FW: Residential Schools--re: House of Commons hearing
Jean Koning
Feb 15, 2005
Submissions to the House of Commons Standing Committee on
Aboriginal Affairs and Northern Development
Re: Study on the Effectiveness of the Government Alternative Dispute Resolution
Process for Resolution of Indian Residential Schools Claims
Submissions by the National Consortium of Residential School Survivors’ Counsel
The National Consortium
The National Consortium of Residential School Survivors’ Counsel (the “National Consortium”) is a group of 20 law firms from across Canada acting on behalf of over 6,500 victims of the residential school tragedy that have sued Canada for the wrongs done to them.
Our clients have authorized us to speak on their behalf and to demand compensation from the Government as a means of holding the Government accountable for the shameful residential school program it orchestrated.
The victims and their families demand an immediate, fair, efficient, comprehensive and binding resolution of all residential school issues.
Fair resolution of residential school claims is a matter of utmost urgency as an estimated 2,500 residential school survivors die uncompensated each year.
Members of the National Consortium have seen the Government use every available strategy to delay and deny justice to residential school survivors in what we believe to be a concerted effort to coerce our aging clients to accept whatever half-measures are offered to them.
Our clients seek compensation for all residential school survivors without the necessity of a hearing (similar to the Japanese Internment settlement) and our clients support a negotiated resolution implemented through a National Class Action (like in the Hepatitis C settlement).
The Litigation
By way of background and to give the Committee some idea of the experience and
perspective we bring to these deliberations, members of the National Consortium
are supporting the following litigation against the Government:
· The Blackwater v. Canada case—a case that decided that the Government was 100% responsible for residential school abuse—the Government has appealed the decision and the case is scheduled to be heard by the Supreme Court of Canada in May, 2005;
· The Alberta test cases—all of the thousands of residential school lawsuits in Alberta are being case managed in a test case process—the test cases are scheduled for trial in January of 2006 and will directly address aspects that are important to survivors but that Canada refuses to recognize in any current settlement process;
· The Cloud Class Action—a Class Action on behalf of all residential school survivors of the Mohawk Institute in Brantford, Ontario and their family members was certified by the Ontario Court of Appeal in December of 2004—leave to appeal that decision has been sought by the Government and a decision on leave is expected this spring; and,
· The Baxter National Class Action—a National Class Action has been advanced on behalf of all residential school survivors in Canada (all estimated 85,000 living residential school survivors) and their family members—the Baxter National Class Action is being managed by the Honourable Mr. Justice Warren Winkler of the Ontario Superior Court of Justice and a case conference is scheduled for February 16th at which time a motion for certification date will be requested.
Inadequacies of the Government’s Response to Residential School Issues
The National Consortium believes that the Government’s response to residential school issues has been nothing short of a national disgrace.
The Government’s response has been one of almost casual cruelty, in which bureaucratic process has been allowed to trump decency and humanity.
While paying lip-service to the suffering and harm caused by residential schools, the Government of Canada has made the road to justice almost impassable for the survivors.
In the name of creating "options" -- as though residential school survivors were buying a car -- the government of Canada has created its own, ever varying, self-serving system of half-measures which will drag out the resolution of residential school claims for decades. Those measures are costing taxpayers far more than they have to and they are costing survivors even more dearly with their lives.
The only option for our clients is justice and the ADR process does not provide justice for our clients.
The National Consortium makes the following specific criticisms of the Government’s Response to Residential School Issues:
1) Offensive Financial Mismanagement:
o Every year Indian Residential Schools Resolution Canada spends $4 on administration for every $1 on compensation;
o Since its launch, the Government’s ADR program has spent an estimated $100 million on administrative costs with only an estimated $1 million being paid in compensation;
o The Government is about to spend another $5 million on hiring investigators to challenge the credibility of residential school victims;
o The Government has come up with a resolution scheme that is so complex it had to spend millions hiring “Form Fillers” to assist people in applying to the process;
o 27% of the Department of Justice Civil Litigation department is devoted to defending residential school claims with few if any settlements achieved and with an unduly restrictive mandate for negotiation of settlements; and,
o The Government’s ADR Model B process offers maximum compensation of $3,500 with per hearing administrative costs averaging over $20,000.
