The Indian Residential Schools Settlement Agreement is nearing its end after paying out billions in compensation, but indigenous leaders say there are so many gaps that left so many people uncompensated for their suffering that the deal must be reviewed, then rewritten or replaced.
The executive committee of the Assembly of First Nations will be asked at a meeting in Ottawa this week to consider what to do about the deal, which was struck nine years ago between former students, the government and the churches that ran the schools where abuse was rampant.
"Ideally you want all the parties to agree that we should review it. Or you can have AFN, as the founding party, to request it … but there definitely needs to be an assessment done," said Bill Erasmus, the national chief of the Dene who also represents the Northwest Territories on the AFN executive and who is in charge of the residential schools file for the native organization.
"It's time for a new agreement. We had practice on the first one. Let's do another. Let's tighten it up," Mr. Erasmus told The Globe and Mail. "We know the ups and the downs and the outs and the ins. So we can say, 'Hey, let's do this right.'"
The agreement is the largest class-action settlement in Canadian history.
It included Canada's apology for the treatment of those who attended the schools and established a Truth and Reconciliation Commission, which spent years investigating abuse at the institutions that indigenous children were forced to attend. It offered a common experience payment to anyone who spent time at a residential school, regardless of whether they were abused or not, and created the Independent Assessment Process (IAP) to determine how much those who suffered actual physical or sexual trauma were owed beyond that base amount.
The secretariat that oversees the IAP has resolved more than 34,000 claims and awarded $3.004-billion to those who were mistreated. Its adjudicators expect to complete the vast majority of first hearings with claimants this spring, which would signal that the agreement is reaching its final stages.
But there are many people who attended the schools who are unsatisfied with the way the deal has played out and with the way it has been interpreted both by the government and IAP adjudicators.
There were those who were not compensated as a result of a legal argument employed by Justice Department lawyers called the "administrative split," which said some of the schools listed in the agreement ceased to be residential schools in the fifties or sixties, when the churches handed teaching responsibilities over to the government.
There have been instances in which government lawyers at IAP hearings suppressed evidence that would have substantiated the stories of former students who say they were unfairly denied compensation as a result.
There are also former students who were not included in the agreement because they went to school in Newfoundland and Labrador before that province joined Confederation in 1949. Their case is currently before the courts.
Day scholars who were not compensated because they went home to their families in the evenings after spending their days at the notorious schools have also launched a lawsuit.
There are Métis who say their schools were not part of the agreement but should have been. Some indigenous leaders are angry that the Catholic Church was released from its obligations under the deal after promising to make "best efforts" to fundraise $25-million for healing and reconciliation but collected just $3.7-million.
And there are hundreds of institutions that were not part of the agreement – provincially run schools, tuberculosis sanatoriums and schools that did not exactly meet the criteria – where former students say they were abused.
"People have been left out," said Bobby Cameron, chief of the Federation of Saskatchewan Indian Nations and Saskatchewan's representative on the AFN executive committee.
Mr. Cameron is also calling for a review of the settlement agreement. "I have spoken to and communicated with many survivors who say this: 'We are not satisfied, we are not happy with how we were treated during the process because of the actions of some unscrupulous lawyers, jurisdictional issues, incorrect deadline dates, administrative flaws and other inconsistencies,'" he said. "We have to know where things went wrong … and why our people were put through a process that was meant to bring healing but caused more damage in many cases."
The First Nations leaders say they hope that the Liberal government, which has already committed billions of new money to address indigenous issues and which has repeatedly expressed interest in striking a new relationship with Canada's First Peoples, will be receptive to requests to amending or replacing the agreement.
But Indigenous and Northern Affairs Minister Carolyn Bennett said she does not believe that would be in the best interests of anyone, including survivors.
There are people who have been improperly denied compensation, Dr. Bennett said, but those issues can be remedied through discussion.
"These people were harmed," she said. "We believe that requires negotiation and some appropriate settlement. And I think most people that I've talked to are very reluctant to open up this settlement. We are so close to achieving some sort of justice for those people. To reopen it for all of them would be very disturbing to the people who have already received their settlement."
Phil Fontaine, the former national chief of the AFN whose lobbying of government resulted in the settlement agreement, said he understands why Mr. Erasmus and Mr. Cameron believe that a review is necessary, but he does not think that reopening the agreement or renegotiating a new one will fix the flaws that exist.
"There isn't an agreement anywhere that is perfect and we never suggested this one was," Mr. Fontaine said, but "the agreement represents a significant sum of money. It is the largest settlement in Canadian history, one of the largest of its kind anywhere in the world and it's been good to most."
When there have been problems, including the administrative split, the government has made a commitment to resolve them, he said. "So the challenge then is to try to fix those problems from within the existing framework, and it seems like we are making progress."
But MP Charlie Angus, the NDP's indigenous affairs critic, said the agreement has been seriously flawed from the outset and leaves the odds stacked in favour of the defendants – the government and the churches – and against the school survivors who gave up their right to sue for compensation when they signed on to it.
"There are a lot of problems and justice hasn't been served in many cases," Mr. Angus said. "So either we reopen this in a conciliatory manner and try to figure out how to do it, or people are going to be going back to court case by case to get justice."