Residential school cases take historic step



    TORONTO, March 9 /CNW/ - A historic moment was reached yesterday when
provincial and territorial judges involved in the settlement for residential
school survivors approved court orders which will move the case forward.
    Nine judges from across the country held a joint hearing in Calgary
yesterday to hear submissions about the settlement. Eight of the judges
approved the orders yesterday and the ninth approval is expected very shortly.
    A class action brought by the former students of the Mohawk Institute
Residential School (the "School"), a native residential school in Brantford,
Ontario, and their families, was settled in November 2005 by way of a national
Agreement in Principle between the Government of Canada, the Assembly of First
Nations (the "AFN"), legal counsel for Indian Residential School survivors and
various religious entities (the "Agreement").
    Amongst other things, the Agreement provides for a compensatory Common
Experience Payment, for loss of language and culture, to every former Mohawk
student who attended a residential school in Canada alive as of October 5,
1996 (the "Payment"), consisting of a $10,000.00 lump sum and $3,000.00 extra
for each school year or part thereof after their first year of attendance. At
least $1.9 billion will be paid out under this part of the settlement.
    Russell Raikes, the lawyer who commenced the class action on behalf of
former Mohawk students, said, "This marks the end of an almost decade long
battle to secure justice for survivors and their families."
    As stated by Kirk Baert, co-counsel with Mr. Raikes, "This settlement
means that survivors and their families will no longer have to struggle
through complicated, lengthy and expensive court proceedings in order to
obtain redress of this historical wrong."
    Former Mohawk students commenced a claim in October 1998 against the
Government of Canada, the Diocese of Huron and the New England Company. The
students sought to recover damages for the harm inflicted on them as a result
of them attending the School.
    The School was located in Brantford, Ontario, near the Six Nations
Reserve. The School was opened in 1828 as a residential school for First
Nations' children. It was founded by the New England Company, a charitable
organization, with the mission of teaching the Christian religion and the
English language to the native peoples of North America.
    The New England Company ran the School until 1922, when it leased the
School to the Federal Government. Under the lease, Canada agreed to continue
the School as an educational institution for native children and agreed to
continue to train them in the teachings and doctrines of the Church of
England. The School closed in 1969.
    The Mohawk class action covers the years of 1922 to 1969. During that
time, there were 150 to 180 students at the School each year, ranging in age
from 4 to 18 and split roughly equally between boys and girls. All were native
children, that is, Indians within the meaning of the Indian Act. In all,
approximately 1,500 native children attended the Mohawk School during those
years.
    The plaintiffs claimed that the Mohawk School was run in a way that was
designed to create an atmosphere of fear, intimidation and brutality. Physical
discipline was frequent and excessive. Food, housing and clothing were
inadequate. Staff members were unskilled and improperly supervised. Students
were cut off from their families. They were forbidden to speak their native
languages or to practice their native cultures.
    The Ontario Superior Court of Justice and Divisional Court of Ontario
both refused to allow the case to proceed as a class action. In December 2004,
the Ontario Court of Appeal, Ontario's highest court, decided that the courts
below erred in refusing to allow the case to proceed, and ordered that it
should be certified as a class action and permitted to proceed to trial. The
court certified claims for breach of fiduciary duty, negligence and breach of
aboriginal rights. The court found that dealing with all of the facts and
issues raised in the case should be dealt with in one trial because it would
result in a substantial saving of time and expense. The court also found that
access to justice would be greatly enhanced by a class action. The evidence
before the court was that many of the former students are aging, very poor,
and in some cases, still extremely emotionally troubled by their experiences
at the Mohawk School.
    The Supreme Court of Canada denied the defendants' request for leave to
appeal to the nation's highest court in May 2005. On May 30, 2005, the
Honourable Frank Iacobucci, former justice of the Supreme Court of Canada, was
appointed lead negotiator on behalf of the Government of Canada.
    As a result of negotiations between the Government of Canada, the AFN,
legal counsel for the survivors and various religious entities, the Agreement
was reached on November 20, 2005. In addition to providing for the lump sum
Payment, the Agreement also establishes an Individual Assessment Process
("IAP") whereby survivors of residential schools may apply for additional
compensation, over and above the lump sum Payment to compensate individuals
for sexual and physical assaults perpetrated upon them during their time at a
residential school. The IAP will improve the current Dispute Resolution System
instituted by the Government of Canada in 2004 which has been the subject of
much criticism. It is estimated that another $1 billion will be paid out under
this part of the settlement.
    A final settlement agreement was reached on May 8, 2006. The federal
cabinet approved the deal on May 10, 2006. Nine courts heard motions in the
fall of 2006 regarding approval of the settlement. All nine courts approved
the settlement and released in December 2006 and January 2007.
    The Agreement also dedicates $60 million to a Truth and Reconciliation
Commission designed to complete a historical record of the Indian residential
school legacy and promote awareness and public education of Canadians
concerning the residential schools system and its lasting impact on survivors
and their families. The parties sought approval of the Agreement from the
provincial Superior Courts across Canada in the fall of 2006.
    The plaintiffs are represented by the law firms of Cohen Highley LLP and
Koskie Minsky LLP. Both firms are widely acknowledged as leading Canadian
class action law firms.




For further information:

For further information: Russell M. Raikes, Cohen Highley LLP, (519)
672-9330, email: rraikes@cohenhighley.com; or Kirk M. Baert, Koskie Minsky
LLP, (416) 595-2117, email: kbaert@kmlaw.ca


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