Govt accused of misconduct/offensive financial mismanagement

[Government Misconduct]

Yesterday, (Tuesday February 15, 2005) the House of Commons Standing Committee on Aboriginal Affairs and Northern Development commenced their hearing into the Effectiveness of the Government Dispute Resolution Process in resolving residential school claims.

The Committee heard evidence from a panel of residential school survivor organizations. The survivor groups talked about the flaws associated with the Government's ADR and the incredible costs being squandered into its administration in contrast to the compensation going towards victims of residential school abuse.

In questioning to the panel, Jim Prentice, Conservative MP, asked why $125 million had been spent by the Government on administration of the ADR system while only $1 million had been provided in compensation.

The Committee then heard from the National Consortium. The National Consortium explained that an estimated 2,500 residential school survivors died during the first 65 weeks of the Government's DR program in which a mere 50 cases were settled.

The Consortium explained how the Government's ADR scheme was fundamentally flawed and could not be fixed. The Consortium asked the Committee to recommend that the Government immediately negotiate a fair, efficient and comprehensive binding resolution of all residential school claims to be implemented with Court supervision and approval in the Baxter National Class Action.

In questioning to the panel, Bernard Cleary, a Bloc Quebecois MP, asked why all parties don't sit down to work out a resolution. The Consortium's response was simply that the Government has been completely unwilling to negotiate a comprehensive resolution and instead prefers to squander funds through a unilateral dispute resolution program that has been widely criticized.

Also in questioning to the panel, Pat Martin, an NDP MP, criticized the fact that in addition to the enormous administrative costs hundreds of Department of Justice lawyers are fighting residential school claims also at an exorbitant cost.

The Liberal MPs tried to suggest that the administrative costs were related to start up costs but the Consortium explained how the financial inefficiencies were build into the process and were not primarily related to start up costs. The Consortium referred to the ADR process as a program "made by bureaucrats for bureaucrats."

The hearing will resume Thursday (February 17, 2005) with testimony from survivors and from Chief Adjudicator Ted Hughes.

- - - - - - -

Federal government accused of misconduct and offensive financial mismanagement . . . and inadequate responses to residential school issues . . .


Feb 15, 2005

Submissions to the House of Commons Standing Committee on
Aboriginal Affairs and Northern Development

Re: Study on the Effectiveness of the Government Alternative Dispute Resolution
Process for Resolution of Indian Residential Schools Claims

Submissions by the National Consortium of Residential School Survivors’ Counsel


The National Consortium

The National Consortium of Residential School Survivors’ Counsel (the “National Consortium”) is a group of 20 law firms from across Canada acting on behalf of over 6,500 victims of the residential school tragedy that have sued Canada for the wrongs done to them.

Our clients have authorized us to speak on their behalf and to demand compensation from the Government as a means of holding the Government accountable for the shameful residential school program it orchestrated.

The victims and their families demand an immediate, fair, efficient, comprehensive and binding resolution of all residential school issues.

Fair resolution of residential school claims is a matter of utmost urgency as an estimated 2,500 residential school survivors die uncompensated each year.

Members of the National Consortium have seen the Government use every available strategy to delay and deny justice to residential school survivors in what we believe to be a concerted effort to coerce our aging clients to accept whatever half-measures are offered to them.

Our clients seek compensation for all residential school survivors without the necessity of a hearing (similar to the Japanese Internment settlement) and our clients support a negotiated resolution implemented through a National Class Action (like in the Hepatitis C settlement).


