Update on class action lawsuits concerning Indian day schools and day students at residential schools

Regional Chief Norman Yakeleya
July 25, 2019

Class Actions

• There are two distinct class actions:
  • The McLean Class Action:
    • This class action includes students who attended Indian Day Schools established, funded, managed, and controlled by Canada located on reserves.
  • Gottfriedson Class Action:
    • This class action includes students who attended an accredited residential school, but only during the day.

McLean Class Action (Indian Day Schools)

• The McLean class action (McLean v. Canada), or the “Indian Day Schools” class action, was filed by the Joan Jack law firm on July 31, 2009.
• The plaintiff claims that Canada breached its duty of care, fiduciary obligations, and statutory obligations, as well as the aboriginal rights of survivors and their families.
• The class action is filed on behalf of two groups of claimants: the Survivor Class, which includes all Indigenous persons who attended a Day School starting from 1920; and the Family Class, which includes spouses, former spouses, children, grandchildren, and siblings of a member of the Survivor Class.

• On March 12, 2019, a proposed settlement between Canada and the law firm was signed for the benefit of both groups of claimants. This settlement is still pending approval and authorization by the Federal Court.
• A Federal Court hearing was held in Winnipeg, Manitoba, from May 13 to 15, 2019. However, no decision has been rendered yet.
• Compensation under the proposed settlement ranges from $10,000 for damages related to attending a federal Indian Day School to a maximum of $200,000 for cases of repeated sexual and/or physical abuse resulting in long-term injury, regardless of the number of day schools attended.
• A special fund of $200 million to support commemoration projects, health and wellness programs, as well as language and cultural initiatives for communities.
• Canada will pay up to $1.4 billion for Level 1 compensation, and there is no limit set for compensation for victims of Level 2 to 5 abuse.

Gottfriedson Class Action (Day Scholars)

• The Chiefs of the Tk’emlúps te Secwépemc and Shishalh Indian Bands began discussions in December 2010 to obtain compensation for their day scholars.
• On August 15, 2012, the Tk’emlups and Sechelt bands of British Columbia, later joined by the Grand Council of the Crees of Northern Quebec, filed a class action lawsuit on behalf of Indigenous children who attended Indian residential schools as day scholars.
• On June 3, 2015, the Federal Court certified the class action.
• This class action seeks compensation for day scholars on the grounds that they suffered the same loss of language and contact with culture as those who were residents at the same schools.
• The lawsuit involves three groups of claimants:
  • The first is the “Survivors,” who are all Indigenous persons who attended residential schools as day scholars between 1920 and 1997.
  • The second is the “Descendants,” i.e., all first-generation descendants of the survivors.
  • The third is the “Bands” group, i.e., those that had members in the survivor group, or in whose community an Indian residential school was located, and who joined the lawsuit.
• This group includes 105 bands:
  • On May 24, 2016, the Tk’emlúps te Secwepemc, Sechelt, and James Bay Crees decided to take part in negotiations with the Government of Canada.
  • On October 24, 2016, the Department of Indian and Northern Affairs appointed a special ministerial representative in charge of negotiating a settlement.
  • On October 10, 2017, the Government of Canada and the First Nations plaintiffs signed a memorandum of understanding (MOU).

Current Status of Class Action Negotiations

• Negotiations between the plaintiffs and Canada broke down earlier this year.
• In April, litigation for the day scholars class action resumed in Federal Court.
• On April 10, 2019, in Federal Court in Ottawa, the plaintiffs presented a motion for an advanced or interim costs order. However, this motion by the day scholars class action plaintiffs was unsuccessful.

AFN Mandate and Next Steps

• The AFN will provide political support to former students who were victims of abuse while attending Indian Day Schools.
• This decision is based on a number of previous resolutions:
  • Resolution no. 18/2008 Indian Residential School Day Scholars, adopted July 17 in Quebec City, Quebec;
  • Resolution no. 22/2010 Day Scholars Class Action, adopted July 22, 2010, in Winnipeg, Manitoba;
  • Resolution no. 21/2011 Support for Indian Residential School Day Scholars, adopted July 13, 2011, in Moncton, New Brunswick;
  • Resolution no. 05/2015 – Support for Gottfriedson et al v. Her Majesty the Queen (Day Scholars Class Action), adopted July 9, 2015, in Montreal, Quebec.