[1] The parties ask the Court to approve the Settlement Agreement reached in this long-standing class proceeding, seeking reparations for the loss of language and culture caused to Indian Bands by the Residential Schools system. The purpose of the Settlement Agreement is outlined as follows at clause M:

The Parties intend there to be a fair and comprehensive settlement of the claims of the Band Class that aligns with Canada’s desire to ensure funding to support healing, wellness, education, heritage, language, and commemoration activities and which promotes the Four Pillars developed by the Representative Plaintiffs:

a. Revival and protection of Indigenous languages;

b. Revival and protection of Indigenous cultures;

c. Protection and promotion of heritage; and

d. Wellness for Indigenous communities and their members.

[2] With the consent of the Defendant Canada, the Representative Plaintiffs ask the Court to approve a settlement that has been reached for the benefit of the 325 Band Class members from across Canada who chose to opt-in (i.e. join) to this class proceeding.

[3] The Settlement Approval Hearing was held in-person in Vancouver, British Columbia on February 27 and 28, 2023. This hearing was also broadcast virtually via Zoom to allow Band Class members to observe and speak to the Settlement Agreement if they wished. The Court heard from a number of representatives of Band Class members both in-person and virtually.

[4] This settlement has overwhelming support from the Representative Plaintiffs, who have been involved in the litigation throughout. Many other Band Class members also expressed support for the settlement. Class Counsel and legal counsel for Canada both noted that neither had seen such unanimous support for a class action settlement proposal before in their careers.

[5] The only objection and concern expressed regarding the settlement related to the wording of the release in the Settlement Agreement. I will specifically address this issue below.

[6] For the reasons that follow, and despite the objection to the release language, I am satisfied that the settlement is fair, reasonable, and in the best interests of Band Class members. The Settlement Agreement is therefore approved.

II. Background

[7] In 2015, the Truth and Reconciliation Commission concluded:

For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide”.

Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, page 1.

[8] In 2010, Chief Gottfriedson and Chief Feschuck took action to advocate for the rights of Day Scholars and First Nation communities who had been excluded from the previous Residential School settlements. They composed a legal team and in August 2012, filed this class proceeding.

[9] In what has proven to be a visionary move, a claim was advanced for the loss of culture and language rights of Indian Bands who either had a Residential School in their community or had members of their community who attended a Residential School between 1920 and 1997.

[10] Following a contested certification hearing, on June 18, 2015, Justice Harrington certified this action as a class proceeding for the benefit of three classes: the Survivor Class, the Descendant Class, and the Band Class (Gottfriedson v Canada, 2015 FC 706 and Gottfriedson v Canada, 2015 FC 766 [Certification Order]).

[11] In keeping with the Calls to Action outlined in the Truth and Reconciliation Report, Canada’s litigation strategy evolved. In the spirit of reconciliation, the parties undertook intensive settlement negotiations in 2019.

[12] In June 2021, the parties negotiated a settlement of the Survivor Class and Descendant Class claims. On September 24, 2021, the Court approved the settlement agreement between Canada and the Survivor and Descendant Classes for the loss of culture and language suffered by those who attended Residential Schools as Day Scholars between 1920 and 1997 (Tk'emlúps te Secwépemc First Nation v Canada, 2021 FC 988).

[13] This partial settlement of the class proceeding left the Band Class claim unresolved and the parties pressed forward with litigation.

[14] Band Class members were required to opt-in to the class action lawsuit. The deadline for Band Classes to opt-in was June 30, 2022, by an Order of June 15, 2022 (unreported). There are 325 Band Class members. The Band Class members list is found in Schedule C of the Settlement Agreement which was amended to remove a duplicate entry by an Order of January 21, 2023 (Tk'emlúps te Secwépemc First Nation v Canada, 2023 FC 106 [Notice Order]). The corrected Band Class members list is attached to the Order dated January 21, 2023.

[15] The Common Issues Trial for the Band Class claims was scheduled to begin on September 12, 2022, and continue for 48 days. The claim was bifurcated, with the damages phase of the Trial to proceed at a later date.

[16] At the Trial’s opening on September 12, 2022, the parties requested a brief adjournment and on September 20, 2022, the Trial was adjourned sine die to allow the parties to pursue settlement negotiations.

[17] On January 18, 2023, the parties signed the proposed Settlement Agreement of the Band Class claims.

