Background Statements

Background Document on the Indian Residential Schools Settlement Agreement

May 2006

At its spring meeting, April 28-May 1, 2006, the General Council Executive supported the recommendation brought by the church's Residential Schools Steering Committee and unanimously agreed that The United Church of Canada would become a signatory to the multi-party Indian Residential Schools Settlement Agreement negotiated under the leadership of federal representative the Hon. Frank Iacobucci.

In the past, the United Church has not been willing to enter into a formal agreement with Canada with respect to abuse claims by former students of residential schools. Our reluctance was based on several concerns, raised particularly by Aboriginal members of the United Church, including

• that bilateral agreements with the government did not include the Aboriginal voice and did not necessarily serve the interests of former students
• that it was more faithful for the church to accept its full responsibility and liability with respect to claims rather than to seek the protection of a"cap"
• that the church did not want to commit to "partnering" with Canada in defending claims
• that an agreement focused on abuse claims did not recognize or address the wide range of other harms suffered by many former students of Indian Residential Schools
• that the church should retain its independence as a"prophetic" voice

However, the members and staff of the Residential Schools Steering Committee recommended support of this Settlement Agreement because

• Aboriginal leadership was instrumental in bringing the negotiation process about
• the process included all the parties (the federal government, the Assembly of First Nations and other Aboriginal organizations, the churches, and legal counsel for the former students)
• the agreement recognizes the wide range of harms suffered in the residential schools
• the agreement is focused on resolution rather than defence
• the obligations undertaken by the churches are acceptable to the Aboriginal leadership
• we believe the agreement is in the interests of former students

In our response to abuse claims in general, and in discussions with the other parties to the Settlement Agreement in particular, the representatives of the United Church have borne in mind the six principles that the GCE adopted in the fall of 2003 as those that should guide us in living out our repentance and in any negotiations with the federal government. They are:

• commitment to challenge the ideology of racism and colonialism
• a holistic approach addressing the wide range of harms experienced
• participation of Aboriginal peoples in any process leading to an agreement
• acknowledgement that the impacts of the Indian Residential Schools system are communal and intergenerational
• support of healing initiatives within Aboriginal communities, and the need for healing and education within the non-Aboriginal community
• work toward the goal of right relations between Aboriginal and non-Aboriginal peoples

Theological Reflection

"So when you are offering your gift at the altar, if you remember that your brother or sister has something against you, leave your gift there before the altar and go; first be reconciled to your brother or sister, then come and offer your gift."

Matt. 5:23

In seeking direction from scripture on what it means to take responsibility for harm done, the text above suggests that we must be proactive in setting things right with our brother or sister. As a church, we have been in the process of"remembering" the role that we played in the residential school system and the impact of those schools on our Aboriginal sisters and brothers. As our awareness has grown, so has our obligation to seek out those who have been hurt and to do what is necessary to make things right. Waiting for them to sue us is not sufficient.

Being proactive does not mean being prescriptive. As a faith community, we have participated in the negotiations on the Settlement Agreement remembering our accountability to those who have been harmed. This has involved the incremental steps of learning to be present to those we do not know, learning to listen to what survivors feel and need for healing, and being open to the gifts and leadership of former students in the process of reparation and reconciliation. This continues to be a humbling challenge for a church more accustomed to being the"helper."

We are mindful that Jesus' teaching suggests that reconciliation with our brother or sister is a prerequisite for reconciliation with God. Right relations with God is tied up with, and perhaps dependent on, our willingness to rebuild right relations with our neighbours.

What Is the Background of This Agreement?

On May 30, 2005, the Government of Canada and the Assembly of First Nations (AFN) signed a Political Agreement recognizing"the need to develop a new approach to achieve reconciliation" on the legacy of Indian Residential Schools. Central to that agreement was the appointment of the Hon. Frank Iacobucci as federal representative to negotiate a comprehensive, fair, and final resolution.

Mr. Iacobucci's mandate was"to negotiate with plaintiffs' counsel, and work and consult with the Assembly of First Nations and counsel for the churches, in order to recommend, as soon as feasible, but no later than March 31, 2006, to the Cabinet through the Minister Responsible for Indian Residential Schools Resolution Canada, a settlement package that will address a redress payment for all former students of Indian residential schools, a truth and reconciliation process, community based healing, commemoration, an appropriate ADR process that will address serious abuse, as well as legal fees."

In June 2001, the Department of Indian Residential Schools Resolution Canada (IRSRC) was created to manage and resolve abuse claims. In November 2003, the government launched a National Resolution Framework to provide a litigation strategy, health supports, a Commemoration Program, and an Alternative Dispute Resolution (ADR) process. The Alternative Dispute Resolution process was intended as a speedier and less adversarial option for former students who wished to settle abuse claims outside the courts.

