Indian Residential Schools Settlement Agreement (IRSSA)

IRSSA – Background

 
• The implementation of the Indian Residential Schools Settlement Agreement (IRSSA) began on September 19, 2007.

 

• The main components of the IRSSA are:
   
  1. a Common Experience Payment for all eligible former students of Indian Residential Schools;

   

  2. an Independent Assessment Process (IAP) for the resolution of claims of serious physical abuse or sexual abuse;

   

  3. healing support measures such as the Indian Residential Schools Resolution Health Support Program and a donation to the Aboriginal Healing Foundation;

   

  4. commemorative activities;

   

  5. the creation of a Truth and Reconciliation Commission (TRC).

Independent Assessment Process (IAP)

 
• The Common Experience Payment and the Independent Assessment Process were the two components of the IRSSA that provided financial compensation to survivors.

 

• The Independent Assessment Process was intended to be an out-of-court, non-adversarial, and claimant-centered process for the resolution of claims for serious physical abuse, sexual abuse, or other abuses endured by residential school survivors.

 

• The Independent Assessment Process is not a perfect process and experienced many failures, including predatory behavior by certain lawyers and form-fillers, unreasonable fees, and Canada’s non-disclosure of important documents to claimants.

 

• The deadline for submitting an Independent Assessment Process application was September 19, 2012. However, Kivalliq Hall in Rankin Inlet was recently added to the list of eligible schools with a deadline of January 25, 2020, for Common Experience Payment applications and claims.

Status – Independent Assessment Process

 
• As of May 31, 2019, 99% of Independent Assessment Process applications had been resolved, and only 55 claims were outstanding.

 

• Nearly 89% of claimants within the Independent Assessment Process framework received compensation.

 

• The average payment under the Independent Assessment Process, including legal fees, is $111,265.

 

• Adjudicators awarded $2.138 billion. Total payments under the Independent Assessment Process amount to $3.182 billion.

AFN Participation

The AFN participated in numerous requests for court directions on several issues raised during the implementation of the IRSSA, including:

 
1. Misapplication of the IRSSA by Independent Assessment Process adjudicators – J.W.C. Canada

 

2. Form-fillers

 

3. Lawyer conduct and excessive fees

 

4. Canada’s non-disclosure of important documents to claimants within the Independent Assessment Process

 

5. Judicial reviews of Independent Assessment Process decisions

J.W.C. v. Canada (Attorney General)

 
• J.W.C., a claimant in the Independent Assessment Process, was denied compensation following (according to the AFN) the adjudicators’ failure to apply the provisions of the process.

 

• The initial adjudicator had stated that claimants had to demonstrate the sexual intent of the perpetrator when inappropriate touching was alleged.

 

• The Manitoba Court of Queen’s Bench ruled in favor of the claimant, but the Manitoba Court of Appeal overturned this decision, ruling that the adjudicators’ decision was not a failure to execute the IRSSA.

 

• The AFN participated in the appeal of this decision to the Supreme Court of Canada to obtain clarification regarding the adjudicator’s application of the IRSSA.

 

• Ruling: The initial adjudicator’s decision was considered an unauthorized modification of the Independent Assessment Process.

 

• The judges determined that it was inappropriate to require claimants to demonstrate the sexual intent of the perpetrator.

 

• The AFN continues to seek compensation for individuals whose claims were rejected in the Independent Assessment Process due to such legal errors.

IAP Notice Plan

 
• The Supreme Court of Canada decided that all documents relating to the Independent Assessment Process, including applications, transcripts, and decisions, will be destroyed in September 2027 since the Court is of the opinion that these documents belong to the claimants to whom confidentiality was promised.

 

• The Supreme Court tasked the AFN, through the Notice Plan, to provide culturally appropriate support to First Nations peoples across Canada who participated in the Independent Assessment Process or the Alternative Dispute Resolution process.

 

• A help desk was established to provide information and assistance to claimants. Claimants can reach this help desk by phone at 1-833-212-2688 or by email at iapdesk@afn.ca.

One of the help desk’s tasks is to inform Independent Assessment Process claimants about their rights concerning their files, specifically:

 
1. confidentiality of their files;

 

2. information service on the IRSSA and the responsibilities of the National Centre for Truth and Reconciliation;

 

3. options for preserving Independent Assessment Process or Alternative Dispute Resolution files at the National Centre for Truth and Reconciliation;

 

4. withdrawal of consent and removal of files from the National Centre for Truth and Reconciliation;

 

5. the right of the IAP claimant to obtain a copy of their file for personal purposes.

All-Parties Meetings and TRC Calls to Action

 
• The AFN continues to participate in the IRSSA All-Parties Working Group. These meetings allow all parties to the IRSSA to jointly review the status of the IRSSA implementation and monitor the progress and effects of the TRC Calls to Action. Here is a partial list of Calls to Action that are still pending:
   
  • Call 58 – Pope’s apology for the role played by the Catholic Church in Indian Residential Schools – timeline unknown. Currently, Catholic Church representatives are waiting for a report from the Canadian bishops, which is expected to be presented in the fall of 2019.

   

  • Call 46 – The parties must develop and sign a Covenant of Reconciliation. The development of this document is still ongoing.

   

  • Call 73 – Canada and the Church will establish and maintain an online registry of residential school cemeteries. The National Centre for Truth and Reconciliation is currently compiling the register of student deaths in Indian Residential Schools. Parks Canada is collaborating with the Centre on this initiative. Churches are currently attempting to provide information on burial sites.

   

  • Calls 81 and 82 – Monuments will be erected in Ottawa and other capital cities.

   

  • Various Calls to Action asking the Church to develop educational strategies and respect the United Nations Declaration on the Rights of Indigenous Peoples. Faith-based organizations continue to provide feedback on the implementation of these commitments.