Trust. Integrity. Reputation.
AFN
launches class action lawsuit
Windspeaker:
September 6, 2005 - page 8.
By
Paul Barnsley
Senior Writer
OTTAWA: National Chief Phil Fontaine called a press conference on
Aug. 4 to announce
the Assembly of First Nations (AFN) would
launch a class action lawsuit against the
federal government on behalf of residential school survivors.
The
statement of claim was filed with the Ontario
and Alberta courts the next day.
AFN
sources say the announcement
came just days after a letter was received
from the ministry of Justice stating
there would be no guarantee the AFN would play a central role in the implementation
of the federal government’s compensation
plan for school survivors, no matter what
it may have said in the political accord signed by the national chief and Deputy Prime Minister
Anne McLellan in May.
There was no mention of that letter during the press conference. Sources close to the
Fontaine administration say the national chief does not believe it is in the best
interests of survivors to take on the government directly in public. The national chief passed up several opportunities to criticize the
government. Instead, he repeated a few key
talking points throughout the press
conference.
“We have filed a class action suit because we want to secure a place at the table,” Fontaine said. “We want to establish some certainty in the process, that the views of the Assembly of First Nations will be considered as an essential matter in whatever agreement is concluded.”
It
appears, based on the number of times the national chief mentioned the
need to “secure a place at
the table” and that the AFN’s views must be considered “essential” or “central,”
that there might be some doubts as to
whether that’s what will happen.
But when questioned about this, he
stayed away from suggesting he anticipated
trouble.
He
was asked if the lawsuit shouldn’t be
interpreted as a sign there’s a lack
of trust in the federal government.
“No,” he replied. “This is really about ensuring that higher
degree of certainty that commitments that
were made are considered in the
same light that we are considering them.”
Fontaine admitted the AFN did not have rock solid, unquestioned status as a stakeholder in the current ‘negotiation process that will lead to an eventual compensation plan. He said the lawsuit was designed to remedy
that.
“We
want to go beyond consultation. We actually
want to be engaged in the negotiations around
all of the elements around this issue. We’re not convinced that our
place at the table is as secure as other
interests at the table and we felt that we had to do this,” he said.
The national chief said the AFN lawsuit
would be seeking $12 billion. The people
making up the class include all
living survivors and all all First Nation
community members.
Fontaine, who will be one of the
representative plaintiffs in the action,
estimated that would involve close to 750,000 people.
“We’re taking about the people I represent, First
Nations’ people, as well as other Aboriginal people we wish to invite to this
process,” he said.
While there has. often been controversy
about just how representative the AFN is – some say that it is only the lobbying presence in Ottawa for the
more than 600 chiefs across the country who represent the true First Nation governments – Fontaine claimed he represents all First
Nations people.
“We negotiated the agreement with the federal government. By ‘we’ I mean the Assembly of First Nations. There are a number of significant
commitments in the political agreement and we believe that those commitments will be honored by the federal
government,” he said. “As you know, they’re
represented in this process by Mr. Justice Frank Iacobucci. The Assembly of First Nations is not the only party at the table. There are other interests represented at the table. We are the only party that represents
government. The political agreement that was
concluded on May 30 was government to government. The Assembly of First Nations representing First Nations
governments and the federal government.”
One might have expected the legal community to be angry about the AFN
lawsuit, which could be seen as an
intrusion into their jurisdiction. But Calgary lawyer Vaughn Marshall,
who said he was speaking on behalf of his clients – 620 claimants from the Blood and Peigan reserves – and not as an official spokesman for the consortium of lawyers
involved in the Baxter class action, criticized the AFN decision to litigate based on the idea that it represented the interests of chiefs rather than all First Nation citizens. Marshall has been
involved in residential school litigation
since 1997. He is also involved in
the Baxter class action. He said his clients just don’t see the AFN as
their representative.