Soon after it was launched, however, criticism of the ADR process began. A March 2004 conference at the University of Calgary, organized by the AFN, concluded that the ADR was too limited in scope, not fair, too time consuming and, most importantly, did not reflect the principles of restorative justice. The AFN then convened an"expert group," which issued a Review Report in November 2004 calling for the government to revise the ADR process, implement a lump sum payment to all former Indian Residential Schools students, and launch a national Truth and Reconciliation process.

In a statement issued in April 2005, The United Church of Canada supported the positions taken by the AFN in its Review Report. We maintained that any real resolution to the legacy of Indian Residential Schools must include Aboriginal voices in its design, must address the wide range of harms experienced at the schools, and should emphasize healing as well as compensation. We supported a Truth and Reconciliation process, and in fact, had been working with other groups to develop such a process since the challenge of Georges Erasmus to General Council 38 in 2003.

The negotiation process initiated by Mr. Iacobucci in June 2005 culminated in an Agreement in Principle (AIP) on November 20, 2005, which formed the framework for the final Settlement Agreement.

What Is the Content of This Settlement Agreement?

A) Common Experience Payment (CEP):

The federal government will make a lump sum payment, called the Common Experience Payment (CEP), to every former student alive as of May 30, 2005, including those who have already settled claims. This payment is meant to recognize the wide range of harms that students experienced at the schools that are not compensible through the courts, such as separation from family and parenting skills, loss of language and culture, poor education, etc.

The Common Experience Payment will provide $10,000 for the first year of attendance (or part thereof) and $3,000 for each additional year (or part thereof). Former students must apply for the CEP within four years of the implementation of the agreement, by submitting a short form with their name, birth date, residential school, and number of years of attendance.

An advance payment of $8,000 will be made available (by application) to former students who are 65 years of age and older.

The federal government has committed $1.9 billion for the CEP. Any surplus above $40 million will be divided equally among the CEP recipients in"personal credits" of up to $3,000 redeemable for educational services by the former student or an immediate family member. Any remaining monies will go to the National Indian Brotherhood Trust Fund and the Inuvialuit Education Foundation.

Acceptance of the Common Experience Payment will release the Government of Canada and the churches from all further liability relating to the Indian Residential School experience except for claims of sexual or serious physical abuse.

B) Abuse claims:

The process for settling sexual and physical abuse claims will now be called the Independent Assessment Process (IAP). Compensation through the IAP would be paid at 100 percent by the government in all cases following a validation process and an award made by an independent adjudicator.

Addressing many of the criticisms of the Alternative Dispute Resolution process, the IAP has been improved by having a simpler application form, expanded categories of recognized harms, a single compensation grid for the whole country, recognition of"consequential harms" and"consequential loss of opportunity," and an expedited decision-making process.

C) Truth and Reconciliation Process:

A national Truth and Reconciliation Commission will be established. The three commissioners will not act as a public inquiry nor hold formal hearings. The commission will, through archival research and by facilitating national and community Truth and Reconciliation events, provide opportunities for all those involved with the residential school system to tell their stories, create as complete a historical record as possible, and promote public awareness among Canadians about the impacts of the residential school system. The agreement provides $60 million for the commission to carry out its work.

The commission will operate over a five-year timeframe within which are two timelines. By the end of two years, the commission will have held seven national events and completed the research and production of a report on historical findings and recommendations. At the end of five years, the community-initiated (but commission-funded) events will be completed and an ongoing research centre will be established.

D) Healing programs:

The Government of Canada will provide $125 million as an endowment to the Aboriginal Healing Foundation (AHF) to continue funding healing programs over the next five years. Further funding of the AHF will be considered by means of a review during the fourth year.

Canada also agrees to continue to provide mental health and emotional support services to those who apply for the Common Experience Payment and the Independent Assessment Process, or participate in Truth and Reconciliation or commemoration initiatives.

E) Commemoration:

Canada will provide $20 million for commemoration initiatives, memorials, events, and projects at the national or community level. Indian Residential Schools Resolution Canada (IRSRC) will administer the funds on recommendations from the Truth and Reconciliation Commission.

F) Legal fees:

Canada has agreed to pay plaintiffs' counsel for their past time spent in respect of their individual retainer agreements, and for work done on the advancement of test cases and class actions (e.g., Baxter). Any counsel who accepts such payment from Canada thereby agrees not to charge any fees in reference to their clients receiving the CEP. In addition, Canada will contribute an additional 15 percent of any IAP award toward claimant legal fees.

What Are the Specific Implications of This Settlement Agreement for the United Church?

