Day scholars class action certified

Court action launched by the Tk'emlúps te Secwépemc and Shishalh Indian Bands on behalf of their own day scholars will have an impact on all Aboriginal people who were day scholars at Indian residential schools from 1920 to 1997.

“It’s been a rough journey but it was amazing when I got the call from our legal team that we’d been certified. I was very overwhelmed,” said Jo-Anne Gottfriedson, day scholar legal action coordinator for Tk'emlúps te Secwépemc Indian Band.

On June 3, the Federal Court in Vancouver certified a class action lawsuit that allows the bands to move forward in seeking compensation from the federal government for three different classes: survivor class, descendant class and band class. The lawsuit represents all First Nations, Metis and Inuit who attended Indian residential schools as day scholars.

“Now we’re going to be dealing with those devastating impacts in a legal procedure,” said Gottfriedson. “Every residential school that had day scholars is in that class action.”

Chiefs of the Tk'emlúps te Secwépemc and Shishalh Indian Bands began talking in December 2010 and decided to pursue compensation for their day scholars together. On Aug. 15, 2012, they filed a class action in federal court.

“The whole case is predicated on the loss of language and culture,” said Gottfriedson, who was a day scholar for seven years at the Kamloops Indian residential school. “Our people have endured a great loss because they attended on a daily basis and they were not any different than the ones who stayed there because they endured the same abuses.”

The Kamloops IRS was the largest Indian residential school in Canada, operating from 1890 to 1978. The Sechelt Indian residential school operated from 1904 to 1975. Between the two schools there is an estimate that more than 300 day scholars are still alive. But that number continues to dwindle, said Gottfriedson, as age and health claim more survivors.

Day scholars did not qualify for the Common Experience Payment under the Indian Residential School Settlement Agreement. All residential school survivors, who were on the school roll of one of 139 recognized Indian residential schools, were eligible to receive $10,000 each through CEP for the first year of attendance and $3,000 for every successive year.

Gottfriedson said the CEP amount is only the starting point for negotiations for the day scholar action.

She is hopeful that other First Nations will join the class action lawsuit and will also financially contribute to the cause. But if they don’t, Gottfriedson says Tk'emlúps te Secwépemc and Shishalh Indian Bands will continue to bankroll the effort.

Gottfriedson says a settlement agreement between the federal government and day scholars does not have to be a lengthy litigation.

“If Canada is willing to sit down and negotiate with us, (that) would be the ideal situation,” she said. She is hopeful that in the spirit of reconciliation this is the route the federal government will take.

While one set of day scholars is further down their path to both recognition and compensation, there is another set of day scholars, who is still looking for both.

Ray Mason, chair for Spirit Wind Canada, represents day scholars who attended schools in church basements or church or government-built institutions in their communities that were not also residential schools. These day scholars do not qualify for representation under the Tk'emlúps te Secwépemc and Shishalh Indian Bands class action law suit.

Mason was a day scholar for a year, attending a school on Peguis First Nation.

“I got strapped. I don’t know how many times in a day because I couldn’t speak English,” he said. He was also strapped and further abused at the three residential schools he attended.

“B.C. being certified will help our cause,” he said. “In a sense, (the court) is saying, ‘Okay, we abused day scholars.’ It will help us in a similar fashion because we are day scholars as well.”

In April 2009, Spirit Wind filed the National McLean Day School Action in a Manitoba Court of Queen’s Bench

“We are at the point where our research is almost complete. We’re one step away from certification,” said Mason, who added they are still gathering names of day scholars who fit in this category and are up to 11,000. “We feel that we have a very strong case and we feel that Canada owes us something.”

Financing the effort has been a struggle, he says. Spirit Wind is applying for its charitable number so it can solicit donations.

Mason is not optimistic about the federal government’s desire to make amends to day scholars.

“They’re trying to avoid anything to do with resolving this dark period in the history of Canada because of the fact that they know they’re going to have to come up with a large problem, a very expensive problem,” said Mason. “I don’t see Canada readily knocking on our doors and saying, ‘Come on, let’s get this over with.’… But they shouldn’t give us such a hard time because we’re going to end up winning anyway.”

Day scholars were not included in the apology to Indian residential school survivors delivered by Prime Minister Stephen Harper in 2008. In the summary of the final report recently released by the Truth and Reconciliation Commission, day scholars received a passing mention. However, day scholars were invited to tell their stories at TRC events over the past six years.