using the courts to address historical wrongs

Using the Courts to Using the Courts to Address Historical Address Historical

WrongsWrongs

John McKiggan: Arnold Pizzo McKiggan

22

A Brief History of A Brief History of Canada’s Indian Canada’s Indian

Residential School Residential School LitigationLitigation

John McKiggan: Arnold Pizzo McKiggan

OverviewOverview

44

Cultural AssimilationCultural Assimilation

“ “ We confess that, with the encouragement We confess that, with the encouragement and assistance of the Governmentand assistance of the Government

of Canada, The Presbyterian Church in of Canada, The Presbyterian Church in Canada agreed to take the children ofCanada agreed to take the children of

Aboriginal peoples from their homes and Aboriginal peoples from their homes and place them in Residential Schools.”place them in Residential Schools.”

Presbyterian Apology 1998Presbyterian Apology 1998

55

Apology continued…Apology continued…

“ “ In these schools, children were In these schools, children were deprived of their traditional ways, deprived of their traditional ways, which were replaced with Euro-which were replaced with Euro-Canadian customs that were helpful Canadian customs that were helpful in the process of assimilation.”in the process of assimilation.”

66

Apology continued…Apology continued…

“ “ In a setting of obedience and In a setting of obedience and acquiescence there was opportunityacquiescence there was opportunity

for sexual abuse and some were so for sexual abuse and some were so abused. abused. The effect of all of The effect of all of this for this for Aboriginal peoples, was the loss of Aboriginal peoples, was the loss of cultural identity and loss of a secure cultural identity and loss of a secure sense of self.”sense of self.”

77

Individual Lawsuits Individual Lawsuits 1995 fewer than 12 claims filed1995 fewer than 12 claims filed

By 2005 over 12,000 claims filedBy 2005 over 12,000 claims filed

90% allege physical abuse90% allege physical abuse

60% allege sexual abuse60% allege sexual abuse

Canada denies liability: Pleads limitation Canada denies liability: Pleads limitation defencesdefences

88

Blackwater claim filed 1996Blackwater claim filed 1996

Individual LawsuitsIndividual Lawsuits

99

BlackwaterBlackwater

B.C. Trial decision: Canada 75% Churches B.C. Trial decision: Canada 75% Churches

25% 25%

B.C. Court of Appeal: Canada 100% B.C. Court of Appeal: Canada 100%

responsible (vicarious liability)responsible (vicarious liability)

Supreme Court of Canada: Affirms 75/25 split Supreme Court of Canada: Affirms 75/25 split

1010

Individual Lawsuits Individual Lawsuits

Blackwater Blackwater

Royal Commission on Aboriginal Royal Commission on Aboriginal

People (RCAP ) 1996People (RCAP ) 1996

1111



R.C.A.P. R.C.A.P.

Canada’s “Secret” strategy memoCanada’s “Secret” strategy memo

1212

““Secret” strategy memoSecret” strategy memo

……an apology…may imply an apology…may imply legal responsibility for the legal responsibility for the conduct in question. conduct in question.

1313


… … it should be labeled as an it should be labeled as an ‘Acknowledgement and ‘Acknowledgement and expression of Regret”expression of Regret” rather rather than an ”Apology” per se.than an ”Apology” per se.

1414


A full scale public inquiry on A full scale public inquiry on past child abuse in residential past child abuse in residential schoolsschools could entail could entail considerable risks…considerable risks…

1515


……the publicity surrounding an the publicity surrounding an inquiryinquiry could increase could increase demands for compensation, demands for compensation, and the risk ofand the risk of additional additional legal action legal action against the against the government.government.

1616


……there is a general there is a general disinclination by persons who disinclination by persons who have suffered abuse to testify have suffered abuse to testify on such a personal and on such a personal and painful matter in a public and painful matter in a public and adversarial forum. adversarial forum.

1717


At least until an adverse At least until an adverse judicial decision is made, judicial decision is made, a a litigation approach may well litigation approach may well keep the number of claimants keep the number of claimants down to a minimum.down to a minimum.

1818


The issue has been raised as to The issue has been raised as to the possibility of a great number the possibility of a great number of former residential school of former residential school students launching a massive students launching a massive class action against the Crown…class action against the Crown…it is unlikely that such an it is unlikely that such an application would be successful.application would be successful.

1919

Individual Litigation Individual Litigation


R.C.A.P. R.C.A.P.


Bernard Class Action Bernard Class Action

(Shubenacadie School) 1996(Shubenacadie School) 1996

2020

Bernard Class ActionBernard Class Action Nora Bernard files Class Action for all former Nora Bernard files Class Action for all former

Shubenacadie school studentsShubenacadie school students

Claims loss of language and culture for all Claims loss of language and culture for all studentsstudents

Canada unsuccessfully attempts to strike Canada unsuccessfully attempts to strike claim as class actionclaim as class action

Bernard claim joins Baxter National Class Bernard claim joins Baxter National Class Action 2002 Action 2002

2121



R.C.A.P. R.C.A.P.



Statement of Reconciliation Statement of Reconciliation

2222

Statement of ReconciliationStatement of Reconciliation

“ “ The Government of Canada todayThe Government of Canada today

formally expresses to all formally expresses to all

Aboriginal people in Canada our Aboriginal people in Canada our

profound regretprofound regret for past actions of for past actions of

the federal government whichthe federal government which

have contributed to these difficulthave contributed to these difficult

pages in the history of our pages in the history of our

relationship together. ”relationship together. ”

2323



R.C.A.P. R.C.A.P.



