2 former AFN chiefs call on Ottawa to settle residential schools day scholars class action

Two former Assembly of First Nations national chiefs are calling on Ottawa to settle a class action lawsuit filed on behalf of residential school survivors known as day scholars — one of the last groups from the era that has yet to receive compensation. 

Days scholars are students who attended residential school in the day but returned home in the evening. They were excluded from the 2006 Indian Residential Schools Settlement Agreement and thus not eligible for the settlement's common experience payments — $10,000 for the first year of living at a residential school and $3,000 for every year after.

However, day scholars could file claims for compensation for abuse under the Independent Assessment Process  created by the settlement agreement.

Day scholars are seeking the same common experience payment provided to other residential school survivors.

Former Assembly of First Nations (AFN) national chiefs Matthew Coon Come and Phil Fontaine say it's time for Ottawa to drop the unfolding court battle and get back to the table to negotiate a settlement in the class action lawsuit that was certified in 2015. 

Coon Come, who is involved in the class action case, said recent signals by federal ministers for a desire to negotiate have not filtered through to federal officials and lawyers.  

"The lawyers of the Department of Justice are behaving as if we are going to go all out in the court," said Coon Come, who is also the former Grand Chief of the Grand Council of the Crees.

"Let's agree to something... Let's not wait until the survivors of Indian day scholars have died."

Former AFN national chief Phil Fontaine, who was involved in leading Indian Residential Schools Settlement Agreement negotiations, said Ottawa needs to come to the table and settle the class action. 

"If you choose the courts and go and challenge this particular claimant group, that is so far away from this notion of reconciliation," said Fontaine. 

"I find that troubling, personally, given our own experience with the residential schools settlement agreement."

Fontaine said federal ministers need to get directly involved in the case and see it to resolution.

"Clearly such matters shouldn't be left to government officials, meaning bureaucrats. It clearly needs ongoing and direct involvement by the minister," said Fontaine.

Crown-Indigenous Relations Minister Carolyn Bennett's office had not responded to a request for comment by time of publishing.

The class action was filed on behalf of day scholars and their descendants, and 105 First Nations (known as the band class) that are seeking compensation for the impact residential schools had on language, culture, heritage and wellness in their communities. 

There are between 15,000 to 25,000 day scholars still alive today. 

In a 2018 ruling related to the day scholars case, Federal Court Justice Sean Harrington urged Canada to "not simply continue to talk the talk" but also "walk the walk" on reconciliation.

Harrington also noted that Ottawa's legal filings still denied "there was a uniform residential school policy" and argued the federal government was only liable for what it couldn't pin on the various religious orders that ran the schools.

Talks broke down

Coon Come said the parties thought they were approaching a negotiated settlement after Crown-Indigenous Relations Minister Carolyn Bennett appointed a special representative to deal with them at the table. 

The process unfolded for about two years and led to what Coon Come said they believed to be a possible agreement in principle on settling the case, but talks then broke down in early 2018. 

"It was our understanding that this would be considered by Minister Bennett, that she would submit it to the cabinet for a decision," said Coon Come. 

"To our surprise they sent Department of Justice lawyers who hijacked the process asking all kinds of irrelevant questions." 

Coon Come said one of the sticking points has been the insistence of federal government lawyers to have a cap on the settlement. 

Coon Come said two expert actuaries submitted a joint report to the court concluding there should be no cap on the settlement because the number of day scholars was uncertain. Even with this uncertainty, it was estimated the settlement would cost about $228 million, he said. 

Coon Come said they are willing to split off the band class from the case and focus just on the day scholars.