The Litigation

By way of background and to give the Committee some idea of the experience and perspective we bring to these deliberations, members of the National Consortium are supporting the following litigation against the Government:

The Blackwater v. Canada case—a case that decided that the Government was 100% responsible for residential school abuse—the Government has appealed the decision and the case is scheduled to be heard by the Supreme Court of Canada in May, 2005;

The Alberta test cases—all of the thousands of residential school lawsuits in Alberta are being case managed in a test case process—the test cases are scheduled for trial in January of 2006 and will directly address aspects that are important to survivors but that Canada refuses to recognize in any current settlement process;

The Cloud Class Action—a Class Action on behalf of all residential school survivors of the Mohawk Institute in Brantford, Ontario and their family members was certified by the Ontario Court of Appeal in December of 2004—leave to appeal that decision has been sought by the Government and a decision on leave is expected this spring; and,

The Baxter National Class Action—a National Class Action has been advanced on behalf of all residential school survivors in Canada (all estimated 85,000 living residential school survivors) and their family members—the Baxter National Class Action is being managed by the Honourable Mr. Justice Warren Winkler of the Ontario Superior Court of Justice and a case conference is scheduled for February 16th at which time a motion for certification date will be requested.


Inadequacies of the Government’s Response to Residential School Issues

The National Consortium believes that the Government’s response to residential school issues has been nothing short of a national disgrace.

The Government’s response has been one of almost casual cruelty, in which bureaucratic process has been allowed to trump decency and humanity.

While paying lip-service to the suffering and harm caused by residential schools, the Government of Canada has made the road to justice almost impassable for the survivors.

In the name of creating "options" -- as though residential school survivors were buying a car -- the government of Canada has created its own, ever varying, self-serving system of half-measures which will drag out the resolution of residential school claims for decades. Those measures are costing taxpayers far more than they have to and they are costing survivors even more dearly with their lives.

The only option for our clients is justice and the ADR process does not provide justice for our clients.

The National Consortium makes the following specific criticisms of the Government’s Response to Residential School Issues:

1) Offensive Financial Mismanagement:

Every year Indian Residential Schools Resolution Canada spends $4 on administration for every $1 on compensation;

Since its launch, the Government’s ADR program has spent an estimated $100 million on administrative costs with only an estimated $1 million being paid in compensation;

The Government is about to spend another $5 million on hiring investigators to challenge the credibility of residential school victims;

The Government has come up with a resolution scheme that is so complex it had to spend millions hiring “Form Fillers” to assist people in applying to the process;

27% of the Department of Justice Civil Litigation department is devoted to defending residential school claims with few if any settlements achieved and with an unduly restrictive mandate for negotiation of settlements; and,

The Government’s ADR Model B process offers maximum compensation of $3,500 with per hearing administrative costs averaging over $20,000.

2) Resulting Re-victimization:

The ADR scheme prevents and restricts victims from talking about the full nature of the abuses they suffered at residential school and limits their evidence to proof of physical and sexual abuse. Without addressing their entire residential school experience and the harmful effects on their lives, the program delivers none of the promised healing for survivors;

Despite spending over $20,000 on administrative costs to conduct an ADR hearing for an elderly residential school survivor named Flora Merrick, the Government sought an appeal of the mere $1,500 awarded to her though the process; and,

The Government continues to suggest that residential school victims deserve compensation only for serious physical abuse and for sexual abuse thereby suggesting that the other forms of abuse experienced by residential school survivors were somehow appropriate.

3) Government Misconduct:

When designing the ADR scheme, the Government refused to consult residential school victims in Alberta because the victims wanted their legal counsel to be present;

The Government has prevented survivor organizations from supporting the Baxter National Class Action;

While the Government represents that their ADR process covers instances of ‘wrongful confinement’ they have defined wrongful confinement so narrowly that not one application to the ADR has even tried to meet the criteria for wrongful confinement as they have defined it;

The Government continues to boast about their “successful and fair resolution options” while at the same time acknowledging publicly that the system is gravely flawed;

The Government is well aware that its “options” are too slow for survivors. Recently they sent a letter to survivor’s counsel offering, in certain limited circumstances, to pay claims even though the survivor has died. This shows in a chilling way, where the government's priorities are. It would rather see victims die than change its processes to ensure they are compensated in their lifetime;

The Government of Canada has persistently ignored the call of both the Royal Commission on Aboriginal Peoples and the Law Commission of Upper Canada for a Public Inquiry into the Residential School tragedy; and,

The Government has refused to even participate in any discussions with residential school lawyers relating to a comprehensive resolution of residential school issues. No responsible litigant let alone the Government of Canada should behave in such a cavalier fashion.

