Cree lawyer Eleanore Sunchild believes residential school survivors deserve one final chance to file a claim under the Indian Residential Schools Settlement Agreement (IRSSA), even though the deadline passed in 2012.
Sept. 19, 2012 was the government’s deadline to file claims under the Independent Assessment Process (IAP), the section of the IRSSA the dealt with compensation for sexual and serious physical abuse
Sunchild, a citizen of the Thunderchild First Nation in Saskatchewan, just east of the Alberta border town of Lloydminster, has been practicing law for 12 years. The daughter of a prominent Cree Elder, she has been focussing her practice on residential school law.
She has collected approximately 300 files of people who missed the deadline and therefore, as of this moment, missed out on getting a hearing to tell their story and let an adjudicator determine if they qualify for compensation under the IAP. She is convinced there are thousands of survivors who missed out across the country.
She will soon file a request for direction (RFD) with one of the judges who supervise the IRSSA.
“My argument is that this deadline is miscalculated. There were two periods that had to expire before you got to the deadline,” she told APTN Investigates. “Basically, they counted 30 days and then they started counting the next 30 days on the same day. But they were supposed to let the first period – the first 30 days – expire and then start counting again to get to the implementation date.”
And then the deadline date was set at five years after the implementation date.
“But by counting the second 30 days on top of the first 30 days, they actually missed a whole day,” she said. “So my argument is that the deadline was Sept. 20, 2012 not Sept. 19, 2012. And by doing that they deprived people of an entire 24-hour period.”
“If they told people before the deadline that all they had to do was submit their name in order to preserve the right to file an application after the deadline that would have saved people grief“
– Eleanor Sunchild
As the Sept. 19, 2012 deadline approached, hundreds of last-minute applications were received, just at the Sunchild Law firm alone.
“The period around the deadline was crazy. We were inundated by people coming in and phoning and faxing from all over Canada wanting to get a claim in. In the last week we submitted close to 500 claims. It was crazy and every law firm was like that,” the lawyer said.
She said the IAP Secretariat, a government bureaucracy set up to implement the IAP process, erred at that time in another way.
“The secretariat said you have to send in a signed application in order to meet the deadline. But after, we found out all they really needed was a name to be submitted prior to the deadline. So people who were apprehensive or reluctant to file a claim before the deadline, all they would have to do was submit their name,” she said. “So if they told people before the deadline that all they had to do was submit their name in order to preserve the right to file an application after the deadline that would have saved people grief.”
Many advocates and leaders of survivor groups have pointed out that many of the people who suffered the worst of the residential school system live broken lives of addiction, homelessness and illiteracy. And because the IAP is reserved for people who suffered severe trauma as young children decades ago, many had a hard time getting themselves into the right frame of mind to re-live that trauma.
Many also live in remote places where the government’s advertising campaign to inform survivors of the approaching deadline would not have reached.
And since residential schools were mostly about cultural assimilation and definitely not primarily about education, many of the people who attended those schools would not be sophisticated enough to comprehend the legalistic language of the government advertising.
So there were many compelling reasons why people would have missed the deadline, survivors say.
Sunchild believes the notice of the impending deadline, published or broadcast by most media outlets, “was written at a level that was very sophisticated and I don’t think the average Grade 8 residential school survivor would be able to properly read that.”
Survivor organization leaders say that every person excluded from the IAP is a financial gain for the government. Allowing people damaged by the system to be excluded because of that damage is contrary to the idea of natural justice, they say.
“Yes, it is,” Sunchild said. “I’m going to argue that there should be honor of the Crown when they’re dealing with residential school survivors. Of course, the residential school survivors are vulnerable people and the government knows it. So there should be some leniency or even common sense in allowing these people to file an application. But the court is saying that the implementation has to be a strict interpretation of the IRSSA.”
A graduate of the University of Alberta law school, Sunchild appreciates that the settlement agreement has to come to an end at some point.
“They have to adhere to the deadline, and fine. I know the Crown needs finality to the agreement but by my calculation, if they’re going to stick to the argument that they have to rigidly implement the interpretation of the settlement agreement, then they owe the survivors one day,” she said. “They owe them a 24-hour period to submit an application – with proper notice.”
The Assembly of First Nations chiefs passed a resolution supporting this initiative in 2015. Sunchild intends to follow up.
“I have to because these people deserve to have their story heard. And the pool is getting smaller, too. These people are getting older, they’re passing away,” she said. “So it’s not too late while the process is still established for them to be admitted and obtain a hearing date.”