Notices to Counsel
Administrative split and deadline for requests for judicial recourse regarding IAP re-review decisions
February 3, 2017
One year ago, I placed a number of Independent Assessment Process (IAP) claims on hold after the Minister of Indigenous and Northern Affairs instructed her officials to conduct an urgent review of administrative splits. The administrative split issue affected the outcome of some claims in the IAP when Canada began to raise jurisdictional arguments to some claims in 2010, arguing that it was not required to compensate for abuse that occurred in classrooms that had ceased to be part of the residential schools for which they were responsible. This led to inconsistencies in how similar claims were resolved depending on when they were dealt with.
The terms "administrative split" and "years of operation" have sometimes been used interchangeably. The more precise use of "Administrative split" refers to situations where the classroom part of an Indian Residential School was removed from the direct control of those who managed the residence. This happened at a number of Indian Residential Schools beginning in the 1960s.
This differs from the jurisdictional arguments raised by Canada in cases where abuse occurred after the residence had ceased to operate, sometimes described as "years of operation". IAP cases involving both types of jurisdictional arguments by Canada were put on hold while Canada conducted its review, on a school by school basis.
This week we learned that Canada has indicated that it will address IAP claims affected by the administrative split. Canada has determined that this will impact about 200 claims and 22 schools. Canada has now provided the Secretariat with file numbers for in-progress claims that are currently on hold because of the administrative split. I look forward to receiving further information on the mechanisms it intends to use to resolve them.
I am pleased that former students whose claims are on hold will soon receive the answer they need and deserve. This will also allow them to consider their options if they are dissatisfied with the outcome of their claims.
I will release the hold on all claims related to the administrative split/years of operation issue in 30 days (March 6, 2017). This will give Canada time to advise claimants (and the Indian Residential Schools Adjudication Secretariat) how it intends to address these issues. The hold on certain claims may be maintained if Canada notifies the Secretariat that it intends to resolve them.
For claimants who have received an unsuccessful re-review decision because of the administrative split or for any other reason, it is important to note that the deadline for submitting a Request for Direction (RFD) for judicial recourse challenging that re-review decision is February 27, 2017. This deadline was established by the Supreme Court of British Columbia in a decision on November 29, 2016. For further information on this decision, please consult Supreme Court of British Columbia sets timelines for judicial recourse in respect of decisions of IAP adjudicators.
Independent Assessment Process