Survivor IAP hearing room closed as work on residential school agreement winds down

The last of two hearing rooms in which Indian residential school survivors told their stories of horrific abuse suffered at the schools as part of the Independent Assessment Process closed in ceremony on Aug. 7.

The Vancouver IAP hearing room opened in 2009 and was designed to be a safe, sensitive place with light from numerous windows, Indigenous art on the walls, and the availability of artifacts and sacred objects. A breakout room allowed survivors to meet with family members, resolution health support workers or the Elder they brought with them. About 500 hearings were held in the facility.

“It’s important to mark the end of this part of the reconciliation journey,” said Dan Shapiro, who has served as chief adjudicator for the IAP for the past six years. “It doesn’t mark the end of the government’s obligations toward Indigenous people from their attendance at residential school, but it is an important milestone to recognize and that’s what we’re doing.”

Previously Shapiro spent six years as deputy chief adjudicator travelling throughout Canada hearing the stories of survivors, some of which were told for the very first time and some of which Shapiro heard in the Vancouver IAP room.

The closure ceremony included survivors who shared their experiences in that very room.

“It’s just a way to acknowledge the people who came through this place and shared their experiences and their tears and their anger and their joys with our adjudicators and not let the occasion go without marking it,” Shapiro said.

The closure of this room follows three years after the other dedicated IAP hearing room in Winnipeg was closed. It is one more indication that the work of the IAP adjudication secretariat, set up in 2007 under the Indian Residential Schools Settlement Agreement, is winding down.

There are less than 40 claims left to process. However, that number only includes one claim from Kivalliq Hall in Rankin Inlet, Nunavut, which was added in July 2018 to the IRSSA’s list of approved schools. After a lengthy legal battle, former students of Kivalliq Hall who attended between 1985 and 1997 became eligible for compensation.

“This is the last potential school that could come to us,” said Shapiro.

The IRSSA set out a process by which residential school survivors or organizations could apply to have schools included on the approved list. The BC Supreme Court set July 2015 as the deadline for applications for adding new schools.

“There have been a number of applications to add residential schools over the last number of years. A majority of them have been defeated in courts,” said Stuart Wuttke, legal counsel for the Assembly of First Nations. He was speaking to chiefs and proxies gathered in Fredericton July 25 as they discussed the IAP.

According to Crown-Indigenous Relations figures, application was made for 1,531 distinct institutions to be added. The government agreed to add seven, while the court added three more, including Kivalliq Hall.

The difficulty in adding schools to the approved list wasn’t the only concern voiced by chiefs.

“Survivor of the electric chair as well, and so on,” said Inniniwuk Nation of Fort Albany Chief Leo Metatawabin, who attended St. Anne Residential School. The federal government withheld documents about St. Anne, which survivors fought in court to have released. Some felt those documents could have had an impact on IAP settlements that took place from 2007 to 2014 and which didn’t include access to those documents.

However, Shapiro is not convinced.

“It’s not obvious that anyone was prejudiced by Canada’s late document disclosure,” he said, adding St. Anne’s claims were resolved with a higher success rate than other claims across the country.

Also of concern to IAP claimants is the recent decision in JW v. Canada, in which adjudicators originally required the claimant to prove the sexual intent of the nun that abused him. The Supreme Court of Canada ruled this past April that such proof was not necessary and went against the intent of the IRSSA.

“JW himself was able to get compensation, but that didn’t solve problems with respect to all those other claimants that did not receive an award based on the adjudicator’s wrong application of the test. (AFN has) advocated for payments to those individuals,” said Wuttke, pointing out that National Chief Perry Bellegarde has written Crown-Indigenous Relations Minister Carolyn Bennett.

Revisiting claims, says Shapiro, is not within his secretariat’s powers.

“The remedy is not before us. The courts have made it clear that they alone enjoy the right to re-open decisions, not adjudicators,” he said

According to figures from the adjudication secretariat, as of June 30 more than 99.9 per cent of the 38,258 applications for compensation under the IAP had been resolved. More than 89 per cent of claimants received compensation, with Canada paying out over $3.18 billion. The AFN says the average payout is $111,000.

The Mohawks of Bay of Quinte Chief R. Donald Maracle expressed concern that the costs to lawyers didn’t seem to be available.

“There’s been lots of media reports about lawyers that were handling these files and overcharged their clients,” said Maracle.

Shapiro said that the $3.18 billion figure paid out in compensation included the 15 per cent government-approved payment to lawyers. However, he noted, in some instances adjudicators may have approved topping-up the 15 per cent payment or claimants may have had to cover out-of-pocket expenses.

Between now and March 31, 2021, the date the adjudication secretariat is expected to close its doors, subject to court approval, will be a busy time.

Hearings will take place for Kivalliq Hall survivors, who have until Jan. 25, 2020, to file IAP applications.

“We will go to people and whatever is a safe and comfortable location for the hearing, within reason, we will be there,” said Shapiro, who is confident all adjudication work will be concluded by December 2020.

The adjudication secretariat will also be getting ready to hand over its records to a records agent.

Survivors have until Sept. 19, 2027, to decide what to do with their records. No decision will result in their records being destroyed. Survivors may choose to get a copy of their records to keep for themselves, to share with their local archive, to share with the National Centre for Truth and Reconciliation (NCTR) now or at a later date, or to burn in ceremony. They may choose to preserve their records at the NCTR for either restricted (with the removal of personal information) or open access. All information that identifies other people in the survivor’s records would be removed.

To date, 14 claimants have signed consent forms to transfer retained documents to the NCTR, with five having been transferred already. The remaining documents are being redacted (personal information removed) in order to be transferred. Three claimants have elected to place their documents at the NCTR with open access, while nine have chosen restricted access.  Another two claimants have selected a mix of open and restricted, depending on the documents.

Shapiro says he is not surprised the number is so low “when you look at how deeply personal these experiences are.”

He recalls survivors getting physically sick before sharing their stories.

“The fact that they may not want to do that today does not mean that will be the case when they’ve had a cooling off period, they’ve had time to reflect and they may be feeling in an emotionally stronger place and they will have the right to do that at a later time. So the numbers will undoubtedly increase over time,” he said.