Indian Residential Schools Settlement Agreement
The Indian Residential Schools Settlement Agreement (IRSSA) is an agreement between the Government of Canada and approximately 86,000 Indigenous peoples in Canada who at some point were enrolled as children in the Canadian Indian residential school system, a system which was in place between 1879 and 1996.:1 The IRSSA recognized the damage inflicted by the residential schools and established a $1.9-billion compensation package called CEP (Common Experience Payment) for all former IRS students. The agreement, announced in 2006, was the largest class action settlement in Canadian history.:1 As of March 2016 a total of $1,622,422,106 has been paid to 79,309 former students. An additional $3.174 billion has been paid out as of December 31, 2018, through IAPs (Independent Assessment Process) which are for damages suffered beyond the norm for the IRS.
Indian residential schools
Indian residential schools were a network of "residential" (boarding) schools for Native Canadians (First Nations or "Indians"; Métis and Inuit). Funded by the Canadian government's Indian Affairs and Northern Development, and administered by Christian churches, predominantly the Roman Catholic Church in Canada (60%), but also the Anglican Church of Canada (30%), and the United Church of Canada (including its pre-1925 constituent church predecessors)(10%). The policy was to remove children from the influence of their families and culture and assimilate them into the dominant Canadian culture. Over the course of the system's existence, approximately 30% of native children, roughly some 150,000, were placed in residential schools nationally.
History of the IRSSA
In November 1996 the Royal Commission on Aboriginal Peoples (RCAP) issued its final 4,000-page report with 440 recommendations. Indian residential schools were the topic of one chapter. In 1998 in response to the RCAP the Canadian federal government unveiled Gathering Strength: Canada's Aboriginal Action Plan,:3 a "long-term, broad-based policy approach in response to the Royal Commission on Aboriginal Peoples which included the "Statement of Reconciliation: Learning from the Past," in which the "Government of Canada recognizes and apologizes to those who experienced physical and sexual abuse at Indian residential schools and acknowledges its role in the development and administration of residential schools."
In 2001, the federal Office of Indian Residential Schools Resolution Canada was created to manage and resolve the large number of abuse claims filed by former students against the federal government. In 2004, an Assembly of First Nations Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools led to discussions to develop a holistic, fair and lasting resolution of the legacy of Indian Residential Schools.
The law firm of Regina, Saskatchewan lawyer, Tony Merchant, Q.C.—Merchant Law Group LLP—represented over 7,000 survivors—approximately 50 per cent of "all known" residential school survivors in Canada" who had pursued class action lawsuits" against the Canadian federal government . Following the publication of the 1996 Royal Commission on Aboriginal Peoples report, residential school survivors met across the country at gatherings, also attended by Tony Merchant, who became a "familiar figure", signing up thousands of survivors for a class action law suit. MLG lawyers received "nothing until a class action settlement was secured" in a legal fees agreement that was settlement-driven. David Blott's Calgary, Alberta-based law firm "handled almost 4,600 residential school claims."
On November 20, 2005, an agreement in principle was reached by the negotiating parties which included Canada, as represented by Frank Iacobucci, a retired Supreme Court of Canada Justice, the plaintiffs' representative—the National Consortium and the Merchant Law Group (MLG), independent Counsel, the Assembly of First Nations, Inuit representatives, the General Synod of the Anglican Church of Canada, the Presbyterian Church in Canada, the United Church of Canada, and Roman Catholic Entities for the "resolution of the legacy of Indian Residential Schools."
On 23 November 2005 the Canadian federal government announced the IRSSA compensation package. It represents the largest class-action lawsuit in Canadian history. On 11 June 2008, Prime Minister Harper "apologized on behalf of the Government of Canada, and all Canadians, for the forcible removal of Aboriginal children from their homes and communities to attend Indian residential schools. In this historic Apology, the Prime Minister recognized that there is no room in Canada for the attitudes that created the residential school system to prevail."
In Regina, Saskatchewan, on December 15, 2006, Justice Dennis Ball, approved the "settlement of class and individual residential school claims" under the IRSSA.
Components of the IRSSA
The agreement was announced by the Canadian federal government on 8 May 2006 with implementation in September 2007. The five main components of the IRSSA are the Common Experience Payment (CEP), Independent Assessment Process (IAP), the Truth and Reconciliation Commission (TRC), Commemoration, and Health and Healing Services.
