using the courts to address historical wrongs
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Using the Courts to Address Historical Wrongs. John McKiggan: Arnold Pizzo McKiggan. A Brief History of Canada’s Indian Residential School Litigation. John McKiggan: Arnold Pizzo McKiggan. Overview. Cultural Assimilation. - PowerPoint PPT PresentationTRANSCRIPT
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
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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
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Blackwater claim filed 1996Blackwater claim filed 1996
Individual LawsuitsIndividual Lawsuits
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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
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
Canada’s “Secret” strategy memoCanada’s “Secret” strategy memo
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““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.
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““Secret” strategy memoSecret” strategy memo
… … 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.
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““Secret” strategy memoSecret” strategy memo
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…
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““Secret” strategy memoSecret” strategy memo
……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.
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““Secret” strategy memoSecret” strategy memo
……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.
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““Secret” strategy memoSecret” strategy memo
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
““Secret” strategy memoSecret” strategy memo
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
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
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
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
Statement of Reconciliation Statement of Reconciliation
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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
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
““Statement of Reconciliation”Statement of Reconciliation”
Cloud Class Action (Mohawk School) Cloud Class Action (Mohawk School)
19981998
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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
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
““Statement of Reconciliation” Statement of Reconciliation”
Cloud Class Action Cloud Class Action
Baxter National Class Action 2000Baxter National Class Action 2000
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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
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
““Statement of Reconciliation” Statement of Reconciliation”
Cloud Class Action Cloud Class Action
Baxter National Class Action Baxter National Class Action
Canada starts A.D.R. projects: 2003 Canada starts A.D.R. projects: 2003
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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.”
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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
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
““Statement of Reconciliation” Statement of Reconciliation”
Cloud Class Action Cloud Class Action
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
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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
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December 2006
National Class Action settlement National Class Action settlement receives certification and approvalreceives certification and approval
3535
Settlement Highlights
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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
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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
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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
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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
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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!