FLAWED! Residential School settlement and the ADR process

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MORE THAN FLAWED!

Residential School settlement and the ADR process

March 27, 2004

A deliberate cover-up is being alleged against the office of Indian Residential Schools Resolution Canada.

False claims that the ADR process will compensate survivors the same as in regular court settlements . . . many injustices have been covered-up by the office of Indian Residential Schools Resolution Canada forced “gag orders” required for the settlement of Residential School Claims.

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“The hurt of one, is the hurt of all and the honor of one is the honor of all”.

Dear Friends and Relatives,

As always, it is my prayer that you and your loved ones are in the very best of health and happiness.

Phyllis Chelsea from the great Shuswap Nation of British Columbia and Alma Brooks from the great Mikmaw Nation of New Brunswick are two of the most respected Aboriginal women in Canada. Both have given their lives for the People.

Their attached perspectives on the office of Indian Residential Schools Resolution Canada’s Alternative Dispute Resolution (ADR) process along with the attached legal perspective by lawyer and sister Rhonda Ruston Q.C., make it very clear again that the ADR process is deeply flawed and needs to be fundamentally changed in order to bring justice, healing, compensation and reconciliation to the Aboriginal community of Canada, and thus to all Canadians.

“The hurt of one, is the hurt of all and the honor of one is the honor of all”.

For instance, even though the office of Indian Residential Schools Resolution Canada claims that the ADR process will compensate survivors the same as in regular court settlements, Phyllis Chelsea only received $12,000 for the physical and sexual abuse she received during years of Residential School suffering. It is clear from speaking with Residential School Survivors from across Canada that this injustice is just one of many that have been covered-up by the office of Indian Residential Schools Resolution Canada forced “gag orders” required for the settlement of Residential School Claims. To correct this injustice it is very important, in order to build a strong foundation of justice for the future that an independent investigation be held on the ADR “pilot projects” and other related settlements. If all the settlements to date were equally fair and just then why the “gag orders”?

As always, our teepee flap is always open to your perspectives.

With Warm and Loving Greetings,

Phil Lane, Jr.

International Coordinator
4Worlds

http://www.fourworlds.ca

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February 23, 2004

Mr. Phil Lane, Jr.
Four Worlds International Institute
For Human and Community Development
347 Fairmont Blvd
Lethbridge, Alberta
T1K 7J8

Dear Phil,

RE: The Federal Government’s Alternate Dispute Resolution Process (ADR) for the Indian Residential School Issue

Please allow me to share with you my strongest condemnation of the ADR process developed by the Federal Government - the process the government purports to have created in order to “resolve” the Indian Residential School issue which faces this country. In fact, the ADR process will do nothing to meaningfully, fairly or justly resolve a single case. Instead the Canadian Government has developed a process which minimizes the abuses suffered by the survivors, and makes a shameful appeal to persons who are poor, old, sick and fearful they will die before they will ever experience a fair resolution to their case.

The Federal Government is Knowingly Taking Advantage of the Most Vulnerable in our Society

By making this offer to the most marginalized segment of our Canadian society - the Native people - the Canadian government is knowingly taking advantage of their weaknesses and vulnerabilities and it makes a mockery of the compassionate and just society which the government would have the world populace believe we as Canadians represent. I will be specific:

In its Statement of Reconciliation issued through the Department of Indian and Northern Affairs, the federal government recognized and acknowledged the role its predecessors played in the development and administration of the Indian Residential Schools and it described the consequences of the schools as follows:

“This system separated many children from their families and communities and prevented them from speaking their own languages and from learning about their heritage and cultures. In the worst cases, it left legacies of personal pain and distress that continue to reverberate in Aboriginal communities to this day”.

Yet when the living survivors of the schools commenced lawsuits in an attempt to seek a sense of justice and closure to this tragic past, the government and the religious organizations which ran the schools vigorously fought the lawsuits from the beginning, using every strategy designed to try to damage and delay the lawsuits and burden the claimants and their lawyers past their abilities to continue on.

Met with fierce advocacy on behalf of the survivors by the lawyers dedicated to their cause, the government was, largely unsuccessful with their strategies. It therefore announced on December 20, 2002 “a unified and holistic plan designed to settle thousands of claims for compensation by former students of Indian residential schools”. This became known as the “Expedited Settlement Process (ESP)”.

In developing the plan subsequent to its announcement there was much window dressing and the government clearly wished to appear to be “consulting” with certain constituent elements from the lawsuits. However the fact is that the government effectively proceeded to create a process without meaningful participation by the claimants’ lawyers, by claimants themselves, or by the Aboriginal elders who could have assisted in the creation of a humane and claimant-appropriate process.