Common Experience Payment (CEP)
The IRSSA offered former students blanket compensation through the Common Experience Payment (CEP) with an average lump-sum payment of $28,000. The CEP, a component of the Indian Residential Schools Settlement Agreement, totaling $1.9 billion, was "part of an overall holistic and comprehensive response to the Indian residential school legacy." Payments were higher for more serious cases of abuse.:1 The CEP recognized "the experience of living at an Indian Residential School(s) and its impacts. All former students who resided at a recognized Indian Residential School(s) and were alive on May 30, 2005 were eligible for the CEP. This include[d] First Nations, Métis, and Inuit former students." This initial payment for each person who attended a residential school amounted to $10,000 per person plus $3,000 per year. The application deadline for CEP was 19 September 2011 with some exceptions made until September 19, 2012. By 31 December 2012, "a total of 105,540 applications were received under the common experience payment. $1.62 billion was paid to "78,750 recipients, representing 98% of the 80,000 estimated eligible former students."
Independent Assessment Process
The IRSSA allotted $960 million to the Independent Assessment Process (IAP), "a settlement fund for claims of sexual abuses, serious physical abuse and other wrongful acts" at IRS which "provides money to those who experienced serious physical and/or sexual abuse at an Indian Residential School...The maximum payment is $275,000, but an additional $250,000 may be awarded for claims of actual income loss." By 31 December 2012, over $1.7 billion in total was issued through the IAP. around three times more applications were received than expected, and the IAP is forecast to continue hearings until around 2017. By 2011 there were already 29,000 claims, double the 12,500 originally estimated by the IRSSA and this number was expected to rise even more. Violent abuse was "rampant, not isolated." According to Dan Ish, Indian Residential School Adjudication Secretariat chief adjudicator for the IAP, estimated in 2012 that IAP claims would be somewhere between two and three billion dollars more than anticipated.
The fate of the records documenting over 38,000 IAP claims was placed in front of Canadian courts. The Supreme Court of Canada decided that on September 19, 2027 all records generated through IAP will be destroyed unless the Survivor mentioned in the record indicates that they wish the record is preserved. The Supreme Court decision indicated that IAP records can only be requested for preservation by Survivors. Family members are unable to ask for records to be saved, meaning that IAP records of people who have died since the time of their IAP claim and before this process was established, will not be saved.
Indian Residential Schools Truth and Reconciliation Commission
IRSSA allocated $60 million for the Truth and Reconciliation Commission (TRC) to document and preserve the experiences of survivors. The Commission was launched 2 June 2008. On 20 October 2008, Justice Harry LaForme, Commission chair resigned, claiming "the commission was on the verge of paralysis and doomed to failure. He cited an "incurable problem" with the other two commissioners — Claudette Dumont-Smith and Jane Brewin Morley — who he said refused to accept his authority as chairman and were disrespectful." On 15 October 2009 the Indian Residential Schools Truth and Reconciliation Commission was relaunched by then-Governor General Michaëlle Jean with Justice Murray Sinclair, an Ojibway-Canadian judge, First Nations lawyer, as the chair. By August 2012, the federal government had released over 941,000 documents to the TRC related to residential schools.
Health and Healing Services
On 31 March 1998 in response to the RCAP and as part of Gathering Strength—Canada's Aboriginal Action Plan, the federal government established the Aboriginal Healing Foundation, "Aboriginal-managed, national, Ottawa-based, not-for-profit private corporation", with a $350 million-dollar grant and an eleven-year mandate from March 1998 to March 2009. Its role was "to encourage and support, through research and funding contributions, community-based Aboriginal directed healing initiatives which address the legacy of physical and sexual abuse suffered in Canada’s Indian Residential School System, including inter-generational impacts." In 2007 Aboriginal Healing Foundation (AHF) received $125 million from the IRSSA to extend the AHF's lifespan to 30 September 2014.
IRSSA also supported the Resolution Health Support Worker (RHSW) Program.
The IRSSA allocated $20 million for the Commemoration Fund for national and community commemorative projects. This fund was managed by the TRC and Aboriginal Affairs and Northern Development Canada.
