Compensation for Indian Day School survivors could be delivered by late fall

After 10 years of struggle, Indian Day School survivor Garry McLean missed seeing justice done by three weeks.

McLean, the representative plaintiff in a class-action lawsuit representing students at the schools, died February 19 – just before he could attend the signing of an agreement with the federal government to settle the lawsuit.

Three years after the second filing, Indian Day School survivors may begin seeing compensation payouts as early as the fall of 2019.

The federal government announced March 12 that an agreement had been reached, with individual compensation ranging between $10,000 and $200,000.

According to Robert Winogron, a partner at the Gowling WLG law firm that represented McLean and others in the lawsuit, the case wasn’t just about getting compensation but to apply the lessons learned in the Indian Residential Schools (IRS) payout process.

While the IRS settlement agreement was reached back in 2006, there are still ongoing lawsuits because of its process, with the burden of proof being on victims.

“We have designed the process to be very user friendly, entirely paper-based and without cross-examination,” Winogron told the Nation. “There will be a presumption of honesty with claimants and so when you put down your information on a form, it will be presumed to be honest and accurate.”

The written approach is meant to avoid the “re-traumatization” that many IRS claimants say they experienced.

McLean initially filed the class action in 2009 for attendees of Indian Day Schools who were excluded from the Residential Schools Settlement Agreement. As he and other claimants felt they had experienced the same abuses, they felt it was a miscarriage of justice to be excluded. The action, however, did not move forward until McLean approached Winogron in 2016.

Winogron explained that when he looked at McLean’s suit in 2016, he knew it was something important. He and his colleagues reframed the claim and then filed it in a different court. Negotiations for the agreement were conducted with the Justice Ministry. In order for very elderly survivors to see a resolution, timeliness was of the essence, said Winogron.

The schools, which were legislated into existence in 1920 as part of the Indian Act, were usually one- or two-room schoolhouses typically on reserve or a short distance away. They existed, in some cases, until the 1990s.

While a settlement was announced last December 6, a final agreement in principle was signed March 12. With an eye on the looming federal election in October, the federal government used the signing ceremony to also announce a $200 million Legacy Fund to support commemoration projects, health and wellness programs, as well as language and culture initiatives for communities.

MacLean lived through severe abuse at the Dog Creek Day School at Lake Manitoba First Nation from 1957 to 1965. His death in February was a blow to Winogron.

“We were that close and he did not live to see the day when the settlement agreement was signed. It really is tragic,” said Winogron.

While day school students could go home at night, unlike those taken away to residential schools, Winogron said that in many cases this was no relief. “In some cases it made things worse,” he said.

In order to be able to make a claim, an individual needs to have attended one of the schools on the list at http://indiandayschools.com. After the agreement is approved in Federal Court, the information required to file a claim will be listed at the same website in multiple languages, including English, French, Cree, Ojibwe, Dene, Inuktitut and Mi’kmaq.

Among the downloadable information packages is a grid that explains how the compensation works. There is an initial $10,000 available per student and then greater compensation reflecting particular harms an individual suffered. There is also a guide to describe these harms in the claim.

“The lowest level is for children who went to these schools and they were either beaten with a ruler, insulted based on being Indigenous, harassed, made to do degrading things like soil themselves and there are other things we have heard,” said Winogron. “Then it goes up to the most severe and that is physical harm that has left them permanently disabled, death and repeated and persistent sexual assaults.”

Families of survivors who died after July 31, 2007 – when the original Class Action suit was filed – can also file on behalf of their loved one’s estate.

Crown-Indigenous Relations Minister Carolyn Bennett said the new streamlined system for survivors is an improvement.

“The mistreatment of Indigenous children through the federal day school system is a tragic and shameful part of Canada’s history,” Bennett said in a statement. “Students were robbed of their cultural identity and dignity, and many were abused physically and sexually. No compensation will undo the harms of the past, but this agreement brings us one step closer to a lasting and meaningful resolution for the survivors and their families.”

Winogron said that pending any appeals, he will appear before Federal Court May 13-15, and if all goes well, payments could roll out as early as late fall or early winter.