[18] On January 21, 2023, the Court approved the Notice Plan [Notice] for the distribution to Class members of the proposed Settlement Agreement and the Settlement Approval Hearing, scheduled to begin on February 27, 2023 (Notice Order).

[19] This Notice was sent to the administrative and political offices of each of the 325 Band Class members. Class members were given until February 20, 2023 to deliver statements of support or objection to Class Counsel.

III. Settlement Approval Hearing

[20] The following Affidavits were filed in support of this Motion:

Affidavit of Peter Grant, co-Class Counsel, sworn on February 20, 2023;
Affidavit of Chief Shane Gottfriedson, former Chief of Tk’emlúps te Secwépemc Indian Band, Representative Plaintiff for the Band Class, affirmed on February 21, 2023;
Affidavit of Chief Garry Feschuk, former Chief of shíshálh Nation, formerly known as the Sechelt Indian Band, Representative Plaintiff for the Band Class, affirmed on February 20, 2023;
Affidavit of Dr. Matthew Coon Come, former Grand Chief of the Council of Crees (Eeyou Istchee), affirmed on February 20, 2023;
Affidavit of Jeanine Alphonse, law clerk at Waddell Phillips Professional Corporation, co-Class Counsel, affirmed on February 22, 2023; and
Affidavit of Garima Dwivedi, Assistant Deputy Minister of the Resolutions and Partnerships Sector, Department of Crown-Indigenous Relations and Northern Affairs Canada, affirmed on February 23, 2023.

[21] The Court also received written submissions from the following Band Class members prior to the Settlement Approval Hearing: Elsipotog First Nation, Star Blanket Cree Nation, Taku River Tlingit First Nation, and Tootinaowaziibeeng Treaty Reserve #292, who all expressed support for the settlement.

[22] At the Settlement Approval Hearing, Neskonlith Indian Band, Penelakut Tribe, and Ermineskin Cree Nation provided written statements. Class Counsel also informed the Court of communications received from Nisichawayasik Cree Nation and Nekaneet First Nation in support of the Settlement Agreement.

[23] On February 21, 2023, shortly before the Settlement Approval Hearing, Wauzhushk Onigum Nation (Rat Portage) #153 [Wauzhushk Onigum Nation] filed a Motion seeking an amendment to the Certification Order to allow them to exercise the option to opt-out of the Settlement Agreement within 12 months. Wauzhushk Onigum Nation also opposed the settlement based on the language of the release and the lack of an opt-out provision at the settlement stage. This Motion and the objection were withdrawn by legal counsel for Wauzhushk Onigum Nation during the Settlement Approval Hearing.

[24] During the Settlement Approval Hearing, the Court heard oral submissions from the following representatives for Band Class members:

Former Grand Chief Dr. Matthew Coon Come, Grand Council of the Crees
Former Chief Shane Gottfriedson, Tk'emlúps te Secwépemc
Former Chief Garry Feschuk, shíshálh Nation
Kúkpi7 Rosanne Casimir, Tk'emlúps te Secwépemc
Chief Michael Starr, Star Blanket Cree Nation
Kukpi7 Irvin Wai, Neskonlith Indian Band
Councillor Joan Manuel-Hooper, Neskonlith Indian Band
Chief Cody Thomas, Enoch Cree Nation
Chief Greg Gabriel, Penticton Indian Band
Councillor and former Chief Craig Makinaw, Ermineskin Cree Nation
Collin Wildcat, Ermineskin Cree Nation
Alice Morgan, Hagwilget Village
Robert Sam, Penelakut Tribe
Bonnie Missens K.C., Pasqua First Nation
Oliver Pulleyblank, legal counsel for Wauzhushk Onigum Nation
Chief Ramona Sutherland, Constance Lake First Nation
Chief Michelle Edwards, Cayoose Creek Indian Band

IV. Terms of the Settlement Agreement

[25] Canada will pay $2,800,000,000.00 [the Fund] to fully and finally resolve the Band Class claims, pursuant to paragraph 24.01 of the Settlement Agreement.

[26] By way of overview, the opening paragraphs of the Settlement Agreement state:

A. Canada and certain religious organizations operated Indian Residential Schools in which Indigenous children, their families, and communities suffered harms.

B. Two primary objectives of the Indian Residential Schools system were to remove and isolate Indigenous children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture.

C. The consequences of the Indian Residential Schools system were profoundly negative, and this system has had a lasting and damaging impact on Indigenous survivors, their families, and communities.

