Angela Bespflug and Janelle O’Connor support call for culturally sensitive claims process in class actions for wrongs against Indigenous people.
May 25, 2020
Angela Bespflug and Janelle O’Connor recently provided an overview for The Lawyer’s Daily of The National Truth and Reconciliation Commission (NTRC) report, Lessons Learned: Survivors Perspectives. The NTRC report reviewed the Indian Residential Schools Settlement process from the survivor perspective. A key finding in the report is that a western-centric settlement claims process can re-traumatize survivors and undermine the key goals of redress and reconciliation. The lesson to be learned by counsel in class actions involving collective wrongs against Indigenous peoples, is the critical importance of designing future settlements so that the claims process is culturally sensitive and prioritizes Indigenous law and cultural practices to promote healing.
The NTRC report calls for a survivor-focused, trauma-informed approach (including aftercare) as essential in future settlements for institutional abuse. Angela and Janelle note the approach implemented in the Indian day schools class action settlement (McLean v. Canada 2019 FC 1075) offers a partial solution. The survivors of Indian day schools, many of whom were subjected to verbal, physical, and sexual abuse while attending school, number over 100,000. The claims process is relatively simple and avoids the need for oral hearings. The process seeks to ensure that survivors are not re-traumatized and avoids delays that can result when thousands of oral hearings are required. The day schools process also eliminates a “common experience payment” in favour of an acts-based approach that provides five levels of compensation and a guarantee that compensation will not be prorated if the settlement is over-subscribed. In addition, and similar to the Sixties Scoop class action, the Indian day schools settlement establishes a Legacy Fund to support commemoration events, healing projects, and the restoration of Indigenous languages and cultures. It is hoped that this survivor-focused approach will better support truth, healing, and reconciliation.
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Disclaimer: This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.”