Interview with Daniel Ish, Chief Adjudicator, Indian Residential Schools Adjudication Secretariat
CBC RADIO YELLOWKNIFE PROGRAM: THE TRAILBREAKER
(transcript)
JANUARY 22, 2009
RANDY HENDERSON (Host): It's been over three months since the Justice Harry LaForme stepped down from the Truth and Reconciliation Commission, and it's still not sure when the commission will be back on track. But another part of the residential schools settlement deal has been moving ahead. Victims of physical and sexual abuse are coming forward with their stories. They're being heard by adjudicators as part of the Independent Assessment Process. So far, more than 8,000 claims have been filed and about 1,400 have already been dealt with. The chief adjudicator is Daniel Ish. He joins me on the line to talk about how this process works.
Good morning Mr. Ish.
DANIEL ISH (Chief Adjudicator, Independent Assessment Process): Good morning Randy.
HENDERSON: I think some former students must be wondering about the people who get to decide on these claims. Tell me a bit about these adjudicators.
ISH: Well, we have approximately 80 adjudicators from across the country. They're all lawyers. They're all lawyers who have been at the bar for at least five years and they're all people who have been involved in some type of adjudication process before, either as, some are ex-judges, some have been labour arbitrators, some have been human rights adjudicators. And they all have some knowledge of aboriginal communities and aboriginal culture.
HENDERSON: Now, the first step former students have to go through is to apply and see if their claim qualifies for this process. What kinds of claims would not fit the bill?
ISH: I'm going to answer your question a little bit backwards. The process is designed to cover claims for serious physical abuse and all sexual abuse. So, a claim, for instance, that would be for loss of language, loss of culture, alienation from a family would not qualify for admission into the process.
HENDERSON: So if a former student's claim is going to be heard, can you briefly tell us what the process is?
ISH: There's an application that has to be filled out, a written application. And students fill that out, sometimes with the assistance of others, or if they're represented by a lawyer, the lawyer would assist them with that. And then an initial determination is made as to whether or not on the face of the application, whatever is said there, would, would fit into the program in the sense that whatever is alleged would be compensable. If it isn't, then the application is rejected. If it is, it comes into the process. And then a great deal of research is done, because normally an alleged perpetrator would be named. There's research done on that person. There's research done on the school records of the student, of the former student. If there's allegations of harm, there'll be research done with respect to medical records and the like. And when all of that is done, the case is set down for a hearing before one of our adjudicators.
HENDERSON: Can this happen in the claimant's home community?
ISH: We try to allow the claimant as much input as possible into where they, they want their hearing. And the answer is yes. If they want it in their home community, it would occur there. In fact, many have occurred in people's homes, particularly if the former student is elderly or ill. Sometimes they don't want them in their home community for confidentiality reasons.
HENDERSON: Now, in some cases students may be making claims against someone who's still alive. Do the accused in these kinds of cases usually appear?
ISH: The, the person named, if they're still alive, are contacted and they have an opportunity to appear, but they don't, they're not required to because the adjudicators don't have the authority to compel appearances. Some do. Some don't. The more elderly often will not. If the person is not so elderly, they often will appear.
HENDERSON: Is it kind of like a court or is it less informal (sic) than that?
ISH: It's less formal than, than a court. One of the main differences is that the adjudicator does all the questioning of the, of the former student. And while there will be lawyers in the room, both for Canada as defendant and for the former student often, they sit, they sit there and they can suggest lines of questioning to the adjudicator. But it's the adjudicator who, who carries out the questioning. And so what you don't have, what makes it profoundly different than a court, you don't have a person being cross-examined by the lawyer from the other side.
HENDERSON: You've adjudicated claims. What's it like, you know, to see the process unfold, and you know, what effect does it have on former students?
ISH: For the most part, in my experience, and I've done many of them, approximately 100 I suppose, in both the former DR process and something that preceded that, I would say in about 80 percent of the cases it's a tremendous feeling of relief for the former students. It's also a validation that telling their experiences to someone in authority and I use that word sort of cautiously but somebody who can actually do something about it really validates their, their sense of where they were in the experiences that they had. And many of them find it very positive. There's a small group that are very unhappy when they come in and still are unhappy when they leave.
HENDERSON: Who determines the amount of compensation and how do they make that decision?
ISH: The adjudicator makes that determination. And it's according to a set of rules that were agreed upon in what's called a settlement agreement. It was agreed upon by representatives from the former students, from Canada, the churches, AFN and a group of lawyers that represented claimants. So there's kind of a grid and there's a fair amount of discretion within that. But there are a set of rules that are set up.
HENDERSON: It must be difficult for some students to come forward with their stories. It's also difficult to hear these accounts of abuse and neglect. Does the process include any support for students?
ISH: It does. There's both informal and formal support. A former student at the hearing can have support people with them, which is often family members. It could be a spouse or a child or a friend. And also what is offered to them is support of, of social workers or counsellors to be with them from Health Canada to assist them through some of the difficult, difficult experiences that, that they may have.
HENDERSON: Just to wrap it up Mr. Ish, what would you say to people who think they may have a claim but are hesitating to come forward?
ISH: They can do a couple of things. There's an information line that they can, they can call I don't have the number on my fingertips or they could seek out a lawyer who could do the work for them. And the lawyers' fees are paid partly by Canada and partly by a claimant and would only be paid if there was a successful claim.
HENDERSON: Thank you very much for joining us.
ISH: Thank you Randy.
HENDERSON: Daniel Ish is the chief adjudicator with the Indian Residential Schools Adjudication Secretariat. It was set up to deal with claims of sexual and physical abuse as part of the residential schools settlement.
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