2) Resulting Re-victimization:
o The ADR scheme prevents and restricts victims from talking about the full nature of the abuses they suffered at residential school and limits their evidence to proof of physical and sexual abuse. Without addressing their entire residential school experience and the harmful effects on their lives, the program delivers none of the promised healing for survivors;
o Despite spending over $20,000 on administrative costs to conduct an ADR hearing for an elderly residential school survivor named Flora Merrick, the Government sought an appeal of the mere $1,500 awarded to her though the process; and,
o The Government continues to suggest that residential school victims deserve compensation only for serious physical abuse and for sexual abuse thereby suggesting that the other forms of abuse experienced by residential school survivors were somehow appropriate.
3) Government Misconduct:
o When designing the ADR scheme, the Government refused to consult residential school victims in Alberta because the victims wanted their legal counsel to be present;
o The Government has prevented survivor organizations from supporting the Baxter National Class Action;
o While the Government represents that their ADR process covers instances of ‘wrongful confinement’ they have defined wrongful confinement so narrowly that not one application to the ADR has even tried to meet the criteria for wrongful confinement as they have defined it;
o The Government continues to boast about their “successful and fair resolution options” while at the same time acknowledging publicly that the system is gravely flawed;
o The Government is well aware that its “options” are too slow for survivors. Recently they sent a letter to survivor’s counsel offering, in certain limited circumstances, to pay claims even though the survivor has died. This shows in a chilling way, where the government's priorities are. It would rather see victims die than change its processes to ensure they are compensated in their lifetime;
o The Government of Canada has persistently ignored the call of both the Royal Commission on Aboriginal Peoples and the Law Commission of Upper Canada for a Public Inquiry into the Residential School tragedy; and,
o The Government has refused to even participate in any discussions with residential school lawyers relating to a comprehensive resolution of residential school issues. No responsible litigant let alone the Government of Canada should behave in such a cavalier fashion.
4) Survivor Mistrust:
o In the same time it has taken the Government’s ADR scheme to resolve 50 cases, over 2,500 residential school survivors have died;
o The Department of Justice has appealed virtually every residential school decision to date;
o Despite accepting applications to the ADR by survivors of the Mission Baptist Residential Schools in the Yukon, the Government has now delisted that school as one eligible for the Government’s ADR;
o Our clients see the Government’s ADR scheme as a unilaterally imposed, bureaucratic answer from those that victimized them through the residential school system. They do not trust and will not participate in any system devised and implemented unilaterally by Canada;
o Survivor mistrust is shared by the Courts. Recently the Ontario Court of Appeal dismissed the ADR with the following words: “It is a system unilaterally created by one of the respondents in the action and one that could be unilaterally dismantled without the consent of the appellants.”; and,
o Our clients are seeking a comprehensive resolution through an independent decision maker whose impartiality they can trust.
It seems that there is no political will on the part of the Government to try to make amends for the residential school tragedy. Instead, the Government of Canada appears content to allow survivors to die uncompensated while they seem to continue to offer the bare minimum necessary to attempt to delay and dissuade the ongoing litigation.
The Solution
The National Consortium believes that the Government must immediately negotiate a fair, efficient, comprehensive and binding resolution to all residential school issues. This could readily be accomplished under the auspices and supervision of the Ontario Superior Court through the Baxter National Class Action.
The National Consortium believes that resolution through the Baxter National Class Action would provide a binding and impartial mechanism to ensure the fair implementation of any resolution.
If a resolution cannot be achieved through good faith negotiations, any legal disagreements and the certification of the Baxter National Class Action should be fast-tracked for consideration by the Supreme Court of Canada.
Recommendations
The National Consortium requests that the House of Commons Standing Committee on Aboriginal Affairs and Northern Development make the following recommendations:
- That the federal government immediately negotiate a fair, efficient, comprehensive and binding resolution of all residential school claims under the auspices of the Ontario Superior Court of Justice in the Baxter National Class Action;
- That any comprehensive resolution be implemented under Court supervision and approval throughout the process; and,
- That the Government’s spending on residential school claims administration be subject to an immediate audit by the Office of the Auditor General of Canada.
We thank you for the opportunity to make and present these submissions.
___________________________
Alan Farrer
Spokesperson for the National Consortium of Residential School Survivors’ Counsel
Thomson, Rogers
Suite 3100, 390 Bay Street
Toronto, Ontario
M5H 1W2
Tel: 416-868-3217
Fax: 416-868-3134
Warren W. Marsh
I am posting this for June Maffin who is unable to post to the list.
You may have to cut and paste the URLS.
Warren+
Hi everyone,
Seems I can't post to the list - interesting discussions on marriage lately.