[27] The objectives of the settlement are noted in clause M, which set out the Four Pillars of the Settlement Agreement:

a. Revival and protection of Indigenous languages;

b. Revival and protection of Indigenous cultures;

c. Protection and promotion of heritage; and

d. Wellness for Indigenous communities and their members.

[28] The objectives of the settlement will be facilitated by the creation of an Indigenous led and Indigenous controlled not-for-profit entity:

21.01 After the signing of this Agreement, but before the Implementation Date, the Plaintiffs will cause to be incorporated a not-for-profit entity under the Canada Not-for-profit Corporations Act, SC 2009, c. 23, or analogous federal legislation or legislation in any of the provinces or territories (the legislation pursuant to which the not-for-profit entity is incorporated, including any amendments thereto or replacements thereof, is herein referred to as the “Governing Corporate Statute”) to act as trustee of the Trust.

21.02 The not-for-profit entity will be independent of the Government of Canada.

21.03 The not-for-profit entity will have as its purposes the Four Pillars, which are described in more detail in Schedule F.

[Emphasis in original].

[29] The not-for-profit entity will establish a trust fund [Trust], which is outlined in sections 22.01-22.03 as follows:

22.01 The not-for-profit entity will establish a Trust and as trustee under the Trust, the not-for-profit entity will receive, hold, invest, manage, and disburse the Fund for the benefit of the Band Class Members in accordance with this Agreement, the terms of the Trust as set out in a written trust agreement signed by the not-for-profit entity to indicate its acceptance of the Trust and the duties and obligations of trustee, and in accordance with the Investment Policy and Disbursement Policy attached as Schedules D and E.

22.02 The not-for-profit entity shall be the sole trustee of the Trust.

22.03 The duties and responsibilities of the directors of the not-for-profit entity will be:

a. to establish the Trust;

b. to invest the Fund having regard to the Investment Policy;

c. to disburse the Fund to Band Class Members in accordance with the Disbursement Policy; …

[30] The not-for-profit entity will be responsible for distributing the Fund to the Band Class members in accordance with the Disbursement Policy, set out in Schedule E of the Settlement Agreement.

[31] The Disbursement Policy sets out the entitlement of each Band Class member under the Settlement Agreement. Each Band Class member is entitled to the following disbursements:

a. Planning Funds: Upon receipt of the money provided for in this Agreement, the Trust will disburse an initial amount of $200,000 to each Band for the purposes of developing a plan to carry out one or more of the objectives and purposes of the Four Pillars;

b. Initial Kick-Start Funds: Upon receipt and review of a plan from a Band, the Trust shall disburse the Initial Kick-Start Funds, which shall be equal to the Band’s proportionate share of $325,000,000, 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 $325,000,000, and taken from capital.

c. Annual Entitlement: Each Band will receive a share of annual investment income that is available for distribution. Each Band’s Annual Entitlement will be based on the Disbursement Formula. The Trust may, at its discretion, choose not to disburse all the income in any given year in order to ensure sufficient funding for years in which there is less income due to market conditions.

[Emphasis in original]

[32] If the Court approves the Settlement Agreement, Canada will be released from liability relating to the Band Class members’ claims in this class proceeding.

V. Issues

[33] The primary issue is whether the Settlement Agreement is fair and reasonable. The only objection to the settlement relates to the release language. I will address this issue first.

VI. Analysis

A. Release Provisions in the Settlement Agreement

[34] As noted, the only objection or concern raised was in relation to the release language used in the Settlement Agreement. Both Wauzhushk Onigum Nation and Constance Lake First Nation objected to the scope of the release language, although Wauzhushk Onigum Nation withdrew its objection at the Settlement Approval Hearing. The concern about the release language arose in the face of the ongoing and devastating discovery of unmarked graves and burial sites at former Residential School sites. The worry is that the release language may prevent future efforts to hold Canada to account for these tragic discoveries.

[35] This issue was top of mind to the parties as they worked out the terms of the settlement before the Court. I note that one of the Representative Plaintiffs – Tk'emlups Te Secwepemc Indian Band – was the site of Kamloops Indian Residential School, where the remains of 215 children were discovered in May 2021. This tragic discovery brought national attention to unmarked graves at former Residential Schools across Canada.