Included in the overall agreement (and considered part of it) are agreements with the individual churches outlining their specific obligations and commitments. The Anglican Church of Canada, The Presbyterian Church in Canada, The United Church of Canada, and a number of Catholic entities (collectively) have negotiated agreements that differ in some details but use the same formula for ascertaining their individual financial commitments. The formula is based on one negotiated by the Catholic entities during discussions with the federal government and the Assembly of First Nations through the summer and fall of 2005. These bilateral agreements are necessary because each of the churches is a legal defendant along with the Government of Canada in the abuse claims. The church agreements deal with issues of current and future liability.

Under our agreement, The United Church of Canada agrees to contribute a total of $6,891,170 toward compensation and healing. Our obligation is set out in three portions:

1. $4,710,420 - This is our cash commitment. As of November 20, 2005, when the AIP was signed, the United Church had already contributed $5,444,420 in settlement payments. Therefore our cash obligation has been met and the surplus will be credited to portion b).
2. $1,744,600 - This portion may be paid in cash or in-kind contributions. The surplus from portion a) in the amount of $734,000 will be credited against this portion, leaving an outstanding obligation of $1,010,600. This balance will be paid"in kind," in other words by contributions directed, at our discretion, to healing programs (such as through our Healing Fund) that qualify under criteria identified in the agreement. All settlement contributions we have made after November 20, 2005, will be recovered from the government and redirected to this healing work. A special committee of church, government, and AFN representatives will approve qualifying contributions.
3. $436,150 - This amount becomes due only in the event that the seven-year national fundraising campaign agreed to by the Catholic entities raises more than $20 million.

As a result of fulfilling our legal and financial obligations under this agreement, the liability of the church for all compensation for all Indian Residential Schools abuse claims will be discharged, and thereafter the government will not require further monies to be paid or in-kind services to be provided by the church, nor will it third-party the church in any future legal action related to Indian Residential Schools. This applies to abuse claims processed through the Independent Assessment Process or through the courts.

There is one exception to this blanket indemnity. Former students may make a claim for loss of language and culture in civil court against the federal government and/or the church. The church would be financially responsible for any compensation awarded against it for loss of language and culture. It is, however, extremely unlikely that the church would find itself in that situation. Under current Canadian law, there is no entitlement for compensation for loss of language and culture, and a civil court would have to recognize that entitlement for the first time. In addition, if former students choose to pursue a claim for loss of language and culture in court, they give up their right to receive the Common Experience Payment (which is meant in part to compensate for loss of language and culture), and to have their abuse claims adjudicated in the Independent Assessment Process. Since a civil court claim would be a much longer process with an uncertain outcome, it is expected that most claimants will choose to accept the CEP and seek compensation for abuse through the IAP.

Fulfilling our legal/financial obligations under the agreement, however, does not constitute our full participation in the Settlement Agreement. The United Church will be actively involved in the healing and reconciliation components, such as the national and community events related to the Truth and Reconciliation Commission. We will also continue to attend adjudication hearings for abuse claims to bear witness to the claimant's story and offer words of acknowledgement, apology, and support.

What Is the Timeline for Approval and Implementation?

Once approved and signed by all parties, the Settlement Agreement will be submitted this spring to the courts in the seven jurisdictions where class action lawsuits have been filed. The courts will be asked to approve the Settlement Agreement as full and final resolution of all class actions.

Following court approval, there will be a five-month period during which former students can"opt out" of this agreement. Some may choose to do so if they believe that they are likely to get a better settlement through litigation. In the event that the number of former students opting out exceeds 5,000, the government has the option of declaring the Settlement Agreement null and void.

Should the agreement clear the"approval" hurdles of the federal Cabinet, the jurisdictional courts, and the opt-out period, it will be implemented early in 2007. The government indicates that those making application for Common Experience Payments could expect to receive their compensation within about five weeks of applying.

Where Do We Go from Here?

The United Church agreement under the umbrella Settlement Agreement defines our legal and financial obligations as negotiated with the federal government, Aboriginal leaders, and other churches. These obligations will be paid off soon. The agreement does not, however, define our moral responsibilities as they relate to our active and long-term commitment to build right relationships of trust, respect, and equality between Aboriginal and non-Aboriginal peoples. It is to the work of healing, justice-seeking, and reconciliation that we must now turn our attention and our resources. This work will challenge our theological and cultural assumptions as well as our pocketbooks, but it offers the promise of transformation. May the Great Spirit bless us as we recommit ourselves to this ministry.

For more information, please contact

(Rev.) James V. Scott
General Council Officer: Residential Schools
The United Church of Canada
Tel: 416-231-7680 ext. 2032
E-mail: (Rev.) James V. Scott