The federal government has reached financial agreements with the first of many people who were harmed as children at an Indian residential school but whose claims for compensation were unfairly denied as a result of a legal tactic employed by Justice Department lawyers.
Settlements negotiated over the past several days mark the end of years of injustice for former students who were told that, because of a change known as the administrative split, they were ineligible for payments offered under the Indian Residential Schools Settlement Agreement to those who suffered physical or sexual abuse.
The settlements come more than a year after The Globe and Mail first reported that claims were being improperly rejected, prompting Carolyn Bennett, the Indigenous Affairs Minister, to order her department to investigate.
Tara Shannon, the director-general of the settlement agreement branch of Indigenous and Northern Affairs, told The Globe on Wednesday her department has been contacting lawyers for all 174 people whose claims the year-long probe indicated may have been denied or reduced as a result of the administrative split.
“We have made 11 offers, so far, to settle claims that have been affected and, so far, six of those claims have been accepted,” Ms. Shannon said. “Approximately $500,000 will be paid out to those six once the settlement documents have been signed.”
In claims that were rejected by an adjudicator of the Independent Assessment Process (IAP), the non-adversarial method established under the residential schools agreement for determining compensation, the government is offering a negotiated settlement.
In cases that had not yet been decided by an IAP adjudicator, the government is offering an interview process that Ms. Shannon described as “lighter” than a hearing.
“We don’t want to revictimize claimants,” she said. “It’s difficult for claimants to go before an adjudicator and tell their story, so we do not wish to force claimants to do that.”
The residential schools – which were a combination of educational institutions and boarding facilities – were established in the 1800s. In 1968, the government began running some of the schools separately from the residences. That was known as the administrative split.
Late in 2010, three years after IAP hearings began, Justice Department lawyers started arguing – often successfully – that schools listed in the settlement agreement that had been split ceased to be residential schools at that time and that students who were abused at one of the institutions after the split should be disqualified from receiving compensation.
Kathleen Mahoney, a lawyer for the Assembly of First Nations who met with Indigenous Affairs officials last week to discuss the administrative split, said many people who were abused would not be on the government’s list of 174 because they were turned away before they could get to a hearing.
Ms. Shannon said the list includes 45 claims that were withdrawn by the claimant after an adjudicator’s decision at a prehearing teleconference.
But, she said she “anticipated” other administrative-split claims were admitted into the IAP and then withdrawn before the prehearing teleconference took place. The IAP secretariat is trying to identify those people, and the government “will continue to explore options for recourse,” she said.
The Independent Assessment Process, which expects to hold its final hearing later this year, has settled more than 36,000 claims and paid out more than $3.1-billion in compensation.
But Ms. Mahoney remains frustrated with the way the government has handled the administrative split. She said she believes the government should reconsider many cases that were rejected involving schools not currently covered by what Indigenous Affairs defines as the administrative split – those that were divided up after 1968.
Ms. Mahoney said the term “administrative split” should apply in cases such as those of former students who were disqualified because they were abused in an infirmary or on a playground rather than in a classroom or residence, or during a field trip. And several other jurisdictional arguments were also used to disqualify claimants, Ms. Mahoney said.
“To have this thing end on a sour note like this would not be a good outcome at all for anybody,” Ms. Mahoney said. “To have the government take this position at the very end of the process is very unfortunate and they should rethink it.”