s “fast track” plan on Thursday, November 6, at a press conference in Ottawa.
“After careful consideration of all the factors, two contentious release requirements were changed,” said Goodale.
The first required plaintiffs who enter out-of-court settlement talks to sign off on any future litigation even before an adjudicator ruled on whether the claims warrant consideration.
The second required plaintiffs to forgo future claims for language and cultural losses, which the federal government refuses to consider.
Changes allow future claims
Ottawa’s plan to fast track settlements so far has only included compensation for physical, sexual abuse and unlawful confinement.
The changes announced mean that plaintiffs won’t have to give up the right to future claims for such damages as cultural loss.
According to the government, at the current rate it would take at least 50 years to get through the backlog of 12,000 abuse claims at a cost of at least $2 billion in legal fees alone.
“That status quo scenario could mean that most claimants will simply die before their claims are resolved,” said Goodale.
Instead of clogging up the courts for decades, Goodale wants abuse victims to consider using the alternative dispute mechanism where claimants would fill out a form and take it to an independent adjudicator.
Goodale said that the alternative process could end the backlog in just seven years.
Claimants would be required to fill out a 58 page-long form and present school and work records to validate their claims.
“We think there will be survivors who will have simply no choice but to try it out,” said Darcy Mekur, a lawyer with the Toronto-based law firm Thompson Rogers.
His firm is leading a class action lawsuit that, if certified, will seek $12 billion for all kinds of abuses.
Native input lacking
Critics of the new system charge that the dispute mechanism was drafted with little First Nations input. They say that Ottawa’s move to award damages uses a point system that some have labeled a “meat chart.”
The points system awards small amounts for less serious abuses and up to $100,000 or more for the most brutal assaults.
Government officials said that the system merely reflects how damages are typically calculated in civil proceedings.
They stress that Ottawa will spend $172 million over the next ten years to help restore aboriginal languages that were forbidden in residential schools.
AFN national chief, Phil Fontaine, said that the alternative dispute resolution process is a good start but needs to be expanded into a more comprehensive package that includes healing and compensation.
“Any attempt at redress must recognize the diversity of the survivors and their individual experiences. This includes not only financial considerations, but mechanisms by which we can learn to deal with their experiences, overcome the effects and begin to heal,” said the national chief.
Noting that the government has only been willing to deal with cases of physical and sexual abuse, Fontaine further noted that research studies have documented the tremendous impacts of the residential school experience on the identity of First Nations survivors.
The subsequent inter-generational impacts that further erode culture and identity that can lead to dysfunction at the individual and community level.
The AFN say that over 60,000 residential school survivors and their families suffer from the after effects of the residential school experience.
“For many survivors, compensation is only part of the answer,” said Fontaine. “What we further need is an approach that allows survivors, elders, counselors and communities to be involved in the healing process.”