[36] The release provisions in the Settlement Agreement state:

27.01 Each Band Class Member (“Releasor”) fully, finally and forever releases His Majesty the King in Right of Canada, its servants, agents, officers and employees, from any and all actions, causes of action, common law, international law, Quebec civil law, and statutory liabilities, contracts, claims, and demands of every nature or kind and in any forum (“Claims”) available against Canada that were asserted or could have been asserted in relation to those asserted in the Second Re-Amended Statement of Claim regarding the purpose, creation, planning, establishment, setting up, initiating, funding, operation, supervision, control and maintenance of Residential Schools, the obligatory attendance of Survivors at Residential Schools, the Residential Schools system, and/or any Residential Schools policy or policies (the “Release”) and all such claims set out herein are dismissed on consent of the Parties as if determined on their merits.

27.02 For greater clarity, and without limiting the forgoing, the Claims do not relate to, or include any claims regarding, children who died or disappeared while in attendance at Residential School.

27.03 For greater clarity and without limiting the foregoing, the Release does not settle, compromise, release or limit in any way whatsoever any claims by the Releasors, in any other action, claim, lawsuit, or complaint regarding a declaration of Aboriginal or Treaty rights, a breach of Aboriginal rights, a breach of Treaty rights, a breach of fiduciary duty, or the constitutionality of any provision of the Indian Act, its predecessors or Regulations, other than claims related to the purpose, creation, planning, establishment, setting up, initiating, funding, operation, supervision, control and maintenance of Residential Schools, the obligatory attendance of Survivors at Residential Schools, the Residential School system, and/or any Residential Schools policy or policies as set out in Section 27.01.

27.04 Except as provided herein, this Settlement Agreement does not settle, compromise, release or limit in any way whatsoever any claim by the Releasors against any person other than Canada. For greater clarity, and without limiting the foregoing, the Release cannot be relied upon by any Third Party, including any religious organization that was involved in the creation and operation of Residential Schools.

27.05 If any Releasor makes any claim or demand or takes any actions or proceedings, or continues such claims, actions, or proceedings against other person(s) or entities in relation to the allegations, matters or the losses or injuries at issue in the Action, including any claim against Provinces, Territories, other legal entities, or groups, including but not limited to religious or other institutions that were in any way involved with Residential Schools, the Releasor will expressly limit their claims so as to exclude any portion of loss for which Canada may be found at fault or legally responsible for, or that Canada otherwise would have been liable to pay but for this Release.

27.06 Canada may rely on this Release as a defence to any lawsuit by the Releasors that purports to seek compensation from Canada for anything released through this Agreement.

27.07 Each Releasor is deemed to have agreed, warranted, and represented that it is the holder of the collective rights to whom the duties are owed on behalf of their respective communities as asserted in the Second Re-Amended Statement of Claim.

27.08 Canada may rely on this Agreement as a defence in the event that any other individual, group, or entity (“Third Party”) pursues any action, claim, or demand for the claims or losses released by this Agreement and asserts that it, and not any Releasor, is the proper holder of the collective or community rights, is the community entity to whom the asserted duties were owed, or holds the authority to advance and release such claims, either because it is a sub-group within the Releasor entity or a larger entity to which the Releasor belongs, or is otherwise related, connected or derived.

27.09 If a court or tribunal determines that a Third Party, and not the Releasor, is the appropriate rights holder or otherwise owed the duties at issue, Canada may seek a set-off of the amounts paid to the Releasor through operation of this agreement.

27.10 The release provisions contained herein, revised as required for formatting only, will be included as terms of the Court Order approving the Settlement Agreement.

[Emphasis added].

[37] While section 27.02 specifically excludes any claims regarding children who died or disappeared while in attendance at Residential Schools, there was still concern that the release provisions are too broad.

[38] The Supreme Court of Canada recently provided direction on the interpretation of the scope of releases in Corner Brook (City) v Bailey, 2021 SCC 29 [Bailey]. The Supreme Court held “[t]here is no special interpretive principle that applies to releases” (Bailey at para 3). The Supreme Court held:

[35] Releases tend to have certain features that may give rise to careful interpretations. Contractual interpretation requires courts to give the words of a contract their ordinary and grammatical meaning, in a way that is consistent with the surrounding circumstances known to the parties at the time of contract formation: Sattva, at paras. 47-48. Sometimes the ordinary meaning of the words and the surrounding circumstances come into tension, and courts must decide whether to rely on the surrounding circumstances to refine the meaning of the words, or whether doing so would impermissibly overwhelm the words of the agreements, in which case the words must override: para. 57. This tension may more often arise when interpreting releases, for two reasons.

