It may be impossible to identify all of the former students who were abused at Canada's Indian residential schools but abandoned their compensation claims when they were subjected to a questionable legal manoeuvre by federal lawyers, says the secretariat charged with determining which cases fall into that category.
The Department of Indigenous Affairs recently completed a year-long investigation into the claims that were rejected or reduced as a result of the "administrative split" – a technicality used to disqualify a school from being included in the Indian Residential Schools Settlement Agreement. The department has since produced a list, as yet unpublished, of about 200 survivors whose applications for redress had been affected.
But claimants' lawyers say many more former students withdrew their claims in the initial stages after being convinced by adjudicators and federal representatives that the administrative split left them no chance of success.
The secretariat that administers the Independent Assessment Process (IAP), which was established as part of the agreement to award those who were abused, was asked by the government to determine which claims were abandoned in the prehearing phase because of the administrative split.
But Michael Tansey, an IAP spokesman, said this week in an e-mail: "We are not always advised as to the reason(s) for withdrawal of claims."
That means some of the indigenous people who were the victims of physical and/or sexual misconduct as children at the institutions may never get the money to which they are entitled.
"That's why [the government] needs to be flexible," Bill Erasmus, the regional chief of the Northwest Territories for the Assembly of First Nations, who is responsible for the AFN's residential schools file, said Thursday. Those people who abandoned their claims "need to know that they can apply for compensation all over again," he said.
The residential schools, which were combinations of educational institutions and boarding facilities, were first established in the 1800s. In 1968, the government began splitting the operation of some of the institutions, running the school separately from the residence. That was known as the administrative split.
Late in 2010, Justice Department lawyers began arguing – usually with success – that schools listed in the settlement agreement ceased to be residential schools at the time the administrative split took place and that students who were abused at one of the institutions after the split should be disqualified from receiving compensation.
In 2014, Daniel Shapiro, the chief adjudicator of the IAP, wrote a letter in which he said it would not surprise him if the number of cases affected by the administrative split exceeded a thousand.
When Carolyn Bennett, the Indigenous Affairs Minister, ordered the review into problem last year after The Globe and Mail exposed the issue, Mr. Shapiro put a hold on 135 cases that were still before IAP adjudicators that he thought might have been affected.
The government now says 47 of those cases fall under its definition of administrative split. The remainder involve other types of jurisdictional issues. But claimants' lawyers complain the parameters used by the government to determine which cases were unfairly affected by the administrative split are far too narrow.
In a letter to lawyers written earlier this month, Mr. Shapiro warned that, as a result of a court decision last fall, any claims affected by the administrative split that had been reviewed twice by the IAP would have to be challenged by Feb. 27 to get judicial reconsideration. Some lawyers say that deadline is unreasonable, especially since most have not yet been informed whether their clients are among the 200 identified by the government.
But Dr. Bennett said Thursday that the deadline should not be a concern.
"Our government is committed to fixing the impact of the administrative split argument," the minister said in an e-mail. "Solutions are under active consideration and will be announced shortly. We will be communicating before February 27 with the legal representatives of those who were affected by this issue and that deadline will not affect efforts to find a remedy for those whose claims were rejected or reduced because of the administrative split argument."