Historical Injustice & Class Action Settlements

A closer look at indigenous spending arising from claims of past wrong

Image from The Royal Society of Canada

By

James Pew

The following is by no means an exhaustive analysis of federal spending on indigenous priorities. Instead, I have chosen to focus on taxpayer funds transferred to various indigenous groups and individuals for claims of past injustice. Over the years the amounts involved in these types of claims have drastically increased, and the process has expanded to include new groups of claimants - from “status Indians with grievances, to their family members and heirs, to whole First Nations as collective entities, to Métis, to all Indigenous people.”¹

I will save the discussion of the massive costs incurred by Canadian taxpayers through various land claims negotiated with indigenous groups, or the disproportionate drain on services by dependent indigenous communities, for another essay. However, it should be noted that spending per indigenous person on jails, child welfare, education, health etc, are higher per capita than the spending on the mainstream.  

Keep in mind that the billions discussed below, in virtually every case, are intended to make up for things the Canadian government did in an effort to help indigenous Canadians in the past. However, context, facts, circumstances, and intentions have been ignored and replaced with grievance. Even though every effort was made in so many cases to ameliorate the suffering of isolated indigenous people living on remote reserves, in the eyes of the Aboriginal Industry, it wasn’t good enough, so Canadians now owe big time because of it. 

There is never a thought given to indigenous Canadians' share of the responsibility for their unfortunate lot, or to the possibility that many of their “lots” out there in the middle of remote Canada are perhaps not the best places for healthy thriving reserve communities.  The blame is squarely and totally placed on non-indigenous Canadians (who are now referred to as the derogatory “settler colonists'').  Indeed, in Canada, no good deed goes unpunished. Which leads one to wonder, what future payouts will non-indigenous Canadians be on the hook for, when attempts are made to help indigenous people today? 

The Class Action as a tool for reparations

On January 24, 2023 a class action lawsuit against the federal government was filed by Louis Gardiner and other former students of the IIe-a-la-Crosse Residential School. Ile-a-la-Crosse was the site of one of the oldest Roman Catholic missions in Western Canada. It is estimated that approximately 1,500 students attended the school over the century it operated. Former students are primarily Metis, so were not included in the Indian Residential School Settlement of 2006. There is not yet a cost estimate, but if precedent dictates, the government will elect to negotiate and settle.

Complicating the matter, a nearly identical class action, the Aubichon case, was launched seventeen years ago by plaintiffs with the Merchant Law Group. It has still not been certified by the courts. A judge has deferred ruling on the Aubichon case for now, but it is unlikely that it will be certified. The Merchant Law Group dragged its feet for far too long, and now it is up to the court to decide if the plaintiffs of the Aubichon case should be rolled into the Gardiner class action, or if both class actions will be permitted to proceed.

Earlier in January of 2023 there were another two class action settlement agreements between the federal government and First Nations. One of the agreements-in-principle (estimated at $2.2 billion) involved former indigenous students who were part of a boarding home program between the years 1951 to 1992 that placed indigenous youth (who lived on remote reserves) into the homes of families located in cities where they could attend school. 

Canadian author and lawyer Peter Best recently wrote of this settlement:

“The lawsuit alleges that this was another ‘assimilation plan’ of the federal government, rather than a simple, good faith, well-intended plan, where no education whatsoever was available on their home reserves, to ensure that Aboriginal children got an education in order to improve their chances in life.”

The other proposed agreement in January was the band reparations class action, which is part of a broader collective class action, including “Day Scholars,” known as the Gottfriedson case. Initially filed by the Tk'emlúps te Secwépemc and shíshálh Nation in British Columbia, the Gottfriedson case is named after a former B.C. regional chief, Shane Gottfriedson, who filed it alongside shíshálh band councilor Garry Feschuk. 

The Day Scholar’s were indigenous children who attended residential schools during the day, but went home at night. Their portion of the collective class action was settled in 2021 (estimated final cost $3 billion). If one considers that the Indian Residential School Settlement of 2006 included compensation for harms that arose primarily from separating families, it is fair to wonder why Day Scholars would be compensated when most remained at their homes during the school year.

On January 21, 2023, a settlement of $2.8 billion was announced concerning the other part of the Gottfriedson case: the band reparations class action. This group of 325 First Nations who were “seeking reparations for the loss of language and culture brought on by Indian residential schools” reached an agreement-in-principle with the government. On March 13, as expected, a federal court approved the band class litigation settlement agreement.²

Some interesting language was added by the government. From the CBC:

“As part of the agreement, the band class members agreed to ‘fully, finally and forever’ release the Crown from claims that could conceivably arise from the collective harms residential schools inflicted on First Nations, as alleged in a previous court filing.”

When one considers that many Canadians mistakenly assumed the 2006 Indian Residential Schools settlement for $6 billion would release the Crown ‘fully, finally and forever’ from further IRS related compensatory requirements, it is no stretch to predict that many Canadians might now be skeptical of this aspect of the band class reparations settlement. Especially when the very next line reads:

“This legal release would not cover or include any claims that may arise over children who died or disappeared while being forced to attend residential school.”

It is worth mentioning that the band class reparations settlement is the first time the word “reparations” has appeared in a class action related to historical injustice. One can be forgiven for imagining the floodgates swung wide open by the use of this highly charged term. Also worth noting, is that the band class sought damages for groups, not individuals. These are unprecedented developments in a forever evolving process of sophisticated rent-seeking: class action lawsuits involving indigenous grievances which in most cases lead to settlements.  

