Residential school agreement receives approval from courts

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Assembly of First Nations (AFN) Nation Chief Phil Fontaine said the fight for an apology is on hold until the next, and last, milestone on the road to a final residential schools settlement agreement has been passed.

On Dec. 15 Ontario Superior Court Justice Warren Winkler signed off on the agreement that would eventually see former residential school students receive a common experience payment (CEP) of $10,000, plus $3,000 for each year they spent in the schools.

The agreement-in-principle between the AFN and the government of Canada was signed on Nov. 21, 2005, in the last days of the Paul Martin Liberal government and was subsequently approved by the Stephen Harper government on May 10.

Justice Winkler's task was to ensure that the parties engaged in lawsuits involving their residential school experiences were well served by this agreement. Some 15,000 individual lawsuits and 21 class action lawsuits will be ended when the agreement comes into force.

Fontaine, who is widely credited with being the driving force behind this landmark compensation agreement, acknowledged that the wheels of the justice system turn slowly. But he said the end is now in sight.

Winkler has given the lawyers 60 days to work out a few minor kinks in the process, but he has signed off on the agreement, which will allow the next and final step to begin.

Prior to Winkler's decision only two steps remained: the courts had to certify the agreement as "fair and just" and the survivors had to opt in.

"It'll come back to the survivors and they will have six months to consider the agreement," said Fontaine. "So we are entering a very important phase in the settlement process.

"What we are doing here at the AFN is organizing information sessions and workshops with survivors and frontline workers who interact on a daily basis with survivors, so that everyone has the right information about the settlement agreement."

Government officials have estimated that having all the lawsuits go through the courts would have taken about 53 years.

"We are just as anxious as anyone to have this agreement finalized. Many of our survivors are Elders and we're losing Elders at the rate of four a day and this is a conservative number. So we're moving as fast as we can," Fontaine said. "Is it fast enough? Of course not, we know that."

"But it's a process that needs to be concluded and you have to keep in mind that justice takes time. But at the end of the day I think that we will make thousands upon thousands of people happy with this settlement agreement. I'm able to say that because I've encountered so many survivors who have received the $8,000 advanced payment and boy, you haven't seen happy people until you've seen those folks," Phil Fontaine said.

But the question of an apology from the government has become a bit of a sticking point.

Fontaine said talks had been progressing well with the former government for a "full apology in a significant public ceremony," but those talks have stalled under the Harper government.

"We were told that the government didn't have any appetite for this apology, that it was difficult enough getting the government to accept the agreement as negotiated. So we took the position that we wouldn't press this but that we would bring it forward at an appropriate point.

"So we're waiting for the survivors to say 'yes' to the agreement and we expect that'll be the outcome," he said.

"We put this against a number of precedents. The Japanese Canadians received an apology from Prime Minister [Brian] Mulroney in 1988 for their internment during the Second World War.

Hep-C victims received an apology from the Canadian government for their treatment. More recently, the Chinese Canadians received an apology from this government for the Chinese head tax. So we take the position that we're not any different from those folks," Fontaine said.

"In fact, we've suffered, we've suffered greatly and the statement of reconciliation o 1998 is not seen as a full apology by the Canadian government. Therefore one of the outstanding issues will be a full apology once the survivors have given their approval of the settlement agreement."

The Harper government has based a lot of its policy on the concept of "equal treatment," an approach that has on occasion appeared unfriendly-even opposed-to the concept of Aboriginal rights.

Fontaine agreed the fact that other groups have received apologies when none appears forthcoming for residential school survivors seems to be a case of unequal treatment.

"We see it as such, at least at the moment." Fontaine said. "But I give them the benefit of the doubt. I was told that this was a difficult matter for the government, but at the end of the day cabinet gave us their approval. So we believe that in an appropriate time we will be able to secure the kind of apology that survivors have been asking for."

The settlement includes a common experience payment that averages $24,000 to each of the nearly 80,000 living residential school attendees and provides an improved out-of-court process for victims seeking compensation for more serious abuse.

"Today's court ratifications are a victory for the tens of thousands of residential school system survivors," said Fontaine.

"It means that we are on track for payments to be made out sooner than we expected." Payments of the CEP could now begin as early as this summer, he added.

Work on one other important part of the agreement will also soon begin.

"The courts certification also means the Truth and Reconciliation Commission will be starting its work next summer," said Fontaine.

"The Truth and Reconciliation Commission will ensure that all Canadians will understand the significance of the serious harm done to our people by the residential schools. First Nations are determined to send the message to the world that never again will such a racist agenda be tolerated in Canada."