4) Survivor Mistrust:

In the same time it has taken the Government’s ADR scheme to resolve 50 cases, over 2,500 residential school survivors have died;

The Department of Justice has appealed virtually every residential school decision to date;

Despite accepting applications to the ADR by survivors of the Mission Baptist Residential Schools in the Yukon, the Government has now delisted that school as one eligible for the Government’s ADR;

Our clients see the Government’s ADR scheme as a unilaterally imposed, bureaucratic answer from those that victimized them through the residential school system. They do not trust and will not participate in any system devised and implemented unilaterally by Canada;

Survivor mistrust is shared by the Courts. Recently the Ontario Court of Appeal dismissed the ADR with the following words: “It is a system unilaterally created by one of the respondents in the action and one that could be unilaterally dismantled without the consent of the appellants.”; and,

Our clients are seeking a comprehensive resolution through an independent decision maker whose impartiality they can trust.

It seems that there is no political will on the part of the Government to try to make amends for the residential school tragedy. Instead, the Government of Canada appears content to allow survivors to die uncompensated while they seem to continue to offer the bare minimum necessary to attempt to delay and dissuade the ongoing litigation.


The Solution

The National Consortium believes that the Government must immediately negotiate a fair, efficient, comprehensive and binding resolution to all residential school issues. This could readily be accomplished under the auspices and supervision of the Ontario Superior Court through the Baxter National Class Action.

The National Consortium believes that resolution through the Baxter National Class Action would provide a binding and impartial mechanism to ensure the fair implementation of any resolution.

If a resolution cannot be achieved through good faith negotiations, any legal disagreements and the certification of the Baxter National Class Action should be fast-tracked for consideration by the Supreme Court of Canada.


Recommendations

The National Consortium requests that the House of Commons Standing Committee on Aboriginal Affairs and Northern Development make the following recommendations:

1. That the federal government immediately negotiate a fair, efficient, comprehensive and binding resolution of all residential school claims under the auspices of the Ontario Superior Court of Justice in the Baxter National Class Action;

2. That any comprehensive resolution be implemented under Court supervision and approval throughout the process; and,

3. That the Government’s spending on residential school claims administration be subject to an immediate audit by the Office of the Auditor General of Canada.


We thank you for the opportunity to make and present these submissions.

___________________________
Alan Farrer
Spokesperson for the National Consortium of Residential School Survivors’ Counsel

Thomson, Rogers
Suite 3100, 390 Bay Street
Toronto, Ontario
M5H 1W2
Tel: 416-868-3217
Fax: 416-868-3134

[She Blew It!]

Canada Accused of Stonewalling Residential School Survivors . . .

"Survivors were listening to Ms. McLellan and her government this morning. She had a chance to reach out to them and to give them hope. She blew it." Craig Brown of the National Consortium, representing the victims of abuse.

News and Comment
by Tehaliwaskenhas
Bob Kennedy,Oneida
Copyright
Turtle Island Native Network
http://www.turtleisland.org

February 23, 2005

Despite growing opposition to how the federal government is handling the residential schools issue, Deputy Prime Minister Anne McLellan continues to defend it.

Naysayers have pointed out the bulging bureaucratic boondoggle, known as Indian Residential Schools Resolution Canada. "The fact that program administration costs are four times settlement amounts."

Deputy PM Anne McLellan stood up in the House of Commons today and claimed, "The vast majority of dollars will go to the victims". She said she is, "Conscious of and sensitive to delays, that are inappropriate". When questioned by opposition politicians about the harm done to survivors, she said, "I am fully aware of the trauma".

When she appeared as a witness yesterday at the House of Commons Standing Committee on Aboriginal Affairs, she affirmed her support for the Alternative Dispute Resolution process.

Speaker after speaker before her, were highly critical of the government's handling of residential school abuse claims, especially the "flawed and ineffective" Alternative Dispute resolution process. It has been criticized by the courts, by the AFN, by the Canadian Bar Association and most importantly by survivors themselves.

