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Review finds fewer than 200 residential-school settlement claims affected by ‘administrative split’

Minister of Indigenous and Northern Affairs Carolyn Bennett is shown in her office in Gatineau, Que., on Tuesday, Aug. 30, 2016.

Justin Tang/The Canadian Press

A lengthy review by Ottawa of people abused as children at Canada's infamous Indian residential schools has found that fewer than 200 claims were dismissed or reduced after federal lawyers successfully argued that some of the institutions ceased being subject to a massive settlement deal.

But the year-long analysis did not look at how many former students of the church-run schools withdrew their claims after being convinced that the legal argument, known as the administrative split, left them with no chance of receiving an award under the Indian Residential Schools settlement agreement.

Nor has the government explicitly acknowledged that those who were refused money as a result of the administrative-split argument now deserve redress.

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The Indigenous Affairs Department sent a letter late last week to members of the committee that administers the agreement – the largest class action in Canadian history – to advise them that the "urgent" review ordered last February by Minister Carolyn Bennett into the administrative split had been completed. That letter said department officials have determined that former students at 22 of the 139 schools listed in the settlement were affected by the argument and that "fewer than 200 claims" were impacted.

Dr. Bennett will receive recommendations from her department shortly about how to proceed now that the numbers are known.

"Our government is committed to ensuring justice for the victims of this dark chapter in our history. We believe that all those entitled to compensation should receive it," she said in an e-mail on Thursday. "An announcement on the resolution to this matter will be coming in the near future."

The residential schools, which were combinations of educational institutions and boarding facilities, were first established in the 1800s. In 1968, the government began splitting the operation of some of the institutions, running the school separately to the residence. That was known as the administrative split.

The settlement agreement was implemented in 2007 to compensate the many indigenous children who were torn from their families to attend the institutions. It established an Independent Assessment Process (IAP) to award additional damages to those who suffered actual physical or sexual abuse at the schools. For three years, the issue of the administrative split was not raised at IAP hearings.

Then, in late 2010, Justice Department lawyers began arguing – often successfully – that schools listed in the settlement agreement ceased to be residential schools at the time the administrative split took place and that students who were abused at one of the institutions after the split should be disqualified from receiving compensation.

In 2014, Daniel Shapiro, the chief adjudicator of the IAP, wrote a letter in which he said it would not surprise him if the number of cases affected by the administrative split exceeded a thousand, many more than the number identified by the review conducted this past year.

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But an Indigenous Affairs official who spoke on background Thursday said the review did not take into account those who withdrew their claim during the preadjudication phase of the process. Mr. Shapiro said in his 2014 letter that government lawyers actively asserted the inadmissibility of claims affected by the administrative split at those preadjudication hearings.

"The whole thing about the numbers needs to be scrutinized," said Kathleen Mahoney, a lawyer representing some of claimants caught up in the administrative split. "How many people didn't file because their lawyers told them there's no point in it?"

The Indigenous Affairs official said the review took as long as it did because department employees manually analyzed 9,000 IAP claims to determine the number impacted by the administrative split.

Forty-seven are still in the adjudication process, she said. The Justice Department lawyers are no longer making the administrative-split argument and those claims have been put on hold until the government decides what to do about them.

Charlie Angus, the former NDP critic for indigenous affairs, said he is disturbed by the fact that the government, which is a defendant in the residential-schools class action and has used legal moves to deny compensation, now says it is stepping in to fix the situation.

"Who's to trust them?" Mr. Angus asked. "This process has been a kangaroo court because it has been run by the defendant in the interests of the defendant."

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