Resolving Indian Residential School abuse claims using therapeutic jurisprudence techniques

Guest blogger Shelley Trevethan, Executive Director, Indian Residential Schools Adjudication Secretariat, discusses the use of therapeutic jurisprudence techniques in resolving claims of abuse suffered at Indian Residential Schools in Canada…

Legacy of Indian Residential Schools in Canada

For more than a century, between the mid-1800s and mid-1900s, the Government of Canada and church entities administered Indian Residential Schools across Canada. The purpose of the schools was to remove and isolate Aboriginal children from the influence of their families and cultures and assimilate them into Canadian culture. It is estimated that over 150,000 Aboriginal children attended residential schools.

Residential schools were often overcrowded and underfunded, with poor heating and sanitation, high levels of malnutrition, and exposure to diseases. Early in the 20th century, reports to the government identified a crisis in the state of these schools and a high death rate among students, in some cases as high as 50%[1]. Students were prohibited from speaking Aboriginal languages or practicing their cultures. There are many documented stories of mistreatment – including widespread emotional, physical and sexual abuse by teachers and administrators who were responsible for their care, as well as by fellow students.

The residential school program formally closed in 1969, and most schools were closed by the early 1970s, with the last school closing in 1996. Today, it is estimated that there are approximately 80,000 Aboriginal residential school survivors still alive in Canada.

Independent Assessment Process

As awareness of the harms of the Indian Residential Schools system grew[2], survivors sought justice and reparations from the Government of Canada and the churches that ran the schools. During the 1990s and early 2000s, over 10,000 litigation claims were filed.

Various alternatives to the formal court system were tried, culminating in the Indian Residential Schools Settlement Agreement, implemented on September 19, 2007. The largest class action settlement in Canadian history, the Settlement Agreement provides financial and non-financial benefits to living survivors of residential schools. The Settlement Agreement was accompanied by a formal apology by the Prime Minister of Canada on June 11, 2008.

The Independent Assessment Process (IAP) is one of two individual compensation programs within the Settlement Agreement[3]. The IAP resolves claims of sexual abuse, serious physical abuse, and other wrongful acts causing serious psychological injury to the claimant. The Indian Residential Schools Adjudication Secretariat (Secretariat) is the independent, quasi-judicial tribunal responsible for resolving IAP claims. The Secretariat is one of Canada’s largest tribunals, reporting to an independent Chief Adjudicator, with the support of 100 adjudicators and almost 300 staff. Almost 38,000 applications have been submitted to the IAP, over 80% of which have been resolved to date.

Therapeutic Jurisprudence in the IAP

The goal of the Settlement Agreement is to provide a comprehensive and lasting resolution for former students of residential schools, their families and Aboriginal communities. It recognizes that conventional court systems may not be suited to address all injustices, and that non-traditional initiatives specifically tailored for unique historical circumstances may be required to achieve reconciliation.

The IAP utilizes therapeutic jurisprudence techniques through a non-adversarial, neutral, and claimant-centred approach to resolving claims, as well as supporting healing and reconciliation throughout the process.

Staff utilize therapeutic jurisprudence approaches when dealing with claimants and Aboriginal communities prior to hearings. This includes active engagement with communities using culturally sensitive practices (e.g., ceremonies including prayer and tobacco). Providing information and assistance to claimants is a key element to the claimant-centred approach used in the IAP.

Claimant control over the process is an important part of the IAP. Claimants decide if they want to hire a lawyer or if they want to represent themselves at the hearing. They also choose the location of the hearing (including in their community) and indicate if they want a male or female adjudicator. The Secretariat organizes all hearing logistics, including travel and accommodation for the claimant. The aim is to provide control to the claimant and to make the process as stress-free as possible.

Hearings are held in a comfortable and culturally-sensitive environment. They are not open to the public. Claimants can bring family or friends for support, and health support workers and interpreters are available. An Elder or other religious person can provide a ceremony/prayer if requested. Defendants do not attend hearings – Canada and/or church representatives attend, but cannot question claimants directly[4].

Adjudicators lead hearings, using therapeutic jurisprudence techniques such as an inquisitorial approach, active listening and displays of empathy. Claimants are provided with the time they need to tell their story. Adjudicators provide validation of the abuse suffered by claimants by actively listening to them tell their story. Following the hearing, Canada and church representatives often apologize to the claimant for the harm suffered at residential schools, which is an important part of healing for many survivors.

Following the hearing, adjudicators review the legal fees charged to claimants by their lawyers, another demonstration of the claimant-centred approach. In addition, the Secretariat provides funding for claimants to support each other in their healing journey through activities such as counselling, healing workshops, sweats, or ceremonies. Finally, the Secretariat maintains ongoing relationships with Aboriginal organizations and communities, which is important for healing and reconciliation.

Therapeutic jurisprudence techniques are an integral part of the IAP. Cultural sensitivity, choice, support and actively listening to the claimant’s story are key to attaining the goals of healing and reconciliation.

For more information on the IAP, please visit www.iap-pei.ca.

[1] National Archives of Canada, Indian Affairs Records, Vol 6001, file 1,1,1(1), MR C 8134, Memorandum of A. Meighen from D.C. Scott, January 1918, cited in Royal Commission on Aboriginal Peoples (1996), Vol 1, Chp 10.

[2] Royal Commission on Aboriginal Peoples (1996). Bridging the cultural divide: A report on Aboriginal people and the criminal jurisprudence and Canada. Ministry of Supply and Services Canada.

[3] The Settlement Agreement also includes a Common Experience Payment, and non-monetary measures including a Truth and Reconciliation Commission, Healing funding, and Commemoration program.

[4] Defendants can suggest questions to adjudicators.

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