Furthermore, as the plan has begun to unfold, it was evident that it would neither meet its stated objective nor would it result in a just and fair process for claim resolution. Then on November 6, 2003 the Federal Government announced a second alternate settlement process it called the Alternate Dispute Resolution Process (or “ADR”).

The Most Fundamental Flaw in the Government’s Approach to the IRS Issue

The most fundamental flaw to the government’s approach to the IRS issue is this: the government is treating these cases as nothing more than personal injury files - akin to motor vehicle accident cases. In doing so, the government has maintained that they will only address wrongs which it says are currently “legally recognized”. The government will only address claims respecting sexual and/or more serious physical abuse. (There is also another very small, almost inconsequential matter it is recognizing as “wrongful confinement” discussed below). It has steadfastly asserted that there is no basis in law for the government to consider addressing anything else.

This is a fallacious argument - a false dilemma which the government has created around the failure to recognize the special relationship which has existed between the Federal Government and the Aboriginal persons of this country from the moment the treaties were signed. Upon the signing of those treaties the government acknowledged the concept of “first nationhood” for the Aboriginal people. From that same moment, the relationship between first nations and their people on one hand and the federal government on the other became fiduciary, necessarily one of trust and honour in the face of the complete and total absence of equal bargaining power between the two parties. This fiduciary relationship is well recognized in Canadian law.

The Most Serious Deficiencies in the “Settlement” Processes

Although there are some subtle differences between the two processes (ESP and ADR), they are both seriously flawed in much the same ways, a few of their most serious deficiencies being:

1. The processes are restricted to dealing with claimants who have suffered sexual abuse or serious physical abuse or “wrongful confinement”.

The definitions of physical abuse are seriously restricted by describing the abuses in accordance with the accepted “white” standards of the day in the absence of any consideration for the standards of the native communities from which these children came (which communities, incidentally, were healthy and fully functioning until the passing through the schools of enough generations of native people so as to seriously impair their cultural context).

Furthermore, the ADR plan describes physical abuse as physical injuries, caused by an adult at the school, which injuries lasted more than six weeks for which the injured child was hospitalized or for which he/she should have been kept in a hospital. It will also include if that child was physically abused in a way that exceeded the level of discipline normally allowed at the time, or if that child was disciplined for an improper purpose, but in these cases the compensation is limited to a maximum of $3500 and it may be less. Keep in mind this is for physical abuse not resulting in hospitalization but which was suffered by many, often on a daily basis, for the 8-10 years of their childhood they were confined to these schools.

The ADR process also will compensate for “wrongful confinement” but it is important to understand that the government has defined this as being confined alone in small spaces for a long time that was not “appropriate” for a child of that age. It specifically does NOT include being forced to go to the residential school and being forced to stay against the will of the child or his/her family.

2. The government refuses to recognize any other kinds of damage whatsoever caused to these children by the wide ranging abuses perpetrated against them by their caregivers.

In fact, in its Settlement Agreement signed with the Anglican church, the government has contracted to ensure that all other claims “will be vigorously opposed” (Part VI par. 6.3), in complete and total refusal to develop a mechanism where the claimants can be heard on those abuses which ultimately were the most destructive of all:
- forced removal from their families
- the wilful and purposeful destruction of their tradition cultural identities
- emotional and psychological abuse
- the delivery of an incomparably inadequate education
- lack of proper medical attention
- the environment of violence and fear of impending abuse which surrounded these children every minute of every day they were confined to the schools

It is estimated that only about 15-20% of the survivors of the residential schools will qualify for the settlement process under these rules thereby necessitating the continuation of the lawsuits by the lawyers representing the other 80% of the survivors and those individuals who refuse to be taken advantage of by these processes, even though they may qualify for it.

The government is expending unlimited financial and human resources in a mammoth effort to prevent these survivors from ever being able to obtain any justice from the courts.

3. The damage awards will be determined in accordance with a point system offered by the “Compensation Framework”, a meaningless and inhumane response to the needs of the survivors.

This system will be utilized by the adjudicators hired by the federal government who will be charged with the responsibility of listening to a play by play description from the individual school attendees of every kind and nature of the sexual and physical abuses suffered by them in the schools and the frequency of their occurrences, with a view to determining the number of “points” each act or scenario should receive. Points are then accumulated and translated into a cash payout based on the total score achieved by the school attendee.

