We invited lead lawyer Jeffery Wilson to clarify questions being asked. We set out the questions and Jeffery’s answers:
- Question: Can I still sue the children’s aid societies and the Ontario government for the harm I experienced as an foster child, crown ward or adopted child.
Answer: Yes, you can do that.
This case and your participation in the settlement means you cannot sue Canada (the Federal Government). Canada would not have legal responsibility for physical or sexual harm experienced when you were in care. Canada’s liability, because of this case, is limited to Canada’s failure to inform you and your caregivers of your First Nations’ cultural identity and benefits to which you would have been entitled.
However, you can still sue the province and the government institution (namely, the children’s aid society) responsible for removing you from your home.
- Question: Is the settlement amount for the compensation better or worse than had we gone to court on October 11, 2017 before the Honourable Justice Belobaba?
Answer: Better, much better. Here are 9 reasons why:
i) This settlement is Canada-wide. Brown v Canada is Ontario-wide.
ii) This settlement includes crown wards. Brown v Canada is limited to adopted children.
iii) This settlement includes long-term temporary wards. Brown v Canada is limited to adopted children.
iv) This settlement includes claimants from 1951 – 1991. Brown v Canada is limited to 1965-1984.
v) This settlement includes Inuit children. Brown v Canada is limited to “Indian” survivors.
vi) This settlement includes “Indians” living on and off of reserves. Brown v Canada is limited to “Indians” living on reserves.
vii) This settlement will definitely enable payment in a much shorter period of time than if we proceeded to court.
viii) This settlement may result in payments of $50,000 per claimant. We predicted that we would not have secured this much per claimant had we proceeded to Court.
ix) This settlement includes an initial payment of at least 50 million dollars for a Foundation to provide healing opportunities for the survivors and to take advocacy steps to stop, once and for all, the removal of any Indigenous child in Canada from their families and communities. This was not an outcome we could have achieved in court.
- Question: What about $25,000-$50,000? That doesn’t seem very much for someone who lost their cultural identity?
Answer: You’re right. It isn’t very much. There is no amount of money that could replace what you have lost or that could make up for what you suffered.
I lost both my parents at a young age and received $25,000 from their estate. It didn’t replace them and it didn’t make me whole—so I understand why this seems like “not enough.” There is no “enough.” I know someone wrote in and said “it should be a hundred thousand dollars.” Maybe, it should be more. But, no court would have ever ordered anything close to $100,000! We negotiated against the backdrop of what we could realistically get from the court, applying western law. Like any other case, this one is the beginning, the first step.
And while this settlement cannot give you back what you deserve or what you have lost, it can make a very big difference. It is symbolic and shows that cultural identity will now be something that courts have to consider, and measure in all cases from this point forward. Because of you, the law must now recognize that “saving the child” means keeping him or her with family, or extended family or her or his community.
Loss of cultural identity is a collective loss. That means we have to consider the total of what we have achieved, and not simply the amount per claimant.
- Question: This Foundation, who will run it, and can I be part of it?
Answer: First Nations people will run it if they come forward and demand that they run it. I am the acting chairperson of the Working Committee for the Foundation. If you want to be part of it, send me an email at firstname.lastname@example.org
- What will the Foundation do? How will I benefit from it?
Answer: The Foundation’s mandate will be shaped by those who come forward to lead it. But the intent is that it will support advocacy efforts to protect First Nations children and offer support for healing and counselling services to those who need it. Don’t think of it as a “physical place” but rather as a country-wide resource for all survivors. No matter where you live in the country, the Foundation’s support and resources will be available to you.
- Question: Why are Métis not part of the deal?
Answer: They are part of the deal insofar as they are part of the people to be served and helped by the Foundation. They are not part of the individual compensation entitlement because there are no records to properly identity Métis for the purpose of this settlement.
However, the settlement does not preclude Métis people from suing a provincial or federal government, or provincial organization (like the CAS) if they choose to do so in the future.
- Question: When will we get our money and how much of it will go to lawyers?
Answer: None of it will go to lawyers as long as you use the 4 law firms who helped the government negotiate this deal. In B.C. call David Klein, in Manitoba and Saskatchewan, call Kirk Baert, in Alberta, Yukon, and the Prairie provinces, call Tony Merchant. In Ontario, call Wilson Christen LLP. All of these lawyers have legally agreed (as part of the settlement) to charge nothing to any sixties scoop survivor needing help to file a claim.
If I have my way, you shouldn’t need a lawyer to file your claim. It should be a simple exercise, one or two page form. The form is being created by the Federal Government. Once, it is created and released to the public we’re hoping six months for receipt of payments but understand that there has to be a notice period paid for by Canada and notice to people not only in Canada but in the USA and overseas, and that has to happen first. We have to do our best to make sure that everyone, who is entitled to receive money or be assisted by the Foundation, knows about it. Once the form is finalized it will posted on our website. Please continue to monitor our website for updates on the form and process.
- Question: When will one be able to apply for compensation and how do you do that? Answer: We are still working that process out. Our objective is to make the application process as simple as possible, not like the residential schools’ compensation process. To prepare for your application, you can take steps to obtain your records from the Children’s Aid Society that took you away. Specifically, you should request the court orders. Sign a direction or consent for the records to be released to you. Do this immediately. Make the request in writing to the director of the Children’s Aid Society, or go to your Band Office or Band First Nations’ Child and Family Services for help in asking for your records. You have a right to those records. Anyone who tells you differently is wrong.