PREPARED WITHOUT PREJUDICE BY MAKIVIK LEGAL (JUNE 2019)
WHAT IS THE DIFFERENCE BETWEEN THIS INDIAN DAY SCHOOLS CLASS ACTION AND THE 2007 RESIDENTIAL SCHOOLS CLASS ACTION?
The Day Schools Class Action is called the McLean Class Action. Mr. Garry McLean is the Indian Day School advocate from Manitoba Ojibway First Nation. He passed away February 2019 before seeing all outcomes of his 2009 initiated lawsuit. It was brought forward for the people who attended Indian Day Schools, or Federal Day Schools, funded, controlled and managed by the Government of Canada and which were located throughout Indigenous communities in Canada. They differ from the residential schools, which were accommodating the students after school hours in residences or hostels. Day Schools were attended during the day only by the students. In Nunavik, schools operated first as Day Schools, then for few years in 4 communities (Kuujjuaraapik, Inukjuak, Kangirsuk, Kangiqsualujjuaq) operated as residential schools and then reverted to Day Schools only. Schools funded, operated or managed by the Province, or by private organizations are not covered by this Day Schools Class Action. Students who went to Ottawa to further their education are also not eligible under this Day Schools Class Action. The Residential Schools Class Action was settled in 2007 by the Indian Residential Schools Settlement Agreement. The Day Schools Class Action may soon be settled by a Proposed Settlement Agreement.
WHAT IS THIS DAY SCHOOLS CLASS ACTION PURPOSE?
This Day Schools Class Action intends to compensate all Inuit, First Nations and Metis students who attended the various Federal and Indian Day Schools for the harm they have suffered while at school.
WHAT IS THE FEDERAL DAY SCHOOLS SETTLEMENT AGREEMENT?
A proposed Settlement Agreement has been negotiated between the parties and was submitted for approval to the Winnipeg Federal Court May 13-15. The decision of the Federal Court, whether it is approving the agreement, or rejecting it, or modifies it, is expected before the end of the month of June 2019.
IS THE SETTLEMENT AGREEMENT IN FORCE?
No, the Agreement is not yet in force. Several steps must be achieved before it be implemented. It is expected that this may occur closer to October 2019. Once the Court will approve the proposed Agreement, former students will have 90 days to decide if they want to be part of the Agreement (opt-out). With more than 10,000 former students deciding to opt-out from the Agreement, Canada will have to assess its possible cancellation, or its renegotiation, or its continuation.
WHO WILL QUALIFY FOR COMPENSATION?
Any former student who suffered harm at a Federal Day School may qualify for compensation. The amount of compensation will depend on the kind of harm experienced. It will not be attached to the number of years of attendance at Federal Day School(s). Former students will get the same amount of compensation if they suffered the same kind of harm, notwithstanding their number of years in schools. Compensation will range from Level 1 to Level 5. Level 1 compensation should be awarded if you suffered abuse like mocking or humiliation because of your culture, language or identity, threats of violence, sexual comments or some kind of physical abuse. Level 5 compensation will be awarded for the most serious physical or sexual harm suffered while attending Federal Day School(s).
All former students who attended a Federal Day School experienced harm emotionally, physically, or both. It is foreseen that all eligible former students should be eligible for at least the base level of compensation set at $10,000.
HOW WILL I QUALIFY FOR COMPENSATION?
To obtain compensation you will have to fill out and submit an application form within the prescribed 2 years and 6 months deadline. This deadline will only start from the entering into force of the Agreement. The application forms should be then made available, or more or less in the Fall of 2019. If a former student dies on or after July 31, 2007, the estate will be entitled to present an application. If a former student submits an application before his or her death, the application will be considered valid.
If the claim is not submitted before the 2 years and 6 months deadline, you will not be able to present an application afterwards and will lose all your rights to sue Canada for anything that happened to you at the recognized Federal Day Schools.
Unlike the Residential School process, no one will have to appear before assessors to share their story of harm. Applications are to rely solely on written format, where a narrative of the events should be inscribed. These, unless contrary evidence is produced, are to be believed and trusted at their face value.
WHAT ARE THE ELIGIBLE FEDERAL DAY SCHOOLS FROM A NUNAVIK STANDPOINT?
The proposed Settlement Agreement recognizes 11 Federal Day Schools in Nunavik. They are as of May 9 listed at the Schedule K to the proposed Agreement (https:/indiandayschools.com/en/wp-content/uploads/mclean-updated-schedule-k-may-9-2019-english.pdf). Through requests for correction/modification/addition, we intend to have the 1978 date of the transfer to the-then Kativik School Board recognized wherever applicable, and have added the Killiniq Day School to the final listing.
HOW MUCH MONEY IS INVOLVED?
If the proposed Settlement is approved, a total amount of 1.4 billion will be made available by Canada for Level 1 compensation ($10,000 per person). This is based on the estimate of the numbers of former students in Canada which is between 120,000 and 140,000.
An unlimited amount of money will be made available by Canada for the other levels of compensation.
An amount of $200 million for legacy projects will be set aside, to be administrated by a not-for-profit corporation. Projects of healing, wellness, culture, language, identity, commemoration, etc., would be proposed for funding to the corporation. As a “first come, first served approach” could be expected, it is recommended that communities get themselves prepared in advance to take advantage of this funding so they could respond to their clientele’s unique needs.
Once approved, the Class Council Toronto Law Firm Gowling (www.indiandayschools.com ; 1-844-539-3815) will receive from Canada $55M as the exclusive body mandated towards the administration and implementation of the Agreement, plus a $7M retainer to accompany the claimants throughout the process. Yet no former student is going to have to pay for such services, the fees being assumed by Canada outside of the compensation envelopes.
IS THIS AGREEMENT OR THE GOVERNMENT OF CANADA BE PROVIDING EMOTIONAL HEALTH SUPPORT TO ASSIST ME IN THIS PROCESS?
No, neither the Settlement Agreement nor the Government of Canada are providing specific emotional health support at the present time, from the onset to the coming into force or implementation of the Agreement. This important matter was raised by the three Inuit Nunangat Land Claims Organizations (Makivik, IRC and NTI). You should at any time reach the general assistance lines if needed, such as:
WHERE AND HOW CAN I GET MORE INFORMATION?
You can receive more information on the McLean Federal (Indian) Day Schools Class Action by contacting the Class Council Law Firm Gowlings:
WHAT IS MAKIVIK ROLE IN THIS PROCESS?
Unlike the Residential School process, Makivik and other Land Claims Organizations were not awarded any role in the process. Makivik along with NTI and IRC have and are still advocating the specific needs of the Inuit Nunangat former students. It went from requesting an extension of the originally intended 1-year deadline for application, to requesting emotional health support, to assessing the accuracy of the eligible Inuit Federal Day Schools listing, and more. We notably contracted the National Library and Archives Canada to collect relevant information on the various Inuit Day Schools, so to assisting former students with their applications. We are currently developing a written declaration form for a fellow student to evidence another’s application. We answer questions on a regular basis from individuals, community meetings and groups, and liaise information regarding the process. As one caller pointed out to us: “we do not know that council firm, but we know Makivik and we trust it will help us”. Makivik intends to continue to efficiently support its members throughout the process. You can contact Mylène Larivière from the Makivik Legal Department: