The Grand Council of the Crees

Residential School Update Bulletin #3

Posted: 2006-12-19

As was discussed during the community tour by Matthew Coon Come and Diane Soroka, court hearings were held across Canada to approve the proposed Residential School Settlement Agreement. These hearings, which were held at various places, started at the end of August. The last hearing day was on October 23 in Vancouver.

The judgments from these proceedings have started to arrive. As you may have heard, seven judgments were rendered on Friday, December 15. There are two more judgments to be rendered, but our understanding is that they will not be ready until some time in January 2007.

The proposed settlement cannot be implemented until all judgments have been rendered and all the courts have approved the proposed settlement.

The courts did not have the power to change the terms of the proposed settlement, but they were able to make some suggestions and to establish certain requirements regarding its administration.

To date, the seven judges who have rendered their judgments have approved the proposed settlement, but there are some conditions attached to the approval. These conditions have to do with the way in which the settlement will be administered. There is some concern that the administration plan for the settlement is incomplete, and the courts want to ensure that once the settlement is in force, that any delays or difficulties for the claimants will be minimized.

There is a concern that, because of the number of claimants, the claims process will become unmanageable and the courts wish to see a specific plan to deal with some of the administrative deficiencies. Here are some of their comments:

  1. Canada was a defendant in the court cases and it is Canada that will now be administering the settlement. This can cause a conflict of interest and the courts want to make sure the person appointed by Canada to administer the process will be independent and that he/she will report to the courts and be directed by the courts, not by Canada. In addition, once this person is appointed and the appointment is approved by the courts, he/she cannot be removed from office without further approval by the courts.
  2. Canada cannot have a final veto over the costs of implementation of the settlement. The courts must be able to make the orders necessary to ensure that the settlement is implemented properly and that the benefits are delivered in a timely manner.
  3. On the issue of legal fees, there should be no legal fees charged for the Common Experience Payment which will only require a fairly simple form to make a claim. In addition, the courts want to make sure that individual claimants do not have to overpay their lawyers when they go through the Independent Assessment Process. Canada will pay 15% of the amount awarded under the IAP and the courts want individuals to have to pay no more than another 15% to their lawyers. In other words, the courts want lawyers' fees to be limited to 30%, half of which would be paid by Canada. The courts also want the adjudicators to be able to decide if the fees charged are reasonable.
  4. The courts will keep jurisdiction to deal with the implementation of the settlement so that if difficulties arise, they will be able to deal with them and ensure that the survivors get the benefits to which they are entitled under the settlement.
  5. There must be a reasonable process to deal with the issue of missing documents which is causing difficulties in verifying some of the claims.
  6. There were a number of complaints about the first notices which many people all across Canada found to be difficult to understand. The courts want improvements made to the second set of notices.

The approval of the proposed settlement is conditional upon an administrative plan being filed in court to deal with these issues. The parties have 60 days to come up with this plan and the improved notices.

Although it was not made a specific condition for approval, there was also a very strong suggestion that the Prime Minister should issue a full apology in the House of Commons.

What does all of this mean?

We are still waiting for two judgments which may, or may not, contain additional conditions. In addition, the parties are now required to develop a proper administrative plan to implement the settlement. In reality, this probably means there will not be a final approval of the settlement until some time in February.

Then there will be a five month period during which individuals will have to decide whether they want to be a part of the settlement or whether they want to "opt out". If fewer than 5,000 people opt out, then the settlement will come into force and payments can be made. In practice, this means that the payments will probably start in the fall of 2007. This is somewhat later than was originally thought, but the process of having the court hearings in nine different jurisdictions took longer than anticipated.