Independent Assessment Process FINAL REPORT Independent Assessment Process Oversight Committee 2021 IF YOU ARE FEELING PAIN OR DISTRESS BECAUSE OF YOUR RESIDENTIAL SCHOOL EXPERIENCES YOU CAN CONTACT A 24-HOUR CRISIS LINE AT 1-866-925-4419 TABLE OF CONTENTS Chapter 1: Introduction 6 Chapter 2: The Legacy of Residential Schools in Canada 9 History of Residential Schools in Canada 9 The Residential School Experience 10 Chapter 3: The Indian Residential Schools Settlement Agreement 13 The Quest for Redress and Healing 13 Litigation 13 Dispute Resolution and The Alternative Dispute Resolution Program 16 Healing and Reconciliation 20 The Indian Residential School Settlement Agreement 20 Chapter 4: The Independent Assessment Process 23 Objectives of the IAP 23 Resolving Litigation 23 Reconciliation 23 Healing – A Claimant-Centred Process 24 Operational and Administrative 25 Summary 26 The Independent Assessment Process 26 The IAP Claim and Pre-Hearing Processes 28 Applications and Admission of the Claim 28 Document Collection 29 Pre-Hearing Teleconferences 29 Negotiated Settlement Process 29 The IAP Hearing 29 Post-hearing Processes 32 Short Form Decisions 32 Expert Assessments 32 Final Submissions 32 Alleged Perpetrator Hearings 33 Decisions and Compensation 33 The Decision 33 Reviews 34 Compensation Payment 34 Legal Fees and Fee Reviews 34 The IAP Administrative and Governance Framework 34 The Courts 35 Court Monitor 35 National Administration Committee 35 Oversight Committee 36 Chief Adjudicator 36 Indian Residential Schools Adjudication Secretariat 37 Government of Canada 37 Chapter 5: Implementing the IAP – Challenges, Responses, and Improvements 38 The Context: A Claimant-Centred Approach 38 Providing Information about the IAP 40 Volume and Capacity 41 Resolving Claims 43 Document Collection 43 Inactive Claims 44 Incomplete Files 44 Lost Claimants 44 Claims with Student on Student Allegations 45 Hearings 46 Infirm and/or Elderly Claimants 46 Hearing Postponements, Cancellations, and Substitutions 48 Adjudication and Claim Resolution 49 Time Required to Issue Decisions 49 Negotiated Settlements 49 Ensuring Consistency in Decisions 50 Administrative and Process Management 51 Sharing Documents 51 File Management 51 Providing Information on IAP Processes to Claimants’ Legal Counsel 51 Misconduct of Some Claimants’ Legal Counsel 52 Disposition of IAP Records and Documents 54 Claim Records 54 Non-claim Records 56 Chapter 6: The Independent Assessment Process – Statistical Data 57 I: Applications Received and Resolved by Calendar Year 57 II: Applications Received by Region 58 III: Applications Processed per Calendar Year 58 IV: Claim Resolutions by Calendar Year 59 V: Negotiated Settlements by Calendar Year 59 VI: Independent Assessment Process Costs 60 Chapter 7: The IAP Experience: Perspectives of Claimants, Stakeholders, and Participants 61 Obtaining Information about the IAP 62 Applying for the IAP 63 The IAP Hearing 63 Hearing Location 63 The Adjudicator 63 Cultural Traditions 64 Support Services 64 Elders and Personal Supporters 64 Health Support Workers 65 Interpreters 66 The Inquisitorial Process 66 Costs, Compensation, and Awards 66 Healing and Reconciliation 69 Chapter 8: Lessons Learned 71 Offering a Claimant-Centred Process 71 Support for Claimants 71 Raising Awareness and Providing Information About the IAP 72 Support for Self-Represented Claimants 72 Selection of Hearing Location and Gender of the Adjudicator 73 Claimant-Centred Case Management 73 Claimant Feedback Throughout the Process 73 Information About Compensation Awards 73 Incorporating Traditional Elements and Cultural Practices 74 Providing an Alternative Approach to Adjudicating Compensation Claims 74 Inquisitorial Approach 74 Validating Claims 74 Document Collection/Mandatory Documents 74 Medical and Psychological Assessments 75 Hearing Location and Setting 75 The IAP Model 75 Addressing Challenges Raised by Certain Types of Claims 76 Claims Alleging Abuse by Other Students 76 Estate Claims 76 Efficiency and Effectiveness: Ensuring Fair and Timely Progress of Claims to Hearing and Resolution 76 Case Management 77 Expedited & Accelerated Hearings 77 “Lost” Claimants 77 Short Form Decisions 77 Negotiated Settlements 78 Ensuring that all Claims were Resolved 78 Governance and Oversight 78 Oversight Committee 78 The Courts 78 Roles and Relationships of Various Governance Bodies 79 Actual and Perceived Independence 79 Claimant Counsel Oversight 79 Claimant Counsel Legal Fees and Legal Fee Reviews 79 Lawyer Conduct 80 Administration 81 Building Operational Capacity 81 Establishing Processes and Adjusting to Meet Unanticipated Challenges 82 The Effects of Administrative Rules on Organizational Effectiveness 82 Wind-down 82 Contributing to Healing and