[36] First, as Cass observes, “A distinctive feature of releases is that they are often expressed in the broadest possible words”: p. 83 (footnote omitted). A general release, if interpreted literally, could prevent the releasor from suing the releasee for any reason, forever. While such a release may not be enforceable for other reasons (e.g., unconscionability), the circumstances may also often indicate that such extreme consequences are not what the parties objectively intended. As the Court of Appeal for British Columbia put it in Strata Plan BCS 327, “While releases signed in the course of a settlement of a dispute are often worded in a broad and general fashion, appearing to cover the end of the world, they must be considered in the context of the dispute”: para. 26. This context can serve as a limiting factor to the breadth of wording found in a release.

…

[43] Distinctions can be drawn between claims based on facts known to both parties (as in this case) and claims based on facts that were not known to both parties (as in Biancaniello). Such distinctions may be relevant when interpreting a release and assessing whether the claim at issue is the kind of claim the parties mutually intended to release. The ultimate question is whether the claim is of the type of claim to which the release is directed. This will depend on the wording and surrounding circumstances of the release in each case. Lord Bingham’s cautionary principle from Ali should be understood not as a rule of interpretation, but rather an observation as to the issues that releases will tend to give rise to given their subject matter. Any judicial tendency to narrow the meaning given to broad wording is not the function of any special rule, but rather a function of the context in which releases are given. Thus, the ordinary rules for contract interpretation set out in Sattva apply to releases as they do to other contracts.

[39] Specifically in the class proceeding context, the decision of the British Columbia Superior Court in Leonard v The Manufacturers Life Insurance Company, 2020 BCSC 1840 [Leonard] is instructive. In Leonard, an objection was raised arguing the release was too broad. In concluding the release did not “inappropriately forestall future claims” (at para 115), Justice Gomery noted, at paragraph 117:

I should observe that, so far as the class is concerned, the “Proceedings” are limited to the common issues. The release bars claims engaging the common issues, but not claims grounded in some other legal theory or cause of action, if there is any that could be advanced arising out of the same conduct. Such claims would not be claims grounded in “any conduct, act or omission which was or could have been alleged in the Proceedings”.

[40] Based upon Bailey and Leonard, the Court must consider the release language as against the surrounding circumstances including the claims advanced in the pleadings and the common issues certified. The language in the pleadings and the certified Common Questions informs the parameters and legal reach of the release provisions.

[41] Here, the release language in the Settlement Agreement is specifically crafted to only apply to the claims raised in the class proceeding. The claims are outlined in the Second Re-Amended Statement of Claim as:

2(i) … the damage or harm caused by the creation and implementation of Residential Schools and Residential Schools Policy to the educational, governmental, economic, cultural, linguistic, spiritual and social customs, practices and way of life, traditional governance structures, as well as to the community and individual security and wellbeing, of Aboriginal Persons.

…

27 The Class members have lost, in whole or in part, their traditional economic viability, self-government and laws, language, land base and land-based teachings, traditional spiritual practices and religious practices, and the integral sense of their collective identity.

[42] The Common Questions as certified by Justice Harrington in the Certification Order, in relation to the Band Class members, are as follows:

Through the purpose, operation or management of any of the Residential Schools during the Class Period, did the Defendant breach a fiduciary duty owed to the […] Band Class […] not to destroy their language and culture?
Through the purpose, operation or management of any of the Residential Schools during the Class Period, did the Defendant breach the cultural and/or linguistic rights, be they Aboriginal Rights or otherwise of the […] Band Class […]?

[43] During oral submissions, Class Counsel, Mr. Phillips confirmed that:

While 27.01 already, in my submission, would have captured that, in terms of not releasing those claims, 27.02 goes directly to the point because class action counsel, counsel for Canada, and the representative plaintiffs turned their minds specifically to that issue. And to use my phrase again for the second time, in a belt-and-suspenders way said is a matter of reinforcement no claim regarding or relating to missing or dead children is covered by the terms of the release 27.02.

For the same reason the churches and their liability, they were not part of this action. Early on a decision was taken to ensure that we could at least get -- during some people's lives, the lifetime, to the end of this case, the churches were not included. They were specifically excluded by the initial statement of claim. And our clients wanted to ensure that no release released the churches or could be taken to release the churches. And, again, well 27.01, given that the statement of claim was tailorized [sic] or what I would've -- what should have been called Gottfriedsonized, they remove reference to churches. That (inaudible) to 27.01 meant they were not going to be covered in any of that, but in 27.04 I believe it is -- 27.04. Again, belt-and-suspenders, we made sure on the instruction of our clients that that release would not cover or touch on the churches.