Dan Ish, upon his retirement from his position as chief adjudicator of IAP, described challenges with private lawyers who allegedly illegally profited from IRSSA benefits. They investigated Winnipeg lawyer Howard Tennenhouse, Calgary lawyer David Blott and Vancouver lawyer Stephen Bronstein and numerous other lawyers. Ish "personally reported Tennenhouse to the Law Society of Manitoba, who eventually disbarred the veteran lawyer and repaid clients nearly a million dollars. A Vancouver judge barred Blott and others he worked with from further IAP work after claimants complained of wrongly being charged loans, fees, penalties and interest-something forbidden under the IAP. And just last month, the IRSAS requested an investigation into Bronstein but settled for a "review" of his practice and alleged connection with a paroled murderer doing IAP intake work." In 2012 the Law Society of Manitoba disbarred Tennenhouse for life. He pleaded guilty to charges and agreed to pay back the "$950,000 in extra fees" he charged 55 former residential school students. In 2014 as the Law Society of Alberta moved to disbar Calgary lawyer, David Blott "accused of misconduct in his handling of settlements awarded to survivors of residential school abuse", Blott resigned. The "investigation into Blott’s action cost taxpayers $3.5 million." Ivon Johnny, a convicted killer, had his parole revoked in January 2013 after "allegations he threatened and extorted...substantial sums of money from vulnerable and in some cases cognitively deficient [IRSSA] claimants. In February 2013 "B.C. Supreme Court Justice Brenda Brown "ordered Bronstein to be interviewed by a court monitor about his alleged dealings with Johnny."
In January 2015, the office of the Attorney General of Canada launched a law suit in the Court of Queen's Bench for Saskatchewan, in Regina, Saskatchewan, on behalf of the Canadian federal government, against Tony Merchant's Regina, Saskatchewan-based Merchant Law Group. Tony Merchant, Q.C., who "is known as the king of class action lawsuits in Canada," and Merchant Law Group LLP had successfully represented about fifty per cent of "all known individuals in Canada pursuing class action lawsuits" against the Canadian federal government as survivors of residential schools. In November 2005, they were part of the negotiating teams that culminated in the multi-billion National Settlement with the Canadian Government−$1.9 Billion in compensation for Common Experience Payments" and $3 billion in Independent Assessment Process (IAP) compensation. The 2015 case against MLG was first launched at the Queen's Court, and appealed at the Court of Appeal before it was heard by the Supreme Court of Canada in 2018. The March 15, 2018 ruling by the Supreme Court of Canada rejected MLG's appeal to have the fraud action struck down, which means the government of Canada can continue with its damages suit against the law firm.
On August 2, 2018, the Supreme Court of Canada dismissed Merchant Law Group (MLG)'s appeal to retain $21,310.83 of a residential school survivor’s compensation" for "outstanding legal bills." The survivor's January 2014 $93,000 IRSSA Independent Assessment Process (IAP) compensation is protected under a 2006 Supreme Court of British Columbia the IRSSA and the Financial Administration Act. Under that Act, lawyers are "expressly forbidden to assign any part of IAP compensation"..."because IAP claimants were considered especially vulnerable." Since 2000, MLG had represented the client and her son. The adjudication secretariat routinely checking IAP files found the deduction for the previous legal bills." When Marchant was told to return the money to the claimant,  he appealed to retain the money for legal fees. In October 2020, the Law Society of Saskatchewan announced their decision to suspend Merchant for eight months, saying that because of the woman's vulnerability, Marchant "should have known better" than to use a disrespectful, and intimidating tone with her, compelling her to sign a form authorizing Marchant to retain her IAP claim to pay for "unrelated legal bills owed by her son." The disciplinary panel said the suspension will start in February 2021 and that Marchant must also pay over C$10,000 in costs. According to an October 2, 2020 Regina Leader Post article, MLG submitted a statement of appeal to the Saskatchewan Court of Appeal to overturn the disciplinary panel's decision, and to overturn the suspension.
The IRSSA stated that the fifty Catholic groups that ran the residential schools −the "Catholic entities"−were required to pay $79 million for abuses suffered by survivors. This included three components− $29 million to the now defunct Aboriginal Healing Foundation, $25 million in "in kind" services and $25 million through a fund-raising campaign. In his July 16, 2015 ruling in the Court of Queen's Bench for Saskatchewan in Regina, Saskatchewan, Justice Neil Gabrielson said the federal government had "released the Catholic entities from all three of their financial obligations under the settlement agreement, including the 'best efforts' fundraising campaign, in exchange for a repayment of $1.2-million in administrative fees." The federal government under then Prime Minister Stephen Harper, had given the Department of Aboriginal Affairs and Northern Development—the mandate to "negotiate a settlement with the Catholic entities" in regards to their financial commitments under the IRSSA. In a 2016 Globe and Mail article, Gloria Galloway, said that "in an attempt to make the Catholic Church pay the full amount of the $29-million cash settlement, the government inadvertently released it from any obligation it might have had to continue with a dismal fundraising campaign."
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