NWT day school survivors ineligible for compensation over technicality

Warning: The following report contains mention of violence committed against Indigenous children and communities. If you require support, the National Indian Residential School Crisis Line can be reached 24 hours a day by calling 1-866-925-4419.

Weeks before the final deadline, many who attended Northwest Territories day schools as children are just discovering that they won’t be eligible for compensation from the recent settlement.

The issue comes down to the legal definition of residential schools by Canadian courts.

In the first residential school class action lawsuit in 2006 – at the time, the largest class action settlement in Canadian history – the prerequisite for eligibility was to have stayed in a boarding house while at school. But in the last ten years, two major class action suits successfully expanded the definition of residential schools, allowing for more former survivors and their families to receive compensation.

For years, day school scholars, as they are referred to in the suits, had not been eligible to participate in residential school class actions – despite the devastating impact these schools had on many who attended. For many survivors, the day school class actions have provided some acknowledgement of the harms they experienced.

But receiving this compensation now hinged on whether the institution received funding through the federal government, through what was once known as the Canadian Department of Indian Affairs.

For many NWT survivors, a number of whom had already not been considered in previous suits because of incomplete school lists, this would only add another barrier.

The first day school lawsuit, certified in a Vancouver federal court in 2015, only covered five NWT residential schools: Immaculate Conception in Aklavik, All Saints in Aklavik, Sacred Heart in Fort Providence, St. Joseph’s in Fort Resolution and St. Peter’s in Hay River.

The second lawsuit, the Federal Indian Day School Class Action, was certified in 2018. Its scope is far more significant, and covers 29 Northwest Territories schools.

But because Canada transferred authority over all NWT schools to the territorial government in the 60s, its reach is limited; anyone who attended a residential school during the day in the NWT after 1969 is ineligible.

The same issue prevented Indigenous NWT residents from accessing a $20 billion child welfare settlement earlier this year, the next largest class action lawsuit in Canadian history.

The deadline to submit claims for the Federal Indian Day School Class Action is in January 2023, and many who have been preparing their paperwork have no idea they can’t be included.

What about devolution?

The federal government passed on various responsibilities to the territorial government in a slow process that began with the education system in 1969, and continued with healthcare throughout the 80s.

“My understanding is that the territory didn’t become independent from the [federal] government until the devolution, in 2014,” said Tim Lennie, Wrigley resident, former Pehdzeh Ki First Nation Chief and former day school scholar. “So this makes no sense.”

This exact point is what allowed for Kivalliq Hall in Rankin Inlet to be designated as a residential school in 2018, over ten years after it was excluded from the Indian Residential School Settlement Agreement. Built in 1985 in Rankin Inlet, in what was once the Northwest Territories, now Nunavut, the school was open until 1997. The lawsuit began when former student Simeon Mikkungwak was told he was ineligible for federal compensation as responsibility for running the school had been handed over to the GNWT many years before.

In 2018, a Nunavut judge found that “during the relevant period, the funding of the GNWT by Canada and the project of devolution between them was still evolving. Canada remained involved in education-related matters in the Northwest Territories.”

But despite this landmark decision, it doesn’t immediately apply to schools other than Kivalliq.

“I’ve been personally keeping track of all of this because I’m involved in the claim process but this is the first time I’ve ever heard what you’re telling me,” said Lennie. “This is outrageous.”

Lennie described how he and other Wrigley residents have been finding the claims process incredibly difficult, both emotionally and logistically – it involves things like acquiring official school transcripts from schools that have long since closed – and to hear that many wouldn’t be eligible in the end was a gut punch.

“In isolated communities, you have no access to translation of the documents, to counselling if this brings up trauma, you have no help… Here in the small communities, all we have is each other. And I can tell you this is just going to open more wounds.”

Who is responsible?

Many news articles, academic work and government reports rely on the residential school lists, dates and information produced by compensation programs. But while these lists end at 1969, there is significant evidence that colonial violence continued at NWT schools well past the 1969 transfer of ownership.

Which raises the question: who should be held accountable for the legacy of harm that continued from 1970 until well into the 90s?

The biggest residential school sex abuse trials in Northwest Territories’ history covered incidents that took place from 1960 to 1979 at the Grollier Hall in Inuvik, and led to the conviction of four men.

The Truth and Reconciliation Commission said the last death of a child who died at a NWT residential school was in 1991.

In cases where institutions shared responsibility, accountability can be confusing.

A recent archival report produced by the territorial government which looked at the history of educational facilities in the NWT from 1861-2021 was ostensibly created for just this purpose: to “help identify which organizations were responsible for those facilities through time.”

But the fact that the GNWT was the one legally responsible for running all schools after 1969 wasn’t discussed in the report.

This transfer of ownership from the federal to territorial government was mentioned in two cases: Fort Macpherson’s Fleming Hall and Délı̨nę’s Federal Day School. Nowhere in the report did the government acknowledge that this applied to all schools.

For example, the Wrigley Federal Day School is listed as running from 1958-1992, without mention of the territorial government.

Nevertheless: “It would have been transferred from the federal government to the GNWT in 1969-70 like all other schools were,” confirmed GNWT communications manager Briony Grabke in an email to Cabin Radio.

“The listing for Wrigley is like many others in the report as the tables show the physical facilities and when they were in use. For Wrigley, the building was operated federally from 1954 [sic] – 1969, the building was then transferred to the territorial government from 1969 – 1992.”

Grabke also stressed that the report drew from archives and academic reports rather than legal documents.

“The metrics for any federal legal actions or compensation programs are determined by lawyers and the affected parties. It is noted in the report’s preamble that metrics for deciding inclusion or exclusion in any proceeding could be different from the GNWT’s report listing.

“The department will be working on updating the document to make it more clear.”

Despite the fact that the GNWT says it shared the information it did “to support the work of reconciliation and healing within Indigenous communities,” Lennie doesn’t feel any closer to healing – he feels misled.

Lennie sees the confusion around responsibility as intentional.

“That’s hidden information they’re not divulging, this should all be public information,” he said. “Whether it’s about residential schools, days schools, sixties scoop… it’s all the same thing. There’s all these fancy words and no action. Do we really need to file lawsuit after lawsuit to get some acknowledgement? People gotta have some heart somewhere.”

While at least one lawsuit has been filed against the province of Manitoba by two day scholars, the path to justice for those who attended schools that were run by provincial and territorial governments is unclear.

Cabin Radio was unable to find any record of a formal apology from the GNWT in recognition of its role in the ownership and operation of Northwest Territories residential schools.

Former residential school students can call 1 (866) 925-4419 for emotional crisis referral services and information on other health supports from the Government of Canada.

The Hope for Wellness Help Line is also available to survivors 24 hours a day, 7 days a week for counselling and for anyone in crisis. Call the toll-free Help Line at 1 (855) 242-3310 or connect to the online chat.