In the face of all the facts being thrown around, the Deputy Prime Minister stood up in the House of Commons during Question Period today and produly explained, "There are just over 13,000 claims and there have are just over 2,000 settlements". She went on to say the government's ADR process is receiving "17 new applications a week".

Perhaps she should consider another fact - victims of abuse at Indian Residential Schools are dying faster than they are getting compensation for physical and sexual abuse.

It has become very obvious that the current approach of the government is not working. The Canadian Bar Association said, "The most telling failure of the current dispute resolution program, however, is that there have been very few applications to it and only a handful of settled cases. The fact that program administration costs are four times settlement amounts also reflects badly on how the program is achieving its intended result".

Lawyers representing victims of abuse, called the handling of the residential school crisis "a slap in the face" to residential school survivors.

Craig Brown on behalf of the National Consortium of Residential School Survivors Counsel commented on the Deputy prime Minister's appearance before the Committee yesterday, "Ms. McLellan could have taken a step towards justice and reconciliation this morning. Instead she stonewalled".

Brown added, "Survivors were listening to Ms. McLellan and her government this morning. She had a chance to reach out to them and to give them hope. She blew it".

Both the Canadian Bar Association and the Assembly of First Nations have recommended a new approach, involving compensation for each residential school survivor based on the duration of their term at a residential school.

It is consistent with the proposal contained in the Consortium’s litigation plan filed last year in the Baxter national class action.

However Ms. McLellan said "the business case" for this approach had not been made out.

"Surely justice, humanity, reconciliation and fairness to residential school survivors are as important as ‘the business case',” said Craig Brown of the National Consortium, a coalition of 20 law firms from across Canada seeking a negotiated comprehensive settlement approved and supervised by the courts on behalf of residential school survivors.

AFN National Chief Phil Fontaine has said he would welcome a court-supervised settlement of all residential school claims.

More about the concerns raised about the government's approach . . .
http://www.turtleisland.org/discussion/ ... =5171#5171

For more about Residential Schools see . . .
http://www.turtleisland.org/resources/resources001.htm

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February 22, 2005

Testimony given at the House of Commons Standing Committee on Aboriginal Affairs

Witnesses included the Canadian Bar Association and the Assembly of First Nations

Mr. Jeffrey Harris (Chair, National Aboriginal Law Section, Canadian Bar Association): Thank you, Madam Chair and committee members, for inviting us here today.

We'll break down our presentation into two parts. I will address some of the concerns that we have with the current ADR process, Mr. Devlin will present some of the recommendations that we have for fixing the process.

At the outset, Madam Chair, I want to say that when the ADR process was first announced by the government in the fall of 2003, we corresponded with Minister Goodale, in charge of the program at that time, advising that we supported an ADR process for the resolution of these outstanding claims. We agree that there needs to be a process outside the regular litigation process in order to bring a fair resolution.

Having said that, we believe there are some fundamental flaws with the current process, and I intend to outline some of our concerns. As Ms. Bercovitch indicated, our full report will be available shortly and will give you more details about our concerns.

The ADR process is designed as an alternative to civil litigation, but unfortunately the model that's used is based upon corrective justice; that is, a tort model of justice, which imports elements of blame, fault, harm, and wrongdoing. The residential school reality calls for a restorative justice approach. It calls out for reconciliation. The residential school system was a system that was designed to eradicate culture. It was designed to do that by isolating children from their families, where it would destroy the culture and ensure their assimilation. It is like no other experience that Canadians have lived through. Fundamentally it calls for restorative justice. Corrective justice is not equipped to respond to the intangible harms at issue in the residential school cases.

Another problem with the program, Madam Chair, is that it does not address the full range of harms experienced by the students. The schools were established to stamp out aboriginal culture. This was to be achieved by denying the right to speak one's language, by ridiculing culture, by separating children from their families. The program does not recognize the damage caused by loss of language and culture.

The current scheme addresses only firmly established and narrow grounds for tort claims; that is, it deals only with sexual abuse and physical abuse and, in some cases, confinement, as defined. In dealing with the punishment, it applies the standard of the day test, which says that if the punishment was appropriate to the standard of the day, you're not entitled to compensation. Well, that deals with issues of Crown liability, but it undermines, in our respectful view, the credibility of a program that is designed to resolve the legacy.