At the same time – and you'll see this at paragraph 60 of our submissions – one of our clients raised a concern about land claims. And again, our -- my view, 27.01, there's no land claim that could have arisen with respect to the claim as pleaded or which could have been pleaded in the context of what was there in the common issues of fact and law. But 27.03, belt and suspenders, was put in to make sure that no land claim could be compromised by the release.

[Emphasis added].

[44] Legal counsel for Canada, Mr. Henderson, also addressed this issue. As he noted, the parties negotiated the terms of the Settlement Agreement and carefully chose the language. At the Settlement Approval Hearing, Mr. Henderson expressly addressed the scope of the release and stated:

So let me say for the record and without qualification, that any other claim that may exist with respect to children who died or disappeared or with respect to unmarked graves or burial grounds, is not released in this settlement.

[45] In considering these surrounding circumstances, I am satisfied that the release provisions included in the Settlement Agreement do not release, impair, or otherwise restrict any claims that may be brought against Canada relating to unmarked graves or children who died or disappeared while attending Residential Schools.

[46] I accept that the release provisions were carefully crafted and will act as a bar to any claims based upon the same pleadings or the same common issues raised in this class proceeding. However, they will not act as a bar to claims grounded in another cause of action.

B. Is the Settlement Fair and Reasonable?

(1) Legal Principles

[47] Rule 334.29(1) of the Federal Courts Rules, SOR/98-106 provides that class proceedings may only be settled with the approval of a judge. The applicable test is “whether the settlement is fair and reasonable and in the best interests of the class as a whole” (Merlo v Canada, 2017 FC 533 at para 16 [Merlo]).

[48] The Court considers whether the settlement is reasonable, not whether it is perfect (Châteauneuf v Canada, 2006 FC 286 at para 7; Merlo at para 18). Likewise, the Court only has the power to approve or to reject the settlement; it cannot modify or alter the settlement (Merlo at para 17; Manuge v Canada, 2013 FC 341 at para 5).

[49] The factors to be considered in assessing the overall reasonableness of the proposed settlement are outlined in a number of cases (see Condon v Canada, 2018 FC 522 at para 19; Lin v Airbnb Inc, 2021 FC 1260 at para 22) and include the following:

Likelihood of recovery or success;
The amount of pre-trial work including discovery, evidence or investigation;
Settlement terms and conditions;
Future expense and likely duration of litigation;
Expressions of support and objections;
Presence of good faith and the absence of collusion;
Communications with class members during litigation; and,
Recommendations and experience of counsel.

[50] As noted in McLean v Canada, 2019 FC 1075 [McLean] at paragraph 68, in addition to the above considerations, the proposed settlement must be considered as a whole and it is not open to the Court to rewrite the substantive terms of the settlement or assess the interests of individual class members in isolation from the whole class.

[51] I will now turn to a consideration of these factors in relation to the proposed settlement in this case.

(a) Likelihood of Recovery or Success

[52] When this class proceeding was filed, the likelihood of the success was uncertain. The exclusion of the Survivor Class and Descendant Class claimants from the Indian Residential Schools Settlement Agreement [IRSSA] and the McLean settlement foretold Canada’s position on the viability of these claims. Then, the exclusion of the Band Class members from the settlement agreement reached on the Survivor Class and Descendant Class claims was yet another indication that the claims advanced would be a significant challenge to prove and would have to proceed to trial.

[53] This class proceeding raises novel and complex legal issues. None of the other class proceedings in relation to Residential Schools (IRSSA and McLean) addressed the concept of collective harm to the Indian Bands caused by the Residential Schools system.

[54] Class Counsel was in unchartered territory in advancing the claims on behalf of the Band Class members for loss of language and culture in relation to Residential Schools. Not only were there no comparator cases in Canada, but there were also no reported decisions addressing either collective claims or loss of language and culture claims in the Residential School context.

[55] Canada aggressively argued against certification, and after certification advanced a number of defences to the entire claim, including limitation defences. Following the settlement of the Survivor and Descendant Classes, Canada denied any breach of fiduciary duty to the Band Class members not to destroy their language or culture, and denied any breach of cultural or linguistic Aboriginal Rights.