““Statement of Reconciliation”Statement of Reconciliation”

Cloud Class Action (Mohawk School) Cloud Class Action (Mohawk School)

19981998

2424

Cloud Class Action Cloud Class Action Claim on behalf of all survivors of Mohawk Institute Claim on behalf of all survivors of Mohawk Institute

and their familiesand their families

Canada and Church oppose certification: 2001Canada and Church oppose certification: 2001

Ontario Court of Appeal certifies Cloud Class Action: Ontario Court of Appeal certifies Cloud Class Action:

20042004

Canada’s leave to appeal to Supreme Court of Canada’s leave to appeal to Supreme Court of

Canada denied: 2005Canada denied: 2005

2525



R.C.A.P. R.C.A.P.



““Statement of Reconciliation” Statement of Reconciliation”

Cloud Class Action Cloud Class Action

Baxter National Class Action 2000Baxter National Class Action 2000

2626

Baxter National Class ActionBaxter National Class Action Claim for all students who attended a Claim for all students who attended a

Residential School in Canada since 1920Residential School in Canada since 1920

Claims on behalf of parents and children of Claims on behalf of parents and children of survivorssurvivors

Loss of language and culture, emotional, Loss of language and culture, emotional, psychological, physical and sexual abusepsychological, physical and sexual abuse

Canada files 81 third party claims against Canada files 81 third party claims against religious organizations - significant delayreligious organizations - significant delay

2727



R.C.A.P. R.C.A.P.





Baxter National Class Action Baxter National Class Action

Canada starts A.D.R. projects: 2003 Canada starts A.D.R. projects: 2003

2828

A.D.R. ProjectsA.D.R. Projects

Government study concludes:Government study concludes:

““Arguments against certification will be Arguments against certification will be

strengthened by the establishment of an A.D.R. strengthened by the establishment of an A.D.R.

model that is a ‘preferable procedure’ to class model that is a ‘preferable procedure’ to class

proceedings. In this regard,proceedings. In this regard, creating a model creating a model

that is more ‘preferable’ that is more ‘preferable’ to class proceedingsto class proceedings

should be an overarching consideration should be an overarching consideration in the in the

building of the model.”building of the model.”

2929

Court Critical of ADRCourt Critical of ADR

““It is a system unilaterally created by one of the It is a system unilaterally created by one of the

respondents in this action and could be respondents in this action and could be

unilaterally dismantledunilaterally dismantled without the consent of without the consent of

the appellants. It deals only with physical and the appellants. It deals only with physical and

sexual abuse. It caps the amount of possible sexual abuse. It caps the amount of possible

recovery…recovery…it does not compare favourably with a it does not compare favourably with a

common trial.”common trial.”

Cloud:Cloud: Ontario Court of AppealOntario Court of Appeal

3030



R.C.A.P. R.C.A.P.





Baxter National Class Action Baxter National Class Action

A.D.R. projects A.D.R. projects

3131

Lawsuits Continue Lawsuits Continue

0

2000

4000

6000

8000

10000

12000

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Bernard

Canada’s “Apology”

Cloud

Baxter

ADR Projects

3232

May 30, 2005

Canada appoints federal negotiatorCanada appoints federal negotiator

Former Supreme Court of Canada Former Supreme Court of Canada Judge, Honourable Frank Judge, Honourable Frank IacobucciIacobucci

3333

November 2005

CanadaCanada ChurchesChurches Counsel for Residential School Counsel for Residential School

SurvivorsSurvivors Assembly of First NationsAssembly of First Nations

Agreement in PrincipleAgreement in Principle

3434

December 2006

National Class Action settlement National Class Action settlement receives certification and approvalreceives certification and approval

3535

Settlement Highlights

3636

Common Experience Payment

80,000 potential claimants80,000 potential claimants

2 Billion Dollars: Compensation for Residential 2 Billion Dollars: Compensation for Residential School students living on May 30, 2005 School students living on May 30, 2005

Every former student receives $10,000 plus Every former student receives $10,000 plus additional $3,000 for each year of residenceadditional $3,000 for each year of residence

Average payment $24,000.00Average payment $24,000.00

3737

Independent Assessment Process

Compensation for:Compensation for:

Physical abusePhysical abuse

Sexual abuseSexual abuse

Serious psychological abuseSerious psychological abuse

Further payments could total over 2 Billion Dollars Further payments could total over 2 Billion Dollars

3838

Truth and Reconciliation $60 Million for Truth and Reconciliation $60 Million for Truth and Reconciliation

CommissionCommission

Promote education and awareness of Indian Promote education and awareness of Indian Residential School system and its legacyResidential School system and its legacy

Provide students, families and communities Provide students, families and communities opportunity to share Residential School opportunity to share Residential School experiences in safe and culturally-appropriate experiences in safe and culturally-appropriate environmentenvironment

Establish a research centre for access to records Establish a research centre for access to records collected through the work of the Commissioncollected through the work of the Commission

3939

Commemoration

$20 Million for events and memorials to $20 Million for events and memorials to commemorate the legacy of Indian commemorate the legacy of Indian Residential SchoolsResidential Schools

4040

Healing

$125 Million to Aboriginal $125 Million to Aboriginal Healing Foundation, to support Healing Foundation, to support healing programs and initiativeshealing programs and initiatives

4141

The largest class The largest class action settlement action settlement

in Canadian in Canadian historyhistory

4242

The largest The largest historical redress historical redress settlement in the settlement in the

world?world?

4343

Thank you for Thank you for listening!listening!

using the courts to address historical wrongs

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