The Band Reparations Class Action

Gottfriedson v. His Majesty the King in Right of Canada
(Court File No. T1542-12)

The Band Reparations Class Action is a lawsuit against the Government of Canada. The lawsuit is about the collective harm suffered by Indigenous communities as a group as a result of Indian Residential Schools. The lawsuit says that the Government of Canada is responsible for damages to Indigenous communities caused by the Indian Residential School system, and in particular, the collective harm suffered by Indigenous communities due to the loss of language and culture because of Indian Residential Schools.

This lawsuit is not about harms suffered by individual survivors who attended Indian Residential Schools – instead it is about the collective harm suffered by Indigenous communities as a group as a result of Indian Residential Schools.

This lawsuit was brought by representative plaintiff First Nations Tk’emlúps te Secwépemc and shíshálh Nation, with the support of the Grand Council of the Crees (Eeyou Istchee).

Band Class Members

325 Bands are part of the lawsuit; click here to see the full list of class members. In order to participate in the lawsuit, Bands were required to “opt-in” or “join” the lawsuit by the extended June 30, 2022 opt-in deadline. The opt-in period is now closed, and it is no longer possible to join the lawsuit.

The First Nations that are part of the lawsuit are:

Settlement

A settlement agreement has been reached between the Representative Plaintiff Bands and the Government of Canada, which fully and finally resolves the Band Reparations Class Action.

The settlement agreement needs to be approved by the Federal Court as being fair, reasonable and in the best interests of the class before it becomes final.

Each of the 325 First Nations that have joined the lawsuit and are class members have the right to make submissions to the court at the Settlement Approval Hearing about whether the proposed settlement is fair, reasonable and in the best interests of the class as a whole.

Proposed Settlement Agreement

Full Settlement Agreement

The key terms of the settlement agreement are:

  • The government of Canada will make a payment of $2.8 billion (the “Fund”) to a Trust/Not-For-Profit to fully and finally resolve the Band Reparations Class Action.
  • The Trust/Not-For-Profit will be responsible for prudently investing the Fund, and for distributing the Fund to the 325 class members to support the Four Pillar principles in accordance with the Disbursement Policy.
  • The Four Pillars are:
    • Revival and protection of Indigenous languages;
    • Revival and protection of Indigenous cultures;
    • Wellness for Indigenous communities and their members;
    • Promotion and protection of heritage.
  • The Disbursement Policy will include the following:
    • Planning funds: Each Band Class member will receive an initial one-time payment of $200,000 for the purposes of developing a plan to carry out one or more of the objectives and purposes of the Four Pillars;
    • Initial Kick-Start Funds: Upon receipt and review of a plan from a band, the Fund shall disburse the Initial Kick-Start Funds, which shall be equal to the Band’s proportionate share of $325 million, with 40% attributable for base rate, with the remaining 60% to be used to adjust for population. The base rate is an equal amount payable to each Band. The Board will determine an appropriate adjustment for remoteness for the Initial Kick-Start Funds, with any such funds required to account for remoteness being in addition to the $325 million;
    • Annual Entitlement: Each Band will receive a share of annual investment income that is available for distribution. That share will be equal to the Band’s proportionate share, adjusted for population and remoteness.
  • All monies that remain in the Fund after the payment of the Planning Funds and the Kick-Start Funds will be prudently invested by the Trust/Not-For-Profit in accordance with professional investment advice.
  • The Fund will operate for a period of 20 years.
  • For the 20 year life of the Fund, the Annual Entitlement payments will be made from the investment income earned from the Fund; the capital of the Fund will be maintained.
  • At the end of the 20 year life of the Fund, the remaining funds consisting of the capital of the Fund and any undisbursed investment income will be disbursed to the Class. Each Band’s share shall be equal to the Band’s proportionate share of the remaining funds.
  • The Trust/Not-For-Profit will be responsible for determining the Disbursement Policy, which will consist of a base rate, a population adjustment, and a remoteness adjustment. That formula will allocate 40% to base rate, and 60% to population and remoteness adjustments.
  • The Trust/Not-For-Profit will be governed by a board of nine Indigenous directors, eight of which will be selected through a process involving the Representative Plaintiff Bands, and, in the case of Regional Directors, the Class Members, and one of which will be chosen by Canada.
  • The Trust/Not-For-Profit will have regional representation.
  • In exchange for the benefits of the agreement, the Band Class members are deemed to agree to a release which will prevent them from bringing any legal claims in future against Canada regarding the collective harms caused to them by the creation and operation of Indian Residential Schools.
  • Lawyers’ fees and expenses incurred over the course of the lawsuit will be paid by the Government of Canada and will not be deducted from the compensation paid to the Band Class. Canada has agreed to pay for all legal fees and expenses. These fees and expenses must be approved by the court, and will be the subject of a fee approval hearing, which will take place immediately after the settlement approval hearing.

Settlement Approval Hearing

A settlement approval hearing will be heard by the Federal Court, located at 701 West Georgia Street, Vancouver BC V7Y 1B6, commencing on February 27, 2023 at 9:30 AM PDT for up to three days.

The hearing is open to the public and will be available to be viewed via real-time webcast. Access details will be posted here when they become available.

The Federal Court judge will decide whether to approve the settlement agreement. The test that the judge will apply is whether the settlement is fair, reasonable, and in the best interests of the Class Members. The judge will consider the entire settlement agreement all together as a complete package. The judge is not allowed to pick and choose which parts of the settlement to approve or not approve.

Band Class Members have the right to participate in the settlement approval process by telling the Court whether the settlement agreement should be approved or not, and whether the settlement agreement is fair, reasonable and in the best interests of the class.

Band Class Members can participate by making written submissions in advance of the hearing, oral submissions at the hearing, or both. Written or Oral Submissions must be made by individuals authorized to speak on behalf of their Band.

Written Submissions

Written Submissions must include the name of the Band Class Member, contact information, confirmation that the person making the submission has the authority to speak on behalf of the Band, a statement that the Band supports or objects to the proposed settlement, and the reasons for the Band’s position.

Written statements should be no more than 10 pages in length. Written statements can be sent by by email, mail, or fax, and must be received by February 20, 2023 at 11:59 PM PDT at:

Waddell Phillips Professional Corporation
Att’n: Band Reparations Class Action
36 Toronto Street, Suite 1120
Toronto, ON M5C 2C5
bandclass@waddellphillips.ca
Fax: 416-477-1657

Oral Submissions

Band Class Members wishing to make oral submissions at the Federal Court in Vancouver on February 27, 2023 must register in advance by sending a request to bandclass@waddellphillips.ca by February 20, 2023 at 11:59 PM PDT.

Individuals making oral submissions must be authorized to speak on behalf of a Band Class Member.

Oral submissions can be made in person in court in Vancouver, BC, or remotely via video conference. Please indicate whether you wish to participate in person, or virtually.

Class Counsel

Class Counsel in this lawsuit are:

Peter R. Grant
Peter Grant Law Corporation

John K. Phillips
Waddell Phillips Professional Corporation

Diane Soroka
Diane Soroka Avocate Inc.

Contact

Phone: 1-888-370-1045 (toll-free)
Fax: 416-477-1657
Email: bandclass@waddellphillips.ca
Att’n: Band Reparations Class Action
36 Toronto Street, Suite 1120
Toronto, ON
M5C 2C5