As an example the adjudicators are asked to distinguish between such events as:
“-One or more incident of anal or vaginal intercourse.
-Repeated, persistent incidents of oral intercourse.”
for which the school attendee can score 36-44 points, and:
“-One or more incidents of oral intercourse.
-One or more incidents of digital anal/vaginal penetration...”
will only score the school attendee 26-35 points.

This is a distressingly meaningless response to the claimants’ needs to be heard and to be respected. I cannot be the only one who believes this to be an astonishingly demeaning end to an immeasurably tragic chapter in the lives and history of our Aboriginal people.

4. The Government is prepared to pay to the Catholic school survivors only 70% of their damage award.

The government has imposed another rule to the settlement process whereby those persons who went to a Catholic school will only receive 70% of the “damage award” determined to be suitable by the federal government agents. If the Catholic school attendee wants the other 30% he/she will have to continue to sue the Catholic defendants through the Court process.

5. The Government is paying a different rate of compensation between the survivors of schools in different provinces, notwithstanding the similarity of the abuses suffered and consequences resulting therefrom.

Individuals from Ontario and BC will receive larger compensation packages than those from the Prairies and the Maritimes by the creation of yet another meaningless and unjustifiable condition of the ADR process.

The Blood Women Seek to Take the Federal Government to the United Nations

As you know that the Blood Women of southern Alberta, the Kainaakiikis, passed a Resolution on December 8, 2003 to take the Federal Government to the United Nations for the way they are handling the Residential School cases. It will NOT result in any financial compensation. However is a courageous step try to make the Government of Canada accountable for how it is handling this situation. We hope also to find dignity, justice and closure to the immeasurable tragedy that described the Indian Residential School System of this country. The Blood Women do this on behalf of all persons who were forced to go to one of these schools.

Towards Dignity, Respect and Healing

A liberal democracy is characterized by the rich, complex social order it seeks to create, one which recognizes not so much the power of the majority, but rather the importance of protecting and promoting the well being of the minorities and the less powerful. It is in this context that the individual native survivors, the churches, the government and the citizens of Canada can bring closure to this national issue in a way that heals and enhances the relationships between these important constituencies and treats the survivors with the respect and dignity for which they cry out.

It is imperative that we as a country work with the individual survivors, their families, elders and lawyers to further develop the ADR process in a manner which will afford them the dignity and respect they deserve, and which will offer the survivors a sense that justice has been served. This sense of justice is critical - there can be no healing without it.

I thank you for all of your efforts in continuing to try to find a sense of justice and closure for the survivors of these schools and their families and wish you continued strength.

Yours Sincerely,

Rhonda Ruston, Q.C.
Matsowa’ Pitapiaakii

Phone: 403 - 328 - 4483
Fax: 403 - 327 -5480
Email: rkruston@telusplanet.net

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February 9, 2004


Dr. Phil Lane Jr.
4 Worlds International Institute inc.
Lethbridge, Alberta

Dear Dr. Phil;


In 1999, I coordinated and directed a project sponsored by the St. Mary’s First Nation Health Center, and was funded by The Aboriginal Healing Foundation, to do self -healing work with the Residential School Survivors who attended Shubenacadie Nova Scotia.

I had a bird’s eye view of what was happening to the survivors who were participating in the ADR Process (many being the same people) but I was told by the foundation that I or any one working in programs sponsored by the Aboriginal Healing Foundation could not be involved in any way with the litigation or compensation processes.

When my project got started I became aware of the fact that Survivors, under the leadership of Dorothy May Paul -Red Bank First Nation - had been organizing Survivors for a good number of years, from all over New Brunswick, and was educating them about the wrongs they had endured in Shubie, and about seeking some kind of justice & compensation - she had managed to gather a large number of Survivors and were conducting meetings at the Mother Earth Lodge - in Red Bank Reserve.

Their group was called SOS - Survivors Of Shubie. SOS had been working with Lawyer Norval Getty who at the time had his office in Fredericton, in the law offices of Gaffany & Bear Associates. Norval Getty was contacting Survivors from all over, and asking them to fill out a questionnaire and make applications to allow him to represent them in the process of litigation. I was asked to distribute the questionnaires to the Survivors who were participating in our project. The applications were to be returned to Norval Getty’s office.

Some time later I was informed that for what ever reason Norval Getty had been disbarred and unable to continue with the legal files of residential school survivors and that the files were confiscated by another lawyer in Fredericton, Les Jackson. It was then that Hank Bear went to access the files stating that they belonged to the firm. He must have gotten access to the names, and addresses of the Survivors because he wrote to them asking them to give him permission to represent them. He stated that he was a Maliseet Lawyer, and would be the best person to continue with their cases. That is how Hank Bear came into the picture - although Norval Getty continued to do the paper work at Mother Earth Lodge, Hank became their lawyer, and Hank also involved a lawyer by the name of Harold Dourghty in the beginning.