It does not recognize that the standard of the day for aboriginal children, with their families and in their homes, did not include physical punishment. It does not recognize that the repetition of an acceptable punishment is compensable; that is, repeated strapping, for example, is not compensable despite the fact that clearly that would not be, in our respectful view, acceptable. And it does not respond to the unique punishments, such as forcing children to kneel in a public place with their arms outstretched for hours, hair cutting and shaving, lengthy confinement in dark closets, being fed bread and water. It doesn't recognize those types of losses.

It doesn't recognize the conditions in which the children lived. In one report in 1908, as we've indicated in our report, an inspector called the conditions in an Alberta school “deplorable”. The program does not recognize the poor quality of education in that children have spent more time on unpaid maintenance and housekeeping than they did on learning. And it doesn't recognize intergenerational impacts. We now have generations of children who are parents but who've never learned how to be parents.

The ADR program, in our respectful view, Madam Chair, may be causing additional harm. We've seen the application form, some 40 pages, that causes applicants to relive in detail the agonies of their existence in the residential schools. For many of those people, they are unable to fill out those applications on their own. We submit that the application process in itself is revictimizing the survivors.

 (1210)

And the process takes too long; it isn't speedy. I'll be addressing that again later on in my presentation.

The process, in our respectful view, is not working. Numbers have been thrown around here today. Let me give you the numbers we have. This is based upon the program's website as of December 6, 2004. According to that website, only nine claims had been resolved through the ADR process.

We've heard from the Deputy Prime Minister that 1,200 people applied to the program. That's out of 13,000 people who have filed claims in the court. Only 1,200 have decided to avail themselves of this process. There's a reason for that. We submit that the problems we've identified earlier are the reason for it.

We have a total of only 1,809 claims that are resolved. The Deputy Prime Minister referred to 2,000 claims. In clarity, those include all ways of resolving claims, including through the court process.

If we were to do a closer analysis we'd find that only 7% have chosen the ADR process, and as we have it, 0.005% have been resolved through the ADR process. That, in our respectful view, is not satisfactory. There is a fundamental problem with the system, and it needs to be fixed.

Again, we've heard from members of the committee the amount of money that's being spent in administration. The number of lawyers being hired by the Department of Justice is absolutely mind-boggling. In Winnipeg alone we have 15 lawyers who are hired specifically to deal with residential schools claims, and in Saskatoon my understanding is that there are 25 lawyers. That's just in two small centres. It doesn't account for other centres across the country. There's a growing industry of Department of Justice lawyers specifically to deal with these particular claims.

In our respectful view, Madam Chair, the process needs to be fixed if it's to be credible and if it's to offer resolution of these long-outstanding grievances.

Thank you.


Mr. Christopher Devlin (Vice-Chair, National Aboriginal Law Section, Canadian Bar Association): The Canadian Bar Association recommends a different model. Currently it's a corrective justice model; we're recommending a restorative justice model in our paper and in the executive summary we've handed out to the committee.

There are three pillars to this restorative justice model. The first and the central pillar is a reconciliation payment, a blanket payment not just to the 1,200 applicants or the 13,000 claimants in court, but to all residential school survivors as of January 1998, when the government apologized and in our view admitted liability for the residential school disaster.

This reconciliation payment is very important. We think it fundamentally adjusts the loss of culture and language, which was the raison d'être of the residential school program. It would go a long way to acknowledging and resolving the current class actions and also potential future class actions. Many of these people.... The average age of the survivors is 57, and we note from Stats Canada that the life expectancy of aboriginal people in Canada is 61 years, so time is of the essence to have an efficient resolution of these claims.

We feel that an ex gratia reconciliation payment acknowledging that loss of culture and language is fundamentally important to a restorative justice model. It would have to be a simple and straightforward process. The application would be a one-pager. In the paper we will be providing to you we actually have a sample application form of one page: name, school attended, how many years—that sort of thing. The government has the bulk of the school records and will be able to verify that data.