It was former Attorney General of Canada, Jody Wilson-Raybould who, for the purpose of “reconciliation,” issued a highly illiberal and undemocratic decree, the Directive on Civil Litigation Involving Indigenous Peoples, or more commonly known as the “Practice Directive,” essentially instructing Crown prosecutors not to defend in open court the lawsuits brought forward by indigenous litigants, but instead negotiate settlements. From the perspective of Indigenous groups, there is nothing to lose, and much to gain, from launching a class action suit. Because of this, in recent years the class action settlements have become an enormous and out-of-control facet of indigenous spending.

A closer look at federal spending on indigenous priorities

The government generally places indigenous spending into two categories. First level expenditures are budgeted items related to programs and services, while second level expenditures arise from claims of past wrongs. Two of the most effective ways indigenous groups successfully pursue claims related to historical injustice are 1) The Specific Claims process 2) The use of the class action lawsuit, which leverages the Practice Directive, most often leading to settlement.

Specific Claims make up an enormous chunk of second level expenditures. They arise from past wrongs related to treaty agreements or the implementation of the Indian Act. The government began accepting Specific Claims in 1974, but over the years the caseload of new claims has vastly outnumbered the settling of old claims. This is entirely at odds with the American system of 1946, which differed because the claims process had a time limit of 5 years. Canada has been awarding compensation for Specific Claims for decades, and there is no sign of it slowing down, quite the opposite.

But class action settlements are more likely to make headlines than Specific Claims, although usually with insufficient in-depth analysis or criticism. In an article from 2021, Tom Flanagan had the following to say about Class Actions:

“As class actions have proliferated, their scope has also increased. Recent class actions demand payment not just for individuals who allegedly suffered harm but also for their family members, heirs and entire communities. Nor are these class actions petty ante lawsuits. Most demand payments in the billions of dollars, with tens or hundreds of millions for the law firms who carry the litigation plus additional large sums to create new organizations and programs in the name of commemoration, healing and reconciliation.”

A listing of recent class action settlements, leaving out the ones mentioned above, will give the reader a sense of the scope. The Indian Hospitals Settlement (2020) has no decision yet, but is seeking $1.1 Billion. The Newfoundland & Labrador Residential Schools Settlement settled for $50 million - these schools weren’t previously covered in the Indian Residential School settlement because the federal government did not directly fund them, they did however transfer education funding to the province which apparently was enough to trigger an obligation for present day compensation. It appears that virtually every past attempt to educate indigenous children, even successful attempts, are to be considered wrongs committed so negligently as to require a perpetual stream of financial reparations. 

The Federal Day Schools Settlement is estimated at $1.47-billion. This settlement is for indigenous students who attended an Indian Day School by the day, but returned home to their families after school - the same question applies here as put forward earlier regarding “Day Scholars” - why are they entitled to compensation?

There are also class actions arising from past injustices unrelated to schooling. The Clean Water Settlement (2021) has an estimated cost of $8 billion, which is divided into $2 billion for various settlement funds, and an unprecedented $6 billion requirement for the government to invest in future water programs. Even though the judge who approved the settlement remarked that there was “uncertainty about the Courts’ ability to compel the type of prospective relief contemplated in the Settlement,” the $6 Billion was never-the-less unilaterally ordered outside of any democratic consensus or parliamentary procedure.

Concerning child welfare apprehensions is the Sixties Scoop Settlement of $875 million - this is indirectly related to education. The Indian Residential Schools from the 1950s onward, were used to house abused, neglected or orphaned indigenous children. As the IRS system was phased out the need for placement of indigenous orphans increased greatly. This is why so many indigenous children were adopted into non-indigenous families. But since the rise of class action litigation and the financial windfalls they deliver, any appreciation that indigenous Canadians may have felt for non-indigenous Canadians who helped them in the past has been poisoned in a climate of incentivized grievance. 

By far the largest of all class action settlements was the 2022 Child Welfare Settlement of $43 billion, which a judge approved verbally on October 24th³ (written approval to follow). There has been little public scrutiny over the Child Welfare Settlement despite the enormous and unprecedented amount involved. One can only wonder if the false stories, circulating widely at the time of the settlement negotiations, of murdered indigenous children in unmarked graves might have had something to do with the astonishing numbers involved and the lack of criticism this class action received?

Oftentimes when the media reports on new lawsuits or settlements, the important context involving the big picture of indigenous spending arising from historical injustices is inadequately detailed. Understandably, It is complex and many Canadians admirably feel that compensation for past wrongs is the right way to achieve reconciliation. But I wonder if those who believe this are aware of the extent of the compensation awarded for claims of past injustices, the advantage given to indigenous litigants by the government's Practice Directive, and the scant public scrutiny these class action settlements are given?

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Thanks for reading. For more from this author, read Canadian First Nations, “Settlers,” and Palestine

Also, for more evidence of the ideological indoctrination in Canadian education, read Yes, schools are indoctrinating kids! And also, Yes, The University is an Indoctrination Camp!

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1. fraserinstitute.org/sites/default/files/from-reconciliation-to-reparations-exploiting-a-noble-idea.pdf

2. Federal Court approves Band class litigation settlement agreement - Canada.ca

3. https://www.fnchildcompensation.ca/updates/