Judge reserves decision on motion to extend Indian day school claims deadline

Indian day school survivors who haven't claimed compensation under a national class-action settlement will have to wait a little longer to learn if they'll ever get the chance.

Federal Court Justice Sébastien Grammond reserved his decision Tuesday after a two-day hearing in Ottawa on whether to extend the claims deadline, given the impact of the COVID-19 pandemic and alleged deficiencies in the process.

Audrey Hill, a day school survivor from Six Nations of the Grand River in southern Ontario, said the pandemic magnified things like intergenerational trauma, addiction, homelessness and infrastructure deficits, meaning too many people were left out.

"We're not dealing with just day school," she told CBC News after the hearing.

"We're dealing with the effects of Indian residential school, genocide before that. Those are generations."

Hill, 69, along with the Six Nations elected band council filed the motion to extend the deadline in December 2022, alleging a rushed process filled with barriers and lacking culturally sensitive support.

The federal Indian day school and federal day school system was an attempt to assimilate Indigenous children by removing them from their languages and culture. The institutions were often run by religious institutions and some students faced physical, sexual and emotional abuse. Nearly 700 Indian day schools operated across Canada between 1863 and 2000.

In 2019, the Canadian government and survivors settled out of court for $1.27 billion in individual compensation payments and $200 million for a legacy fund. Survivors were eligible for between $10,000 and $200,000 depending on the severity of the harms suffered.

Roughly 185,000 people applied for compensation between Jan. 13, 2020 and July 13, 2022, when the claims process officially closed, with a six-month period to seek an extension expiring on Jan. 13, 2023. It is unknown how many were eligible but didn't apply.

Hill and Six Nations are seeking an extension for claims until December 2025. Both the Canadian government and class counsel for survivors oppose the move on technical and procedural grounds.

Lawyers for Canada say settlement wording must be obeyed

Justice Canada lawyers Travis Henderson and Sarah-Dawn Norris argued Hill and Six Nations aren't lead plaintiffs and lack legal standing to press the motion.

They said the deadline was explicitly, unambiguously part of the settlement's wording, which the court approved and therefore must obey. Nor did the pandemic compromise the notification process, they argued.

The claims process provided access to justice for almost 200,000 people, but some, for various reasons, will never file claims, Henderson told the judge.

"This is tragic, but it's true," he said.

"The tragic reality is that pain and trauma will prevent some survivors from ever coming forward."

The settlement must be interpreted strictly as a private contract, even though it references reconciliation as one of its goals, he continued.

His opponents jumped on that, asking if the word reconciliation was included in the settlement purely as lip service and window dressing, not a firm commitment.

The settlement should be interpreted more like a treaty, a nation-to-nation agreement, in light of its reconciliatory aims,  lawyers for Hill and the Six Nations council countered.

Six Nations Elected Chief Mark Hill told CBC News that Canada's arguments were frustrating to hear and not at all in the reconciliatory spirit.

"It's just a slap in the face," he said.

"We literally did everything we could because we knew there were so many people left out."

Mark Hill, no relation to Audrey, estimated the number of Six Nations members who are eligible but haven't filed a claim is in the thousands. Six Nations has about 28,000 members, of whom an estimated 15,000 are class members.

The Haudenosaunee community had 18 day schools, more than any other First Nations community in the country, and it was hit hard by the pandemic, Mark Hill said.

"People were left trying to put food on the table and literally keep their families safe," he said.

"They were not thinking about an application."

National chief's meeting request declined

First Nations groups all over the country have either backed the motion or expressed concerns about the deadline, including the Federation of Sovereign Indigenous Nations, Anishinabek Nation, Chiefs of Ontario, Assembly of Manitoba Chiefs and others.

Assembly of First Nations (AFN) National Chief RoseAnne Archibald wrote class counsel on June 13, 2022 expressing those concerns and asking for a meeting with the AFN's legal department. Lead counsel Cam Cameron of Gowling WLG wrote back turning the offer down, according to letters filed in court.

"Although we respectfully decline your meeting request with the AFN Legal Department, it is our hope that the AFN (and others) will communicate the timelines within their communities to ensure that claimants may receive their compensation," Cameron replied in a letter.