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Politics Ottawa to review tactics used to reject residential-school claims

School children stand on the deck of boat near St. Michael's Indian Residential School, Alert Bay, B.C.

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Canada's Indigenous Affairs Minister has told her department to conduct an urgent review of a practice that denied compensation to some indigenous Canadians who were abused at Indian residential schools listed in a settlement agreement with survivors.

"I have asked my department to look into this and we are going to look into it in a very serious manner right now," said Carolyn Bennett, who described the matter as "urgent."

Dr. Bennett's announcement in the House of Commons comes after The Globe and Mail reported Wednesday that Justice officials in the former Tory government used a technicality in the agreement that led to compensation being denied to more than 1,000 abuse victims.

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The residential schools, which were combinations of educational institutions and boarding facilities, were first established in the 1800s as a program of assimilation and were initially run by churches. But, during the 1950s and 1960s, the federal government took over the operation of more than 50 of the schools, leaving only the residences under the control of the religious orders. This technicality is known as the administrative split.

The Indian Residential Schools Settlement Agreement, which was implemented in 2007, offered compensation to former students of the schools for the trauma they experienced. Those who could prove they were actually abused could apply for additional compensation under what is known as the Independent Assessment Process (IAP). And for three years, the issue of the administrative split was not raised at IAP hearings.

Then, in late 2010, Justice Department lawyers began arguing that schools listed in the settlement agreement ceased to be residential schools at the time the administrative split took place.

The lawyers argued that any student who was abused after that point should be disqualified from receiving compensation unless the abuse occurred within the church-run residences.

Many IAP adjudicators agreed and started dismissing claims based on the administrative split.

Phil Fontaine, the former national chief of the Assembly of First Nations, is demanding that the Liberal government reassess the claims and compensate the abuse survivors.

New Democratic MPs stood in the House to demand that the rejected claims be revisited.

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"This travesty was conjured up in the Justice Department and I am asking the minister, as their boss, will she do the right thing?" Charlie Angus, the NDP's indigenous affairs critic, asked Justice Minister Jody Wilson-Raybould, a former member of the AFN executive. "Will she tell this House that those cases will be reopened and that justice will be done?"

Dr. Bennett answered the question in her stead. Justice officials were only working on behalf of the Indian Affairs Department at the time, she said.

When the claims were being dismissed, they were returned to Daniel Shapiro, the chief adjudicator of the IAP, for review.

In April of last year, an Alberta judge tossed out the appeal of a woman whose case had been rejected by the IAP on the basis of the administrative split. Once that decision was rendered, Mr. Shapiro dismissed the other claims affected by the administrative split – a number he estimated in 2014 would exceed 1,000.

One IAP adjudicator who agreed to speak with The Globe on Wednesday on the condition of anonymity, said she believes the number of claims that have been tossed as a result of the administrative split to be between 2,000 and 3,000.

The Alberta case should never have been used as the basis for throwing out other claims, she said, because it involved the unusual situation of a school that had been handed over to the province. In almost every other case of a school that was subject to an administrative split, she said, the federal government maintained control.

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"Now, sometimes the church ran the residence on behalf of Canada," said the adjudicator, "but Canada always paid the bills. So Canada was involved all the way."

The adjudicator said it was clear that some of the Justice officials who urged her to dismiss claims on the basis of the administrative split did not enjoy making the argument. "I have had Canada's reps tell me that they felt really bad about this," she said. "They made it clear that it came from up high."

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