It was my understanding at the time, and the understanding of the Survivors, that the ADR process was to be Survivor driven, and that Survivors were to have the final say on any and all negotiated Agreements, directions or results etc.

By 2001 - after Survivors waiting to hear something for two years - Hank Bear organized a meeting of Survivors held at the Lord Beaver brook Hotel, and asked me to provide Elders Services. I attended the meeting. It did not take very long to realize that there was great dissention among some of the Survivors - other survivors were attending for the first time and did not seem to be aware of what was going on. The SOS group was present and indicated that they wanted a talking circle or at least an opportunity to speak with everyone - to explain what had transpired Hank had hired Genine Paul, as his secretary and they had set the Agenda. The Survivors were not permitted to speak. Hank told the survivors that he had been to Ottawa negotiating their Agreement and here it is “take it or leave it,” I did the best I could on your behalf. One Survivor got really angry and picked up a chair and put it through the wall - that provided the excuse for not having further meeting. Hank Bear then approached individual Survivors and took them upstairs to his suite - and got them to sign papers accepting the Agreement and told them not to discuss their case with any one, and that he would treat the matter with lawyer/client privilege.

Over the next three years Survivors called me many times asking if I knew where Hank Bear was because he never returns their calls. Survivors were pretty much left in the dark with little or no contact with the process, until it was time for them to come to Fredericton, NB for their psychological assessments and hearings. Here are a number of things that transpired that I am personally aware of:

The “take it or leave it “ Agreement that Hank Bear negotiated included his own remuneration would be paid directly from Justice - at $125.00 per hour - regardless of the outcome for Survivors in the ADR process.

Hank Bear took the ADR process away from the Mother Earth Lodge and placed the headquarters in a law firm set up by himself and Chief Steward Paul on the Tobique Reserve.

Hank over exaggerated the outcome of the ADR process - raising false hopes and dreams - before it even got off the ground. He told Survivor Dianne (Sacobie) Bali that she would never have to worry about money ever again- she will be able to buy a big house and a new car and still have lots of money left over. He told the seniors that they would get priority in the hearing process - none of which happened.

Survivors called me continuously trying to find Hank - he did not return their messages or phone calls - in fact Hank was busy running for Chief in the Tobique band elections.

Hank paid Genine Paul $5,000.00 per month to write cheques - more to keep her quiet - Genine’s mother is a Survivor and she had been elected as a spokes person for the SOS group during a meeting early on at the Mother Earth Lodge.

Hank hired Bob Johnson - who has a masters degree in Social Work to accompany him on home visits when recruiting more Survivors - a letter I personally received from a Survivor - the letter mostly talked about what a great guy Hank was and how sensitive he was with the Survivors etc. Nothing about the safety of the survivors.

During the healing gatherings hosted through my project for healing - Hank frequently came and met Survivors to do his business dealings - this was a real distraction for those survivors. I feel he took advantage of our project and he was told more then once not to bother the survivors at this time, and that he should hold his own gatherings to do his business.

In 2003 - five years - survivors started in their hearings - individually they were called in first for their psychological assessments, and then later for the hearings.

One survivor (Rose Tomah) called me shortly after her psychological assessment and asked me where she could get money to pay for psychological counseling as she felt suicidal and they would not take her without first getting paid. Rose lives in the Bangor Maine area. I contacted Genine to report the incident - and she said there was no money in the ADR process for psychological counseling. I then approached the ST. Mary’s Child & Family Service Agency (Rose is a member of St. Mary’s Band) and was told they could not help people off reserve. Rose had no safety net - she had no follow -up - she had no one who gave a hoot. She has since suffered a number of strokes and still has had no assistance. Rose told me that when she came out of her assessment - there was no one available to her at the hotel to talk to - she was very upset and she walked out of the building alone.
Hank and his wife went to Cleveland Ohio - to visit his wife’s family - he dropped in on a Survivor who lives in the vicinity ( Peter Sappier - 72 years old ) they shot the breeze for about 15 to 20 minutes and went on his way. I will bet he paid him self for that trip. Mileage - meals- accommodation - and $125.00 per hour.
Survivor -Dianne Sacobie Bali was the last person to attend the assessments & hearings - she asked me if I would accompany her as a support person. I agreed. Her assessment & hearing took three days. I was not permitted to accompany her in the hearing room and was made to sit outside in the lobby. Three times Dianne had to break from telling her story - in tears and obviously upset - we went outdoors to a private area so she could vent. This process brought up a lot of personal and family trauma besides the trauma she experienced in the Shubie School. There was a white psychologist or social worker hanging around in the lobby but Dianne did not know her & had never met her up to that point. I stayed with her the whole time until she went into the hearing again.
When Dianne had finished - Dianne, Hank and I went to the restaurant to get something to eat. Hank was jubilant, and told Dianne and I that he was moving to Grand Mannan Island, off the coast of New Brunswick, to build a house for his family, and that his wife was used to luxury. He was going to hand over the ADR files to Harold Daurghty. I couldn’t believe my ears. He was walking away from the Survivors after he made all that money.

