AFN launches class action lawsuit.

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."

[ILLUSTRATION OMITTED]

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."

[ILLUSTRATION OMITTED]

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 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.

[ILLUSTRATION OMITTED]

"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 lacobucci. 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.

"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 e-mail 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 be 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.

"We're 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 to 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.

By Paul Barnsley

Windspeaker Staff Writer

OTTAWA