Thanks to Brian and Warren, the following can be posted. :-)
Some bg: My son, Tod (who was the founder of "Anglicans Online" -
egads ... that's ten years ago!) has been a CBC (Canada's national
broadcaster) radio personality, technology consultant and program
host. One of the things he does as a hobby is to put out a blog
called "I Love Radio."
Well, it seems that it has been nominated for a prestigious award -
the Business Blogging Awards (proud Mom beams from ear to ear! <g>)
and the decision will go this Tuesday to the technology blog that gets
the most votes. So, what's the favour?
It's that you will "vote" online for "I Love Radio" at Business Awards
today before midnight.
At first I was reluctant to ask for votes but I figured that if
Hollywood can go as far as it goes to garner votes for favourite
movie, actor etc., and if his strongest competition publishes a
magazine and is asking for votes through that media outlet, I can put
out an email ... :-) So, if you're so inclined to vote - here's the
URL.
http://www.businessbloggingawards.com/index.php/archives/2005/02/03/best-media-blog/
Click the dot beside I Love Radio and then press the Vote! button.
And, thanks for considering this request. :-)
If you'd like to see Tod's other blogs - you can find them at this site:
http://radio.blogware.com/blog/_archives/2005/2/5/304021.html
May this be a healthy, holy, healing Lent for us all. Namaste, June
--
ju...@maffin.ca www.junemaffin.com www.soulistry.com
http://junesjottings.blogspot.com/ www.flickr.com/photos/junitha
"In the midst of winter, I found within me an invincible summer." -
Albert Camus
EW. TED CLARKE
It says: "In the name of creating "options" -- as though residential school survivors were buying a car -- the government of Canada has created its own, ever varying, self-serving system of half-measures which will drag out the resolution of residential school claims for decades. Those measures are costing taxpayers far more than they have to and they are costing survivors even more dearly with their lives."
Are you aware of how many have filed spurious claims hoping to get enough to buy a new truck? Do you know how much those claims have cost the church and the government in just legal fees?? And that without ever going near a ccourt room??? You are right when you say it is costing taxpayers far more than necessary. [and the church]
But what does it mean to say it is "Costing survivors even more dearly with their lives"????????
For every complain there is also the "other side" of the story
I would hope that Christians would seek for Balance as well as justice
TED Clarke
Jean Koning <jean.k...@sympatico.ca> wrote:
Jean Koning
It says: "In the name of creating "options" -- as though residential school survivors were buying a car -- the government of Canada has created its own, ever varying, self-serving system of half-measures which will drag out the resolution of residential school claims for decades. Those measures are costing taxpayers far more than they have to and they are costing survivors even more dearly with their lives."
Hi Ted: I recognize and accept that there is always another side to every
story. In this post you are offering
your side of the story, which you are entitled to do. I also listen to Aboriginal peoples’ side of the story, and
to the National Consortium’s side of the story. As all sides are posted and comprehended, there is the possibility
that eventually there will be a meeting of minds. More importantly, there is the hope that eventually justice for
all will be achieved. Thank you
for sharing your thoughts with the list. Jean.
·
·
The Blackwater v. Canada
case-a case that decided that the Government was 100% responsible for
residential school abuse-the Government has appealed the decision and the case
is scheduled to be heard by the Supreme Court of Canada in May, 2005; ·
·
The Alberta test cases-all of the thousands of residential school
lawsuits in Alberta are being case managed in a test case process-the test
cases are scheduled for trial in January of 2006 and will directly address
aspects that are important to survivors but that Canada refuses to recognize in
any current settlement process; ·
·
The Cloud Class
Action-a Class Action on behalf of all residential school survivors of the
Mohawk Institute in Brantford, Ontario and their family members was certified
by the Ontario Court of Appeal in December of 2004-leave to appeal that
decision has been sought by the Government and a decision on leave is expected
this spring; and, ·
·
The Baxter National
Class Action-a National Class Action has been advanced on behalf of all
residential school survivors in Canada (all estimated 85,000 living residential
school survivors) and their family members-the Baxter
National Class Action is being managed by the Honourable Mr. Justice
Warren Winkler of the Ontario Superior Court of Justice and a case conference
is scheduled for February 16th at which time a motion for
certification date will be requested.