We refer to the compensation levels proposed by the Assembly of First Nations in their paper: $10,000 for simply having attended, and then $3,000 a year for every year of attendance at a residential school. Frankly we think that's a bit low, but that's what the AFN has recommended, and it would be a workable solution.

There should be a review committee. The review committee would have any final decisions. It would involve different panellists from different constituencies that are involved in this area, particularly where it would be difficult to verify, if the school records have been lost, to ensure that people who actually were residents at the residential schools receive the reconciliation payment.

As I said before, it would be payable to all survivors as of January 7, 1998. We also believe there should be free legal advice provided to the survivors, to the tune of about $500, so that they can understand that by accepting the payment they would be signing a release that would waive any actions for similar harms that they could claim down the road. We also believe that much like the case with the hepatitis C settlement, there should be settlement negotiations with the lawyers of the survivors who have initiated class action claims, for those outstanding legal fees.

A lot of what's driven the ADR process has been these people who have decided to go to court and relive these actions, and their counsel who have taken these matters forward on their behalf. The reconciliation payment should not be reduced by the legal fees they may or may not owe their counsel at this point. We think it should be a fast process—within five years—much like the Japanese Canadian model, and that the government should be liable for 100%.

The second pillar is that we have a few key reforms we think should be made to the ADR process: streamline the 40-page application form to only essential information; legal aid should be provided to the applicants rather than to the government-paid form-filler helpers; the application should proceed very quickly to the adjudication office and shouldn't sit in the department's office for very long. I think that's one of the causes of the delay.

 (1215)

Finally, there should be a truth and reconciliation process that goes beyond the national plan the minister laid out. There should be a reconciliation fund, and there really needs to be a public process that educates and opens the shutters on this horrible part of our history, so that Canadians actually understand what the residential schools were intended for and actually understand what the results of that caused. Part of the ongoing systemic problems in aboriginal communities is the direct result of this government policy that eradicated culture and family institutions and has left so many communities in the situation they are in today.

Thank you.


The Chair: Thank you very much.

We will now go to National Chief Phil Fontaine.

Welcome to the committee.


Chief Phil Fontaine (National Chief, Assembly of First Nations): Thank you, Madam Chair, committee members.

I will watch the clock very carefully. I might go over a few seconds, but I'll try to limit my opening statement to the ten minutes we've been allotted.

I'm the national chief for the Assembly of First Nations. I am saddened to be here again finding myself pleading with the Canadian government to fulfill its legal and moral obligations to first nations people. Why is this necessary, when we all know that so many lives were irreparably broken from this terrible travesty called the residential schools legacy?

My grandmother entered a residential industrial school in 1878, my father in 1909, my mother in 1919, my brothers and sisters starting in 1938. This is not a new issue for me or my family, and certainly not for the people I represent. My very strong message to all of you here, and I convey this in the most respectful manner possible, is that this matter must be resolved now—fairly, honourably, and with finality.

I have been given a mandate from the chiefs of the first nations of Canada to resolve the residential schools tragedy. I speak for first nations; I speak for all of the first nations students who ever attended a residential school. I will not rest until I have accomplished that goal. There is nothing more important for the relationship between our people and Canada than the resolution of this problem.

Many of the former residential school students have died over the years without justice and reconciliation—20,000 since 1991. The rest of us are still waiting--waiting for the Government of Canada to come to grips with the worst human rights violation in this country's history; waiting for it to do the honourable thing, the right thing, the decent thing; waiting for Canada to clean up its shameful past and begin to travel down the long road towards reconciliation with the first peoples; waiting for Canada to stop hiding behind phony arguments, denials, and unconscionable delays, allowing more and more people to die empty-handed, without the redress and healing they deserve and are owed.

For ten years I lived through the residential school experience. I know well what my brothers and sisters, our mother and father, my aunts and uncles, my cousins and friends lived through. I know what over 150,000 of the people I represent lived through, and I resent the need for us to tell our heart-wrenching stories over and over again in order to convince you of their truth. I resent being told that Canada can't afford to pay the survivors the compensation we are owed.

