Court decision quashes hopes for Northerners to reopen rejected residential school claims, lawyer says

A court ruling last week closes the door to new evidence in cases of survivors of abuse in the residential school system, whose claims may have been previously rejected by the Independent Assessment Process.

'We were hoping to revisit those cases but that door is now closed,' says Steven Cooper

Children hold letters that spell 'goodbye' at Fort Simpson Indian Residential School, in Fort Simpson, N.W.T. in a 1922 archive photo. A recent decision by a B.C. Supreme Court judge means residential school survivors whose claims were rejected by the tribunal tasked with evaluating those claims cannot now see their claims reopened, even with new evidence. (Library and Archives Canada)

It was a victory for Canada but a loss for some of his Northern clients, says lawyer Steven Cooper about last week's B.C Supreme Court decision on Indian residential school compensation claims. 

Cooper articled as a lawyer in Hay River, N.W.T., and originally practised there, and is now an Edmonton-based lawyer practicing law in the N.W.T., Nunavut and Alberta. He represents residential school survivors across the North.

B.C. Supreme Court Justice Brenda Brown's ruling last week prevents a tribunal established to evaluate claims of abuse on the part of former residential school survivors — the Independent Assessment Process (IAP) — from reopening claims formerly rejected, based on new evidence.

That effectively quashes the hopes of anyone who may have wanted to reopen a claim with the IAP for sexual and physical abuse they may have suffered, but were unable to prove. Former students whose claims had been rejected cannot reopen those claims with the IAP, even with new evidence to support them.

In the decision, Brown ruled reopening claims based on new evidence would violate the terms of the 2006 settlement agreement, and leave the settlement process open-ended.

Cooper said the decision is a victory for the federal government, but it effectively ends a victim's hope of re-opening a rejected claim even if new evidence surfaces.

"It closes the door on any reconsideration of any cases for almost any reason whatsoever," Cooper said.

"It actually restricts the ability of the adjudicators, particularly the chief adjudicator, from re-opening decisions."

He said it's hard to say how many residential school survivors from the North might be affected by the decision, although he estimates his firm has 30 cases that could be affected.

"We were hoping to revisit those cases, but that door is now closed unless there is a successful appeal of Justice Brown's decision," he said.

Bad idea to close that door

About 98 per cent of claims brought forward for compensation under the residential school settlement agreement have been resolved, with 90 per cent of survivors who filed claims having received compensation, according to the chief adjudicator's office.

But Debbie Gordon-Ruben, a health support program manager for the Inuvialuit Regional Corporation who works with residential school survivors, believes closing the door to new evidence is a bad idea. She fears the decision could shut out those who remain too traumatized to give their testimony.

"Because of the trauma that took place, a person may not remember right away and as they begin to deal with it internally, eventually they might say, 'Oh, I remember now,'" Gordon-Rubin said.

She says she knows of survivors whose claims were rejected. She fears they will now never be heard or compensated, regardless of what new evidence may turn up.

"There were a lot rejected who feel they were wrongly dealt with," she said. "They say, 'What happened to us when we were kids, it's the truth, but we feel like they don't believe us.'"

"That's why some of them become addicts [and] some become withdrawn and can't leave their home."

An appeal of the B.C. Supreme Court decision has not yet been announced, but is being contemplated, according to David Schulze, a lawyer involved in the case who argued against the decision.

With files from Josh Campbell and Jorge Barrera