Inadequacies of the Government's Response to Residential
School Issues The National Consortium believes that the Government's response to
residential school issues has been nothing short of a national disgrace. The Government's response has been one of almost casual cruelty,
in which bureaucratic process has been allowed to trump decency and humanity. While
paying lip-service to the suffering and harm caused by residential schools, the
Government of Canada has made the road to justice almost impassable for the
survivors. In the
name of creating "options" -- as though residential school survivors
were buying a car -- the government of Canada has created its own, ever
varying, self-serving system of half-measures which will drag out the
resolution of residential school claims for decades. Those measures are costing taxpayers far more than they have
to and they are costing survivors even more dearly with their lives. The
only option for our clients is justice and the ADR process does not
provide justice for our clients. The National Consortium makes the following specific criticisms of
the Government's Response to Residential School Issues:
1) 1) Offensive
Financial Mismanagement: o
o
Every year Indian Residential Schools Resolution Canada spends $4
on administration for every $1 on compensation; o
o
Since its launch, the Government's ADR program has spent an
estimated $100 million on administrative costs with only an estimated $1
million being paid in compensation; o
o
The Government is about to spend another $5 million on hiring
investigators to challenge the credibility of residential school victims; o
o
The Government has come up with a resolution scheme that is so
complex it had to spend millions hiring "Form Fillers" to assist
people in applying to the process; o
o
27% of the Department of Justice Civil Litigation department is
devoted to defending residential school claims with few if any settlements
achieved and with an unduly restrictive mandate for negotiation of settlements;
and, o
o
The Government's ADR Model B process offers maximum compensation of
$3,500 with per hearing administrative costs averaging over $20,000. 2) 2) Resulting
Re-victimization: o
o
The ADR scheme prevents and restricts victims from talking about
the full nature of the abuses they suffered at residential school and limits
their evidence to proof of physical and sexual abuse. Without addressing their entire residential school experience
and the harmful effects on their lives, the program delivers none of the
promised healing for survivors; o
o
Despite spending over $20,000 on administrative costs to conduct an
ADR hearing for an elderly residential school survivor named Flora Merrick, the
Government sought an appeal of the mere $1,500 awarded to her though the
process; and, o
o
The Government continues to suggest that residential school victims
deserve compensation only for serious physical abuse and for sexual
abuse thereby suggesting that the other forms of abuse experienced by
residential school survivors were somehow appropriate. 3) 3) Government
Misconduct: o
o
When designing the ADR scheme, the Government refused to consult
residential school victims in Alberta because the victims wanted their legal
counsel to be present; o
o
The Government has prevented survivor organizations from supporting
the Baxter National Class Action; o
o
While the Government represents that their ADR process covers
instances of 'wrongful confinement' they have defined wrongful confinement so
narrowly that not one application to the ADR has even tried to meet the
criteria for wrongful confinement as they have defined it; o
o
The Government continues to boast about their "successful and
fair resolution options" while at the same time acknowledging publicly
that the system is gravely flawed; o
o
The Government is well aware that its "options" are too
slow for survivors. Recently they
sent a letter to survivor's counsel offering, in certain limited
circumstances, to pay claims even though the survivor has died. This shows in a chilling way, where the
government's priorities are. It
would rather see victims die than change its processes to ensure they are
compensated in their lifetime; o
o
The Government of Canada has persistently ignored the call of both
the Royal Commission on Aboriginal Peoples and the Law Commission of Upper
Canada for a Public Inquiry into the Residential School tragedy; and, o
o
The Government has refused to even participate in any discussions
with residential school lawyers relating to a comprehensive resolution of
residential school issues. No
responsible litigant let alone the Government of Canada should behave in such a
cavalier fashion. 4) 4) Survivor
Mistrust: o
o
In the same time it has taken the Government's ADR scheme to
resolve 50 cases, over 2,500 residential school survivors have died; o
o
The Department of Justice has appealed virtually every residential
school decision to date; o
o
Despite accepting applications to the ADR by survivors of the
Mission Baptist Residential Schools in the Yukon, the Government has now
delisted that school as one eligible for the Government's ADR; o
o
Our clients see the Government's ADR scheme as a unilaterally
imposed, bureaucratic answer from those that victimized them through the
residential school system. They do
not trust and will not participate in any system devised and implemented
unilaterally by Canada; o
o
Survivor mistrust is shared by the Courts. Recently the Ontario Court of Appeal
dismissed the ADR with the following words: "It is a system unilaterally
created by one of the respondents in the action and one that could be
unilaterally dismantled without the consent of the appellants."; and, o
o
Our clients are seeking a comprehensive resolution through an
independent decision maker whose impartiality they can trust.