Reconciliation 83 Providing an Opportunity for Residential Schools Survivors to Tell their History 83 Validation of the Survivor’s Personal Experience 83 Apologies 83 Future Care Plans 84 Individual vs. Collective Healing 84 Intergenerational Healing 85 Public Information and Education 85 The Role of Compensation in Healing and Reconciliation 86 Preserving the Historical Record 87 Chapter 9: Conclusion 88 Appendices 90 Appendix I: Indian Residential Schools Agreement Schools (Schedules E&F) 90 Appendix II: The IAP Compensation Rules 92 Appendix III: Implementation of Improvements by Category 96 Appendix IV: Focus Group, Interview, and Questionnaire Participants 103 Appendix V: The Independent Assessment Process: Oversight Committee, Adjudicators, and Administration 108 References 110 CHAPTER 1 INTRODUCTION The Shingwauk Indian Residential School in Sault Ste. Marie operated between 1878 and 1970. The school site now has one of the largest collections of residential school history in the country. It has taken extraordinary courage for the thousands of survivors that have come forward to speak publicly about the abuse they suffered. It is a testament to their resilience as individuals and to the strength of their cultures.¹ n September 19, 2007, the Indian Residential policy of creating residential schools for Indigenous O Schools Settlement Agreement (IRSSA, or children with the establishment of three schools in Alberta Settlement Agreement) was implemented. The IRSSA and Saskatchewan. The residential school system – funded simultaneously signified a culmination, a continuation, by the Government and administered by Christian and a commencement of efforts towards reparation and Churches - was designed to separate children from their reconciliation for the history and ongoing impact of families in order to “civilize” them, and to “get rid of Canada’s residential school system.² the Indian problem”.³ From then until the final federal residential school closed in 1997, more than 150,000 First In 1883, the government of Canada had formalized a Nations, Inuit, and Métis children attended these schools. 1 The Right Honourable Stephen Harper, Prime Minister of Canada, “Statement of Apology to Former Students of Indian Residential Schools”, Official Report (Hansard), Canada, Parliament, House of Commons. 39th Parl., 2nd sess., vol. 142, no. 110 (Ottawa: Parliament of Canada, 11 June 2008). ² The full text of the Indian Residential Schools Settlement Agreement (IRSSA) is available at: http://www.residentialschoolsettlement.ca/settlement.html ³ Public Works Minister Hector Langevin, Hansard, 22 May 1883; Duncan Campbell Scott, Deputy Superintendent, Department of Indian Affairs, (1920), National Archives of Canada, Record Group 10, vol. 6810, file 470-2-3, vol .7, pp. 55 (L-3) and 63 (N-3), as cited in John Leslie, The Historical Development of the Indian Act, 2nd ed. (Ottawa: Department of Indian Affairs and Northern Development, Treaties and Historical Research Branch, 1978) p. 114. It should be noted that church-operated Indian Residential Schools predated confederation; the new policy was created to systematize and expand this already existing system 6 2021 FINAL REPORT CHAPTER 1 panning more than one hundred years and more than Settlement Agreement was the largest class action settlement S one hundred schools, the residential school experience in Canadian history and marked the culmination of many was not the same for every child or in every location. Some thousands of active or potential civil litigation claims. former students talk about learning new subjects; about participation in sports, music, or dance; about a teacher who At the same time, the IRSSA represented a step in a continuum tried to be kind and sheltering. Some went on to higher of efforts, legal and otherwise, to come to terms with this education. But these stories are the exceptions. For most, the dark chapter in the country’s history. Churches had by then residential school system was profoundly negative and had a offered apologies for the residential schools; the Royal lasting impact on the children, on their families, and on their Commission on Aboriginal Peoples had called for a public culture. Children as young as three were forcibly removed from inquiry into the schools5; dialogues and discussions had their families and communities and taken to the schools. When been undertaken and, ultimately, multi-party negotiations they arrived, their clothes were often discarded and destroyed. were launched to determine and achieve a comprehensive They were often no longer called by their names but were given approach to addressing these deep and complex issues. The new English or French names, and numbers by which they Indian Residential Schools Settlement