Committee rejects call to investigate discarded residential-school compensation claims

The head of the committee established to oversee the process for compensating people who were abused at Canada’s Indian residential schools has rejected a call to investigate why government lawyers were allowed to use a legal technicality to have many of the claims thrown out.

Mayo Moran, chair of the oversight committee of the Independent Assessment Process (IAP), was asked in writing by Charlie Angus, the NDP’s indigenous affairs critic, to examine the IAP’s decision to discard what is estimated to be at least 1,000 claims on the basis of what is known as the administrative split.

“The oversight committee is not an investigatory body. It was set up to advise on and oversee the independent adjudication process,” Ms. Moran told The Globe and Mail in an e-mail. “The courts have determined that matters of the nature raised by Mr. Angus in his letters are otherwise outside of the mandate and function of the oversight committee.”

The Indian Residential Schools Settlement Agreement, which was the largest class-action settlement in Canadian history, states that the oversight committee is responsible for monitoring implementation of the IAP and for recommending changes that are necessary to ensure its effectiveness.

Starting in 2010, Justice Department lawyers began to argue before IAP adjudicators that some institutions listed in the agreement ceased to be residential schools in the 1950s and 1960s, when Ottawa took over the operation of the educational facilities and left the churches responsible for only the dormitories – which is known as the administrative split.

They persuaded the adjudicators that anyone who was abused in any part of the schools except the dormitories after that split was ineligible for compensation.

Carolyn Bennett, the Indigenous Affairs Minister, has asked her department to conduct an “urgent” review of the use of the administrative split to deny compensation under the settlement agreement.

Ms. Moran said her committee is waiting for the results of that review and would “certainly advise or assist on the implementation of any solution.”

But Mr. Angus said he is left to wonder about the credibility of the entire process when the IAP oversight committee is content to let the government, which is the defendant in the cases that have been thrown out on the “dubious technicality” of the administrative split, determine whether justice has been done.

“Who speaks for the survivors?” Mr. Angus asked. “This is absolutely bizarre. I have never heard of a legal process where people were so disinterested in ensuring that the process respected at least some level of protection for the claimant.”

The IAP, which is expected to wrap up hearings this spring, has processed more than 37,000 claims from people who say they were abused at the schools. As of Thursday, 3,861 claims remained.

Daniel Shapiro, the chief adjudicator of the IAP, has ordered a hold on all remaining claims in which the administrative split could be used to deny a payout until the government review has been completed.

In 2015, Mr. Shapiro dismissed all of the cases involving the administrative split after a judge of the Alberta Court of Queen’s Bench upheld the government’s position that one of the claimants who attended a residential school after the split took place was ineligible for compensation.

But lawyers working on behalf of abuse survivors say the facts of the Alberta case were quite different to those in the majority of claims that were thrown out.

When asked about Mr. Angus’s request for an investigation of the IAP by the oversight committee, Mr. Shapiro’s office pointed out that the chief adjudicator and his team are independent from the parties to the settlement agreement.

“As an officer of the court, the Chief Adjudicator reports to the supervising courts in the carrying out of his mandate under the IAP,” a member of his staff said in an e-mail. “Once Canada’s position following its review is known, the Chief Adjudicator will determine appropriate next steps.”