It seems that there is no political will on the part of the
Government to try to make amends for the residential school tragedy. Instead, the Government of Canada
appears content to allow survivors to die uncompensated while they seem to
continue to offer the bare minimum necessary to attempt to delay and dissuade
the ongoing litigation. The Solution The National Consortium believes that the Government must
immediately negotiate a fair, efficient, comprehensive and binding resolution
to all residential school issues.
This could readily be accomplished under the auspices and supervision of
the Ontario Superior Court through the Baxter
National Class Action. The
National Consortium believes that resolution through the Baxter National Class Action would provide
a binding and impartial mechanism to ensure the fair implementation of any
resolution. If a resolution cannot be achieved through good faith negotiations,
any legal disagreements and the certification of the Baxter National Class Action should be fast-tracked for
consideration by the Supreme Court of Canada. Recommendations The
National Consortium requests that the House of Commons Standing Committee on
Aboriginal Affairs and Northern Development make the following recommendations:
1. That the
federal government immediately negotiate a fair, efficient, comprehensive and
binding resolution of all residential school claims under the auspices of the
Ontario Superior Court of Justice in the Baxter
National Class Action; 2. That any
comprehensive resolution be implemented under Court supervision and approval
throughout the process; and, 3. That the
Government's spending on residential school claims administration be subject to
an immediate audit by the Office of the Auditor General of Canada.
Ken Kuhl
Ken Kuhl
Grays, Essex, UK
------------------------
February 16, 2005
Anglican clergy to lose the right to a job for life
By Ruth Gledhill, Religion Correspondent
THE Church of England took the first steps yesterday to end 800 years of
tradition and scrap the “parson’s freehold”, or job for life, enjoyed by
thousands of clergy, within five years. The General Synod, meeting at Church
House, Westminster, voted for a new system of “common tenure” to replace the
freehold.
Clergy will also be subject, for the first time, to a new “capability
procedure”, allowing bishops to dismiss them if they are deemed to be lazy
or incompetent.
But clergy and laity resisted moves to transfer ownership of vicarages,
churches and churchyards to diocesan boards of finances. Instead they made
it clear that they wanted the property to remain in the control of the
parish. Parsonages and churches are currently vested in the clergy through
the freehold, although they benefit from none of the advantages of property
ownership, such as the surge in values, because they are not free to sell
them.
Of the church’s 9,000 stipendiary clergy, including deans and bishops, 4,900
enjoy the freehold. The remainder are in fixed-term posts, but the synod has
already agreed that non-freeholders should move to a system of common
tenure.
Common tenure will give open-ended employment with job security and, for the
first time, protection under employment law, allowing clergy to seek redress
from employment tribunals if unfairly dismissed.
Clergy made redundant will be entitled to severance pay of up to £36,000 for
the first time.
But freehold clergy will lose the protection that makes it almost impossible
for a bishop to dismiss them unless they commit a serious misdemeanour
leading to disciplinary proceedings, such as an adulterous affair with the
organist’s wife.
David McClean, architect of the proposals and a synod lay member,
acknowledged the fear that the end of the freehold will mean the end of the
eccentric and the loveable maverick. Professor McClean said: “Witch-hunts of
that sort, even if they won the support of the church panels, would never
survive the scrutiny of an employment tribunal. I would say to clergy, ‘You
can be as eccentric and difficult as you like, but if that drives colleagues
to nervous breakdowns, or if it prevents you dealing appropriately with the
penitent, the dying or the bereaved, a responsible church must intervene’.”
However, Canon Jim Wellington, of the Leicester Diocese, described the
proposals as a “revolutionary upheaval”. He said: “It will shift the balance
of the ecclesiastical ecosystem in the direction of the diocesan
administration. It will cost the Church about £1.5 million, the equivalent
of about 40 parochial posts.”
The Church of England will also have to pay pensions to the partners of gay
clergy, the General Synod was told.
The new Civil Partnerships Act, which comes into force this year, obliges
all pension schemes to provide benefits to the registered partners of scheme
members.
A group of bishops is examining the implications of the new legislation for
the Church, which still does not ordain gay clergy who admit to being in an
active relationship.
CHURCH AND ESTATE
The freehold dates from early Christian England, when landowners appointed
priests and set aside “glebe” or land to maintain them
In 1215 the Lateran Council directed that rectors should live in their
parishes or appoint a vicar with a stipend and freehold
Nearly 5,000 clergy enjoy the protection of the freehold, but more than
3,500 work on leaseholds
The freehold is a guarantee of job security but all clergy must retire at 70
Freehold gives clergy “ownership” of their vicarages and churches but they
cannot profit from them. It is almost impossible to evict clergy from their
houses, once installed