Presentation on theme: "Using the Courts to Address Historical Wrongs John McKiggan: Arnold Pizzo McKiggan."— Presentation transcript:
Using the Courts to Address Historical Wrongs John McKiggan: Arnold Pizzo McKiggan
2 A Brief History of Canada’s Indian Residential School Litigation John McKiggan: Arnold Pizzo McKiggan
4 Cultural Assimilation “ We confess that, with the encouragement and assistance of the Government of Canada, The Presbyterian Church in Canada agreed to take the children of Aboriginal peoples from their homes and place them in Residential Schools.” Presbyterian Apology 1998
5 Apology continued… “ In these schools, children were deprived of their traditional ways, which were replaced with Euro- Canadian customs that were helpful in the process of assimilation.”
6 Apology continued… “ In a setting of obedience and acquiescence there was opportunity for sexual abuse and some were so abused. The effect of all of this for Aboriginal peoples, was the loss of cultural identity and loss of a secure sense of self.”
7 Individual Lawsuits 1995 fewer than 12 claims filed By 2005 over 12,000 claims filed 90% allege physical abuse 60% allege sexual abuse Canada denies liability: Pleads limitation defences
12 “Secret” strategy memo …an apology…may imply legal responsibility for the conduct in question.
13 “Secret” strategy memo … it should be labeled as an ‘Acknowledgement and expression of Regret” rather than an ”Apology” per se.
14 “Secret” strategy memo A full scale public inquiry on past child abuse in residential schools could entail considerable risks…
15 “Secret” strategy memo …the publicity surrounding an inquiry could increase demands for compensation, and the risk of additional legal action against the government.
16 “Secret” strategy memo …there is a general disinclination by persons who have suffered abuse to testify on such a personal and painful matter in a public and adversarial forum.
17 “Secret” strategy memo At least until an adverse judicial decision is made, a litigation approach may well keep the number of claimants down to a minimum.
18 “Secret” strategy memo The issue has been raised as to the possibility of a great number of former residential school students launching a massive class action against the Crown…it is unlikely that such an application would be successful. The issue has been raised as to the possibility of a great number of former residential school students launching a massive class action against the Crown…it is unlikely that such an application would be successful.
19 Individual Litigation Blackwater R.C.A.P. “Secret” strategy memo Bernard Class Action (Shubenacadie School) 1996
20 Bernard Class Action Nora Bernard files Class Action for all former Shubenacadie school students Claims loss of language and culture for all students Canada unsuccessfully attempts to strike claim as class action Bernard claim joins Baxter National Class Action 2002
21 Individual Lawsuits Blackwater R.C.A.P. “Secret” strategy memo Bernard Class Action Statement of Reconciliation
22 Statement of Reconciliation “ The Government of Canada today formally expresses to all Aboriginal people in Canada our profound regret for past actions of the federal government which have contributed to these difficult pages in the history of our relationship together. ”
23 Individual Lawsuits Blackwater R.C.A.P. “Secret” strategy memo Bernard Class Action “Statement of Reconciliation” Cloud Class Action (Mohawk School) 1998
24 Cloud Class Action Claim on behalf of all survivors of Mohawk Institute and their families Canada and Church oppose certification: 2001 Ontario Court of Appeal certifies Cloud Class Action: 2004 Canada’s leave to appeal to Supreme Court of Canada denied: 2005
25 Individual Lawsuits Blackwater R.C.A.P. “Secret” strategy memo Bernard Class Action “Statement of Reconciliation” Cloud Class Action Baxter National Class Action 2000
26 Baxter National Class Action Claim for all students who attended a Residential School in Canada since 1920 Claims on behalf of parents and children of survivors Loss of language and culture, emotional, psychological, physical and sexual abuse Canada files 81 third party claims against religious organizations - significant delay
27 Individual Lawsuits Blackwater R.C.A.P. “Secret” strategy memo Bernard Class Action “Statement of Reconciliation” Cloud Class Action Baxter National Class Action Canada starts A.D.R. projects: 2003
28 A.D.R. Projects Government study concludes: “Arguments against certification will be strengthened by the establishment of an A.D.R. model that is a ‘preferable procedure’ to class proceedings. In this regard, creating a model that is more ‘preferable’ to class proceedings should be an overarching consideration in the building of the model.”
29 Court Critical of ADR Court Critical of ADR “It is a system unilaterally created by one of the respondents in this action and could be unilaterally dismantled without the consent of the appellants. It deals only with physical and sexual abuse. It caps the amount of possible recovery…it does not compare favourably with a common trial.” Cloud: Ontario Court of Appeal
30 Individual Lawsuits Blackwater R.C.A.P. “Secret” strategy memo Bernard Class Action “Statement of Reconciliation” Cloud Class Action Baxter National Class Action A.D.R. projects
32 May 30, 2005 Canada appoints federal negotiator Former Supreme Court of Canada Judge, Honourable Frank Iacobucci
33 November 2005 Canada Churches Counsel for Residential School Survivors Assembly of First Nations Agreement in Principle
34 December 2006 National Class Action settlement receives certification and approval
35 Settlement Highlights
36 Common Experience Payment 80,000 potential claimants 2 Billion Dollars: Compensation for Residential School students living on May 30, 2005 Every former student receives $10,000 plus additional $3,000 for each year of residence Average payment $24,000.00
37 Independent Assessment Process Compensation for: Physical abuse Sexual abuse Serious psychological abuse Further payments could total over 2 Billion Dollars
38 Truth and Reconciliation $60 Million for Truth and Reconciliation Commission Promote education and awareness of Indian Residential School system and its legacy Provide students, families and communities opportunity to share Residential School experiences in safe and culturally- appropriate environment Establish a research centre for access to records collected through the work of the Commission
39 Commemoration $20 Million for events and memorials to commemorate the legacy of Indian Residential Schools
40 Healing $125 Million to Aboriginal Healing Foundation, to support healing programs and initiatives
41 The largest class action settlement in Canadian history
42 The largest historical redress settlement in the world?