By Mariam Rajabali
From 1920 to 1996, Indigenous children were removed from their families and placed in federally operated Indian Residential Schools. While attending these schools, many children were harmed physically, emotionally and sexually, and all suffered from the ruptures in their families and communities, causing disastrous ripple effects and leading to devastating intergenerational trauma. After years of unsuccessful individual litigation and attempts to achieve a political solution, class actions were filed and then eventually settled. Widely hailed as a class action success story, the settlement was but the beginning of a long road to resolution. To understand the quality of justice achieved, it is vital to hear from class members themselves.
In 2006, the $1.9 billion Indian Residential School Settlement Agreement (IRSSA) was approved, the largest settlement in Canadian history. The Agreement provided survivors with a minimum of $10,000 Common Experience Payment (CEP), to compensate for the loss of culture, language and education. Class members were also entitled to participate in the Independent Assessment Process (IAP) to claim additional compensation for enumerated types of harm (for example, physical and sexual abuse). The Agreement allocated a further $125 million for healing programs, $60 million for research, documentation and preservations of class member experiences and $20 million for national and community commemorative projects.
While 73% of contested certification motions are successful, there is limited data on the number of settlements that arise from class actions and their respective take-up rates. It is even rarer that data is gathered from settlement administration processes to determine its effectiveness and impact on class members. Given the lengthy process of IRSSA, the National Centre for Truth and Reconciliation (NTCR) conducted a study to understand the impact of the settlement claims process on survivors. The findings are mandatory reading for all lawyers engaged in settlement design, and everyone committed to understanding the access to justice challenges faced by class members, particularly those who have survived historical abuse.
Over 300 people shared their experiences and perspectives with the NCTR. Survivors recognized that there were positive outcomes from IRSSA including public recognition of the residential school system and its legacy; some progress toward healing and reconciliation; commemoration initiatives; and compensation.
The Report makes clear, however, that there were several gaps in the process which led to re-traumatization of many class members. The IAP involved approximately 26,700 hearings. Some survivors’ claims were rejected due to strict or inconsistent interpretations of IRSSA. There was a lack of intergenerational supports and appropriate healing mechanisms (many of the services offered were ineffective as they were virtual or phone-based instead of in-person). Furthermore, some survivors expressed that this settlement did not provide the economic security which survivors needed to participate in the programming offered by the IRSSA, whether that be healing events or a national gathering.
According to the Report, the “most commonly identified challenge relates to the experiences of victimization or re-traumatization”. One-third of the survivors stated that they felt that they had to relive their residential school experiences in order to participate in IRSSA. For some survivors, the trauma and emotions triggered by the process led to loneliness, panic, depression and self-destructive behaviours, including alcohol abuse and suicide.
Survivors also reported that participating in the IRSSA processes was “akin to residential schools themselves, where the Survivors were taken from their communities, brought to buildings that were like compounds, victimized by re-telling their stories in a culturally unsafe manner, and then returned to their communities without support, in a manner that was not trauma-informed”. The process, including what qualified as “evidence”, did not adhere to Indigenous traditions, but rather reinforced Canadian (colonial) standards. The requirements laid out for the IAP were invasive and required disclosure that many were not ready to give. Even so, it was required to fulfill Canadian evidence law standards, resulting in some survivors experiencing a recurrence of their post-traumatic stress disorder while others were unable to give the necessary statements.
Finally, perhaps the most frustrating aspect for survivors was that the entire process seemed complicated and challenging to navigate. They expressed that communication was irregular and there was a lack of information about how eligibility would be determined. There were deadlines that were not publicized well which resulted in some survivors being rendered ineligible for the IAP and CEP. These challenges were only further exacerbated by some lawyers who were taking advantage of survivors, some of whom asked their clients for large legal fees or to sign blank forms. Some survivors recounted stories of being screened out by lawyers before they even got to a hearing while others said lawyers mismanaged their claims.
Although there were many challenges throughout the process for survivors, there were some positive outcomes as well. First, survivors were finally allowed to tell their stories in the ways they wanted and to have their truths recognized; for some, this was important for their healing. Second, there were several supports available before and during the hearings to mitigate the risk of re-traumatization. Third, for those survivors whose claims were accepted, compensation helped improve living conditions or fund community projects. (The report indicates that the average Common Experience Payment was $19,41220 and the Independent Assessment Process led to an average payment of $91,482.62.)
Finally, the apology by the Government of Canada provided a sense of acknowledgement and supported healing within the Indigenous communities.
A settlement in and of itself, especially of this magnitude, can assist in furthering efforts of reconciliation. However, as expressed by the NCTR, as a legal profession we have much more work to do in order for class actions to become a source of healing and justice for communities who are impacted by wrongdoers. It is clear that having cultural competency and the skillset to avoid re-traumatization needs to be at the forefront of legal education in order to better equip lawyers to serve clients with competency and empathy.
To read the full report by the National Centre for Truth and Reconciliation, please click here.
The Class Action Clinic understands that navigating Class Actions and claims forms can be challenging. If you are a potential member of a class action and need support, please contact the Clinic.