As national chief, I represent the people who have occupied this land from time immemorial. These are the same people who were targeted by Canada's residential school policy. The policy was designed to solve the Indian problem by removing us from our homes and families to prevent us from learning about our culture, our languages, and our fundamental connection to the land. Canada set out to destroy our connection to the past so that we could have no future.

Over the past week you have heard many testimonies. You heard from Flora Merrick, Alfred Beaver, Ted Quewezance, Bobby Joseph, and others. These courageous, beautiful people told you their stories, stories that are not easy to listen to, stories about awful things, about unspeakable humiliations and cruelties endured in residential schools. They were sent to these schools in the name of Canada and Canadians. There was no choice; the Indian Act told their parents they would go to jail if they refused to send their children to these schools.

The witnesses also told you about their attempts to seek redress from Canada for the wrongs that were done to them through the ADR process. You heard that this ADR process is not only failing to compensate them fairly but is also victimizing them once again by its insulting assumptions, its inequalities.

 (1220)

We aren't the only ones who have said that the ADR process will never achieve fair and just compensation and that it is failing the residential school students. The Ontario Court of Appeal, in its unanimous decision to certify Cloud, said the very same thing as we've been saying for months and months--that it will never achieve fair and just compensation; it will never achieve reconciliation for our people. And that, in itself, is tragic.

We are presenting another alternative. It is a workable, practical, and fair alternative, whose goal is reconciliation. You should all have a copy of this report. If you don't have a copy, please let us know, and we will see you get one.

You will see in our report that we are in agreement with Canada that an alternative must be found to fighting in the courts. Former students want and deserve a real alternative to litigation, an alternative that will treat them justly and fairly and promote reconciliation and healing. You cannot achieve reconciliation and healing through fights in the courts.

We held a national conference at the University of Calgary last year to consult with former students, government, churches, and independent experts on the topic of whether the government's ADR plan could achieve reconciliation. The overwhelming conclusion of the conference was that the ADR, as it is, will never achieve reconciliation. We all agreed, around the table, that the process available to the former students is deeply flawed; it is broken.

So when I went to the government, the most senior representatives, and offered them our help in fixing what was broken, they accepted this offer. That is why we ended up as we did, in working through this process to determine a better alternative. That was the understanding we had reached in Calgary--that the Assembly of First Nations would come forward with an alternative to the current system, something better, fairer, and more just. It wasn't out of some charitable gesture on the part of the government; the government representatives present at the conference understood this process was too deeply flawed.

I would like to provide you with a brief overview--and I'm checking the time here--of the current ADR process, to show you what some of the problems are, and how our approach would correct them.

First, under the government ADR, no compensation is awarded for loss of language and culture, or for the loss of family life. We believe it is essential that compensation be awarded for those losses in the form of a lump-sum payment to all of those who attended these schools. After all, the very reason the schools were set up in the first place was to destroy our languages, culture, and family ties. This caused the most anguish and hurt us all. It is what caused us to impose this hurt on our children and our grandchildren. Failure to compensate for these wrongs would effectively condone them. This is intolerable to us, and it should be to you as well.

Second, under the government ADR, claimants are treated unequally. If their abuse occurred in a Catholic school, they get only 70% of the compensation due them. In addition to this unequal treatment, there's another inequality based on geography. Awards are higher if the abuse occurred in British Columbia, the Yukon, or Ontario. In these provinces, the awards are 25% higher than those in any of the other provinces. So if you combine both these inequities and take the example of the student who is at the top of the scale for the worst possible abuse, and that student was abused by an Anglican in British Columbia, the Yukon, or Ontario, he or she would get more than a student who endured exactly the same abuse inflicted by a Catholic abuser in Manitoba. In our plan, we insist everyone be treated equally; everyone would receive 100% of what is coming to them, and there would be no difference in compensation.

