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Settlement offered for residential school legacy

Her brown eyes stared at nothing as she cast her memory back across five decades.“Indian agents” from Ottawa took her from her Teslin…

Her brown eyes stared at nothing as she cast her memory back across five decades.

“Indian agents” from Ottawa took her from her Teslin home in 1957. She was seven years old.

No one in her village — children, parents or elders — knew where the children were going when the agents loaded them onto the bus, “like the pied piper,” and drove them down the Alaska Highway to the residential school in Lower Post, BC.

“We were snatched out of our homes and sent away, supposedly for a better life,” said the Tlingit woman who, like many residential school survivors, asked not to be identified in this story.

“What kind of better life is that, getting beat up and called down and told you’re no good?” she asked.

If the children spoke their native tongue, even in secret, the nuns who ran the school usually found out, she said.

And there was punishment.

“It’s like they knew everything. We had no culture.”

Standing outside the courtroom in Whitehorse, her mouth formed into a hard line as she recalled her battle with alcoholism that began after she left school at age 15.

She did not wish to elaborate about what happened to her during eight years at Lower Post and Coudert Hall in Whitehorse.

But the witness accounts filtering through the courthouse Monday and Tuesday told of rape and molestation; of beatings from reverends, priests and nuns who operated the institutions from 1903 until the mid-1970s on behalf of Ottawa; of newly arrived children packed into school basements to fight like dogs and establish their own primal order; of a needle being run through the tongue of one student whose reluctance to abandon his language proved hard to break.

“Every kid that ever went to residential school has suffered some sort of abuse: physical, mental, sexual, cultural,” the Tlingit woman said.

“No amount of money will ever make up for the hurt, for the devastation.

“No amount of money will ever give us back what was lost in those residential schools.”

But inside the overflowing courtroom, where more than 100 First Nations people gathered over two days, a dozen lawyers were trying to make financial amends.

It’s a rare thing for so many lawyers to be working in agreement, noted Kirk Baert, an attorney with a national consortium of law firms that, together with two other groups of lawyers, is representing the residential school abuse claims of almost 80,000 First Nations people in a class-action lawsuit against Ottawa and Catholic, Anglican, United and Presbyterian church entities.

The legal case has been going on for more than 10 years.

In recent months across Canada, attorneys for the plaintiffs and defendants have appeared before Supreme Court judges, jointly urging them to approve a hard-fought settlement agreement that isn’t perfect by anyone’s standard, but is palatable to every party.

The agreement involves a “common experience payment” that will see all residential school survivors who still lived as of May 30, 2005, receive $10,000 for the first year they attended a residential school and $3,000 for each subsequent year.

Ottawa has set aside $1.9 billion for these payments. All claimants have to do is fill out a form.

But the common experience payment does not address abuse, nor is it meant to.

The proposed agreement also includes an “individual assessment payment” that requires survivors to fill out another, more complex form describing the abuse they suffered and the impact it had on their lives.

It’s different from the common experience payment that treats everyone equally, said Baert.

“The more abuse you suffered, the more compensation you receive,” he said.

Furthermore, two people who suffered the same abuse might receive different compensation, depending on the impact the abuse had on their lives.

An adjudicator will decide the level of compensation a claimant deserves, with an upper limit of $275,000 per claimant.

Each is entitled to a hearing, although they are not required to attend one to get paid.

The lawyers are estimating 15,000 people will make abuse claims, said Baert.

“Obviously the effects of what happened at those schools is not limited to the time you were at the school,” he said,

“It goes on.”

If claimants can prove loss of income related to their time spent in residential school, they can receive up to $250,000 as well.

“The adjudicator looks at all the circumstances and adds it all up,” said Baert.

If a claimant disagrees with an adjudicator’s assessment, they can go back to court, he said.

“The decision of the adjudicator is meant to be the final word, unless you go to the courts and show they made a big mistake.

“We don’t want to do everything twice.”

But once payment is received, the residential school survivor forfeits the right to ever sue Ottawa or the relevant churches for anything having to do with residential schools, ever again.

Any claimant involved in the class action who doesn’t like the deal can opt out, and must officially do so if they wish to pursue litigation, said Baert.

If more than 5,000 claimants opt out, Ottawa has the prerogative to annul the agreement.

“The only sane reason to opt out would be because you thought you had a much larger claim than the agreement allows,” said Baert.

Then, a claimant would have to cover their own legal fees and probably wait another 10 years without a guaranteed outcome, he said.

As it stands, Ottawa will pay up to $100 million in legal fees to the legal groups named in the proposed agreement — the national consortium, “Independent” council and the Merchant Law Group — on top of payments to residential school survivors.

Another $125 million in federal funds will go to the Aboriginal Healing Foundation, while $60 million will go to fund the Truth and Reconciliation Committee and $20 million will pay for commemoration ceremonies, said Baert.

The agreement forces the churches to pay $100 million into the individual assessment payment and healing programs for aboriginal communities, with 70 per cent coming from Catholic entities and 30 per cent coming from Protestant entities, on top of healing programs they already offer.

Besides funding, the settlement involves a degree of flexibility.

Claimants who are already suing the government, or undergoing an alternative dispute resolution, will have their claims rolled over into the new settlement agreement if approved.

Schools that are not listed in the agreement, such as St. Paul’s Hostel in Dawson City, could yet be added in revisions.

And residents of one jurisdiction, such as the Yukon, can claim payment in another jurisdiction, such as Lower Post in BC, where they went to school.

But the proposed agreement has a number of objectors — about 8,200 across Canada, according to Baert.

On Tuesday, after a prayer inside the courtroom, several people told Supreme Court Justice Ron Veale that the agreement was not fair to people who died before May 30, 2005.

One man told Veale the payments would lead to more substance abuse among aboriginals.

Another said the proposed agreement would not help younger generations poorly raised by residential school survivors who never learned to parent, only to “supervise,” and were often abusive.

“What’s missing, and what’s needed, is a commitment to help people re-embrace their language and culture,” said Phillip Gatensby, a support worker with the Council of Yukon First Nations who sat outside the courtroom during the hearing.

Society’s attitude of “harvesting Indians” by using their plight for profit is still at play, he said.

Ottawa did nothing until its hand was forced, when one residential school survivor decided to sue and was followed by others, said Gatensby.

He’d like to see the residential school legacy taught to children in Canadian public schools.

Although Gatensby, who went to residential school, opposes the proposed settlement, it is a small step forward.

And many First Nations people living in poverty need the money, he said.

“A symbolic gesture is acceptable. It’s cheap and it’s pinching, but it’s still a gesture.

“Other things need to follow up.”

The Yukon is the last Canadian jurisdiction to hear the proposed agreement.

Veale reserved his decision until a later date.

A unique aspect of the proposed settlement is that it allows the judges from nine jurisdictions to consult with each other in private before rendering any kind of decision.

But even if the settlement agreement passes, it probably won’t assuage aboriginal grief.

“What would make it better would be an apology,” said the Tlingit woman.

“The prime minister, the Pope or the Anglican church could say, ‘We really hurt you guys, and we’re really sorry.’”