Compensation scrap begins (Continued from page 8)
“The AFN is not and has never been the representative of grassroots Aboriginal people in this country. The AFN is a lobby group that represents the interests of band leaders, not the voices of ordinary Aboriginal people,” Vaughn Marshall said in an unsolicited email message to this publication.
Marshall said the AFN “wants to butt in to the court system at the last minute and apparently exploit the work of the lawyers and the decades of work they have collectively put into the residential school lawsuits.”
“The AFN seems to want to play the central role in resolving the legal cases with the federal government, yet, ironically, the AFN looks to this very same government to provide it with the funding it needs to exist,” he added.
The lawyer said the newly filed class action is likely to cause problems, not create solutions, and “will directly interfere with what the grassroots Aboriginal victims want most, prompt settlement. The class action is disruptive and is unlikely to be approved by, the court and the AFN’s proceeding with its class action in the face of these obstacles will surely cause serious delay, exactly what the grassroots victims do not want.”
He argued that the survivors do not want their compensation money diverted in any way to programs or administration.
“The money must go directly to survivors and not he diverted into the funding of programs – programs that are likely to never benefit the victims who were abused in the boarding schools. Every dollar in settlement monies that goes towards funding a program means less money for the victims who are entitled to being directly paid money damages for the abuse they suffered in these schools,” he said.
The objections of lawyers, who in some cases stand to make up to 40 per cent of any final court settlement, will be scrutinized with some suspicion. But individual survivors have repeatedly told the national chief he doesn’t speak for them.
“I’m saying that they don’t represent me,” said Ray Mason.
Mason lives on the Peguis territory in Manitoba. He is chairman of Spirit Wind, a Manitoba organization of residential school survivors. He is also on the board of the national survivors’ organization. As a member of the two groups, he said he is line for two meetings with the federal government’s representative over the next few weeks.
Mason said Frank Iacobucci “has sent us a letter of acknowledgement and he looks forward to meeting with us and discussing various options of what we thought the compensation should be.”
The numbers put forward by the AFN will not be what the survivors put forward at those meetings.
“Were not in total agreement with the 10 and three [$10,000 lump sum, plus $3,000 per year in the schools] because each claim is different. A lot of our Elders here in Manitoba are extremely upset with the 10 and three. That’s simply because there were no grassroots people having any input in the process,” Mason said.
He called the AFN proposal “the absolute lowest it should get.”
“What we’re recommending is a formula of $25,000 [lump sum payment] plus $10,000 [for each year in the schools]. We think Iacobucci should work between those two numbers,” he added.
Mason said he doesn’t trust the deputy Prime Minister Anne McLellan. He pointed out that she vehemently supported the government’s alternative dispute resolution process before the standing committee on Aboriginal Affairs and said the government had no plans to change tactics just weeks before she announced the deal with the AFN to do just that.
“I never did have any faith in Ms. McLellan because of the remarks she made at the standing committee,” said Mason.
And he strongly agrees with Marshall that there is a serious disconnect between the First Nation leadership and the grassroots people.
“I totally agree with that because, if anything, AFN should be reaching out and calling for participation from the grassroots people and they’re not doing that. It seems like they want to take over the process because there’s money there all of a sudden,” he said.
Mason’s point of view is not the only one. Another national survivor’s group board member, former chief Ted Quewezance, said the AFN class action gives survivors one more option and that’s a good thing. He said too many lawyers have amassed sizeable client lists and are not doing an adequate job of representing the survivors.
“With all the questions about who speaks for First Nations and what the status of the AFN is in these crucial negotiations, Windspeaker sent a long list of questions co Anne McLellan’s office seeking to get clarification on how the minister and her government view the AFN. None of the questions were dealt with directly.
“I think the government’s commitments to the AFN to ensure they are at the centre of the process have been clear. in terms of what we have committed to do, it is in black and white in the documents released,” said Alexander Swann, spokesman for McLellan.
Paul Barnsley
Senior Writer