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A group of students and a nun at Cross Lake Indian Residential School in Cross Lake, Man., in February, 1940 (Handout/REUTERS)
A group of students and a nun at Cross Lake Indian Residential School in Cross Lake, Man., in February, 1940 (Handout/REUTERS)

Halt ordered to denying residential-school abuse claims on technicality Add to ...

The man who oversees the process established to compensate people who were abused at one of Canada’s Indian residential schools has put a hold on all undecided claims in which a technical argument called the “administrative split” is being used to deny a payout.

The Globe and Mail reported last week that as many as 3,000 former students who were abused at schools listed in the Indian Residential Schools Settlement Agreement involving the government, the survivors and the churches that ran the institutions have been denied compensation as a result of the legal strategy by Justice Department lawyers.

Indigenous Affairs Minister Carolyn Bennett has asked her department to conduct an “urgent” review to find out why the claims were denied. The government is not speculating about when that investigation will be complete.

Daniel Shapiro, the chief adjudicator of the Independent Assessment Process (IAP), which was created to allow former students who suffered serious physical or sexual abuse to obtain quick redress without going to court, issued a bulletin to all of his adjudicators saying they should not proceed with cases that could be affected.

“As you will read in The Globe and Mail, the minister responsible for Indigenous Affairs and Northern Affairs Canada (INAC) has made a commitment in the House of Commons to have officials conduct an urgent review of the administrative splits,” wrote Mr. Shapiro in the bulletin that was posted Thursday morning on the IAP website. “To this end, while the review is under way, Canada is requesting that any active files that engage in an administrative split be adjourned pending outcome of the review.”

Mr. Shapiro said in an e-mail to The Globe that “the administrative-split issue is a complex legal issue” and his instruction to adjudicators to put the cases on hold was made at “at Canada’s request.”

Claimants who have questions about the administrative split and how it may affect a claim should contact their lawyer, and those who represented themselves should contact their claimant support officer, he said.

The IAP, which is expected to wrap up hearings this spring, has processed more than 37,000 claims from people who say they were abused at the schools but, as of Thursday, 4,070 claims remain outstanding. The government has spent nearly $3-billion in compensation since the process began.

In 2008, a year after the settlement agreement was implemented and hearings under the IAP began, former Conservative prime minister Stephen Harper formally apologized on behalf of Canada to survivors for the way they were treated at the schools.

Two years later, Justice Department lawyers began to argue in IAP hearings that more than 50 of the schools listed in the settlement agreement ceased to be residential schools in the 1950s and 1960s when Ottawa took over the operation of the educational facilities and left the churches responsible for only the dormitories – a move known as the administrative split. Justice lawyers successfully argued that students who were sexually or physically assaulted after that time in any place but the dormitories were not abused at a residential school and were, therefore, not entitled to payment for their suffering.

Claims that were denied were put on hold, some for several years, until one of them was put before a judge of the Alberta Court of Queen’s Bench who, in 2015, upheld the government’s position. After that ruling, Mr. Shapiro dismissed all of the cases involving the administrative split. But lawyers working on behalf of abuse survivors say the facts of the Alberta case were quite different to those in the majority of claims that were thrown out.

One of the IAP adjudicators told The Globe last week that she believes upward of 3,000 claims were dismissed as a result of the administrative split – though Mr. Shapiro earlier estimated the number to be something more than a thousand.

Bill Erasmus, the regional chief for the Northwest Territories at the Assembly of First Nations who handles issues related to residential schools for that group, said Thursday that the government had no legal authority to unilaterally change the terms of the court-approved settlement agreement by deciding what is, and what is not, a residential school.

“If this is all about reconciliation,” said Mr. Erasmus, “then Canada has to give new instructions which talk about the intent of the agreement and the fact that there is a contract in place and we all agreed which schools were going to be included.”

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