Appeals Court says class-actions can proceed

Newfoundland and Labrador residential school survivors who were excluded from the initial Indian Residential School Settlement Agreement (IRSSA) have been given the go-ahead by that province’s Court of Appeal to launch a lawsuit against the federal government.
The ruling was delivered Dec. 21, 2011.

“It’s good news for people who have been waiting for such a long time for a response from the court on this issue,” said Dan Pottle, minister of finance with the Nunatsiavut government, which was established in 2005 as a regional Inuit government within the province of Newfoundland and Labrador.

Pottle explained that when the IRSSA was signed in 2007, the Nunatsiavut government approached the federal government twice to lobby for the inclusion of the five residential schools that operated in the province.
“They would not go down that road,” said Pottle. The Nunatsiavut government engaged a law firm to do further work on the subject. That information was turned over to Ahlstrom Wright Oliver and Cooper, a law firm in Sherwood Park, Alta. which was successful in taking the matter to the next level.

“We were certified, which means we can proceed as a class action. It’s pretty critical,” said Ches Crosbie, a lawyer representing the Innu, Inuit and Métis claimants. Crosbie’s firm is co-legal counsel with the Sherwood Park law firm.

Crosbie said there are five class action law suits that will go ahead, each representing schools located in Cartwright, Northwest River, St. Anthony, Nain and Makkovik. In total, there are 5,000 students and their relatives involved.

That the Newfoundland and Labrador Court of Appeal upheld the 2010 decision by the Newfoundland and Labrador Supreme Court is significant and could have an impact in other provinces.

“What we pleaded was negligence on the part of the government and also breach of fiduciary duty. They had a presence on committees of oversight that oversaw the delivery of funds,” said Crosbie. “The federal government resisted the case on the basis that it had a different involvement with schools in Newfoundland than it did elsewhere.”

To date, the IRSSA only includes schools in which Canada “was jointly or solely responsible for the operation of the residence and care of children,” as stipulated in the IRSSA.

The federal government now must decide how to proceed.

“The department (of Aboriginal Affairs and Northern Development Canada) is reviewing the decision in consultation with the Department of Justice, and considering available options before determining the most appropriate next steps,” wrote AANAC spokesperson Michelle Perron in an email to Windspeaker. “As this case is before the courts, it would be inappropriate to comment further.”

Crosbie said the federal government could seek Leave to Appeal the decision to the Supreme Court of Canada or could begin discussions regarding a compensation package. Crosbie said at this point his clients are not convinced that accepting the Common Experience Payment (CEP) or the Independent Assessment Process that were negotiated as part of the IRSSA would be advantageous.

“Exactly what we would be looking for in way of a settlement is something we have to resolve amongst ourselves right now. There are some dissatisfactions with the way the global settlement process has worked out,” said Crosbie.

Through the CEP, eligible survivors received $10,000 for the first school year (or partial school year) of residence at one or more IRSSA-recognized residential schools and an additional $3,000 for each subsequent school year. CEP applications are now closed except for those in extenuating circumstances. Applications are still being accepted for IAP (Independent Assessment Process), which recognizes residential school survivors for serious physical and sexual abuse. Application deadline is Sept. 19, 2012.