Third, the government's ADR plan shortchanges the victims of sexual abuse, when you compare their awards against what they could get if they went to court. Court awards for sexual abuse, on average, are $30,000 more than what the ADR plan awards for the same, or similar, abuse. Why? Because under the ADR plan, the abusive act is weighed three times more heavily than the consequences of the abuse. Under our plan we weigh the lifelong consequences much more heavily than the act of abuse, and in so doing, the awards reach court levels.

 (1225)

Fourth, under the ADR plan there's no provision to expedite compensation payment for the sick and elderly. Some elderly and sick claimants are waiting up to 18 months or more to receive compensation. Under our plan we would require that the elderly and sick get their compensation quickly.

Fifth, the ADR process at its current rate will take anywhere from 30 years to 53 years to complete. Former students are now dying at the rate of at least four a day. In our plan we have set a five-year time limit for the payment of all claims. In addition, we would require lump sum payments to be made to the immediate families of the deceased, thereby removing any incentive or reward for further delay.

Sixth, the ADR plan arbitrarily denies compensation based on the occupation of the abuser or the place where the abuse took place. What this means simply is that if a person was on the premises of the residential school for reasons other than contact with children—a gardener, for example, or as we used to call him, the “farmer”—and this person abused a child, the government denies liability because they say the gardener's or farmer's purpose for being there had nothing to do with children. What difference does it make if the abuse took place in the tool shed or in the dormitory? For the victim of abuse in these cases—helpless, defenceless children with no place to hide—the pain is the same. A fist in the face is a fist in the face. A rape is a rape.

For the government to hide behind technical arguments to defeat a former student's claim is shameful. These kinds of distinctions are meaningless in a reconciliation framework. They only are meaningful in an adversarial one. The government must choose.

Seventh, the ADR plan only compensates for physical punishment that exceeded the standards of the day. When Flora Merrick ran away from school because she was denied the right to attend her own mother's funeral, she was beaten on her body and arms until she was black and blue and was then locked in a small dark room for two weeks. The government lawyers would deny her even a penny of compensation for this abuse. They say in the appeal of her measly $1,200 award that the punishment she received did not exceed the standards of the day. They also deny her any compensation for extreme emotional suffering when she was forbidden to attend her mother's funeral, because the ADR plan does not compensate for that kind of harm.

Let me ask you, then, quite simply, whose standards are the standards of the day, compared to what? The low standards of the residential school authorities were never our standards or our parents' standards. The hypocrisy of this aspect of the ADR is breathtaking. The government is acting as a judge and jury.

In our plan, we would compensate all those who were abused as a result of their attendance at residential school, including severe emotional abuse. The standards of today would be the appropriate standard upon which the behaviour would be judged.

I have a few more, but what I'm going to do since I believe you all have a copy of my presentation.... I could make that available. I want to conclude my remarks so that we can get on with the questions.

As you can see, I'm having a very difficult time presenting to you here. I'm usually a lot clearer and hopefully a little more articulate than I've managed to be this morning. I apologize to all of you that I am in the state that I am in.

I didn't come here to try to embarrass anyone, to be disrespectful to a single person. I'm here because I believe that we, all of us working together, can achieve justice and fairness, healing and reconciliation for all of those who suffered harm at these schools. That's why we're here. We're not here to punish anyone. We're not here to inflict harm on anyone. We are here because we believe that Canada will do what is right for our people.

We are not talking about 13,000 claimants, as was continuously hammered to this committee. We are talking about those who are alive today: 87,000. At one point, we had 150,000 students. That's how many attended these schools. Today there are 87,000 left. We are not only talking about 13,000 claimants; we are talking about a much higher number.

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When we talk about fair and just compensation, when we talk about healing and reconciliation—this paradigm shift that must occur between this rigid tort approach, this insurance claim approach, to one of reconciliation—we are talking about healing and reconciliation for all of those people.

I will conclude here. Our model will prove to be the one in which Canada and Canadians can be proud. It will enhance Canada's reputation as a world leader of human rights, while at the same time increase the stature and respect for first peoples at home and abroad. It would also set an international standard and methodology for dealing with mass violations of human rights. Finally, it will put behind us, in an honourable way, the most disgraceful, harmful, racist experiment ever conducted in our history.

Thank you.