Since the completion of the ADR - assessments & hearings - I have received feedback from several survivors - in tears.

Survivor Patsy Paul told me that they concluded that she was a compulsive liar and that her story was rehearsed therefore her story could not be believed.

Sisters Geniva & Doris Paul - it was reported they were offered $700.00 - these women are handicapped and lack education so would accept any offer without fully understanding the process. No support person was there to accompany them or look out for their best interest.

Survivor Peter Sappier - accompanied by his wife who also testified - was given a positive assessment - but lawyers for the crown decided that he was a master manipulator and was able to manipulate the psychologist therefore he would not be entitled to compensation.

Dianne Sacobie Bali - was told by her assessment that her story was just too outrageous and could not be believed - therefore no compensation.


Dr. Phil I hope this information will lead to meaningful help in the fight for justice for these residential school survivors. It is my honest opinion that the ADR process in the Atlantic region resulted in a clear case of re-victimizing the survivors who not only participated in it, but also those who worked so hard to find justice and relief for themselves and their loved ones. When I say this I think of Dorothy May Paul, who is a fourth generations of residential school survivors ( grandparents- parents - herself & her siblings) who is also battling cancer but refuses to give up the battle. She should receive additional compensated for the additional pain and anguish caused by this ADR Process to her and her family.

It is my opinion that they were taken advantage of by not only the lawyers, but also the Justice Department and the Government of Canada, - once again. I declare to the best of my ability that these statements are true.


Sincerely Yours;


Alma Brooks
50 Maliseet Drive
Fredericton, NB
E3A-2V9

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To Phil Lane
Lethbridge, AB

I am contacting you to let you know my thoughts regarding the Residential School settlement and the ADR process. I became involved a few years ago when there was an option to file grievances against the Cariboo Residential School at St. Josephs Mission outside of Williams Lake BC.

In my involvement, with social work at Alkali Lake, I am aware of many instances and many people who have many grievances about their time at the St. Josephs Mission. We struggle today in all aspects of life.

I assisted the Residential program to talk to people to enrol in a civil case to hold the church and government accountable of having caused the loss of so much because of the affects of Residential School.

At that time, there was great hope from people as they hoped for justice for so long. Generations of families filed an application. There came a time where people agreed to go with the ADR process and not go to court. There was a month of intense validation and retelling of our stories. This period of validation caused much trauma within the community. Due to end of funding for the program at that period I was no longer an employee and left, in midst of the validation process.

A year later as settlements were offered I dreaded the day I would receive a call and be informed of the offer from the government. When I received the call, I was in total shock.. I thought it was a joke. I remember telling the lawyer that I would not agree because it was not even enough to cover my funeral costs. I also said that I would not settle for the meager amount because I would not want to be responsible for other settlements still to come. They called Alkali's Case , the pilot ADR project. I was told that I had one week to come to an agreement to sign or I would not get a settlement. In that week I struggled in my mind to make a decision.. Of the claimants, I was informed that I was the only person not willing to sign and that I could carry on alone . I finally decided to sign for the meagre amount as my family was struggling financially. The conduct of the people involved was unacceptable. I was asked to write a note of acceptance and fax it to their office back east.. It was a very humiliating act. I felt further victimization from all concerned. I feel that everyone who filled in an application was eligible for compensation. from our grandparents, our parents, our children and their children to the great-grandchildren. The one time when we met was not enough time to validate eligibility. One circle sharing was not enough time to gain trust from all, to hear from all from the depth of their soul. Only the vocal people were able to give their story. For this I am greatly disturbed . The effort was that, an effort. At this point there is the question of the 30% which is still due for us to receive. No one seems to know how that will move ahead. Andy has strong views on the ADR should you have need to hear from him. There are definitely other people who are not satisfied with the ADR process.

Please be in touch if there is anything further you need to know from me.

Sincerely,

Phyllis Chelsea