[56] The passage of time and the historic nature of these claims is also a factor for consideration. Historic documentary evidence is difficult to amass. In order to succeed, the Plaintiffs had to demonstrate a uniform intent and pattern of conduct to intentionally extinguish Indigenous language and culture across Canada over a 77-year period by 23 different federal governments over 139 Residential Schools.

[57] According to Class Counsel, to their knowledge, this was the only action in Canada advancing a collective claim on behalf of Indigenous communities for harms suffered from Residential Schools. Advancing novel claims poses numerous challenges. There was no guarantee of success and the claim for damages presented a monumental challenge. Compounding this difficulty was the inherent challenge of litigating claims for historical wrongs.

[58] The Settlement Agreement provides certainty, recovery, and closure for the Band Class members. These results could not be guaranteed if the litigation were to proceed to trial.

(b) The Amount of Pre-Trial Work Including Discovery, Evidence or Investigation

[59] Canada aggressively defended the claim. Prior to certification, Canada brought a number of procedural motions, including a Motion to stay the action pursuant to section 50.1 of the Federal Courts Act, RSC 1985, c F-7 and a Motion to bring third-party claims against a number of church entities for contribution and indemnity.

[60] In 2015, the Certification Motion was contested by Canada, requiring a four-day hearing. Every aspect of the claim advanced on behalf of the Band Class members was in issue and fully denied by Canada.

[61] The September 2022 Common Issues Trial was scheduled when settlement negotiations were undertaken. The Court granted the parties a one-week adjournment the day the Trial was set to begin, September 12, 2022, to pursue settlement discussions. The parties were successful in their negotiations and sought to adjourn the trial sine die in the second week of scheduled Trial time.

[62] This case was ready to proceed to Trial when the parties reached what ultimately became the settlement. Documentary disclosure was complete with Canada having disclosed some 120,000 documents. Experts had been retained and reports were filed with the Court. Examinations for discovery in writing and orally had taken place. The parties had filed pre-trial briefs. Tremendous effort and work had been undertaken to prepare these unique claims for Trial.

[63] As the Case Management Judge, I was well aware of the work that had been undertaken to have this claim ready to proceed to Trial. The responses to the written examinations of the Defendant were provided shortly before Trial and left a number of issues unresolved. This necessitated Motions to potentially subpoena the Prime Minister and Minister Marc Miller to testify on public statements.

[64] Canada also filed objections to the expert evidence amassed by the Plaintiffs on the grounds that the evidence was not admissible or was irrelevant. Canada also challenged the qualifications and independence of some of the experts.

[65] As the parties were ready for Trial, Class Counsel was in a fully-informed position to understand the challenges and risks in proceeding ahead with the claims. This allowed Class Counsel to approach settlement discussions with a clear understanding of the challenges they would face in proving the asserted claims.

(c) Settlement Terms and Conditions

[66] An overview of the settlement terms and conditions are outlined above. The Settlement Agreement provides for the creation of a Trust to administer the $2.8 billion Fund. Each Band Class member will receive a one-time payment of $200,000. The Trust will disburse Kick-Start funds, equal to the Band’s proportionate share, adjusted for population and remoteness. Band Class members will also receive a share of annual investment income from the Fund, adjusted for population and remoteness.

[67] The Fund will operate for 20 years, after which the remaining funds will be disbursed to Band Class members based on proportionate shares.

[68] The Trust will be governed by a board of nine Indigenous directors [Board]. Band Class members will select eight board members and Canada will select one. The Board will have regional representation.

[69] The Settlement Agreement was designed to put control over the remediation of harms into the hands of Indigenous peoples. The top-down approach, where Canada determined the priorities, the funding available, and the approved uses for those funds, led to programs that were short term and ultimately unsuccessful. It was of considerable importance to the Representative Plaintiffs that the Trust be directed by Indigenous people and used to support initiatives chosen by the Class members themselves. Indigenous autonomy over the origin and content of language and culture revitalization programs is essential.

[70] The distribution of funds based on a Band Class member’s population and remoteness is a novel and important feature of this Settlement Agreement. In the past, compensation for settlements of historic rights claims by First Nations have typically been calculated using the Nation’s population on the date the agreement was signed, but do not account for future increases in population. This has been a significant point of contention for First Nations in negotiating settlements with Canada and continues to affect how settlement funds are subsequently dispersed to the Nation’s members. The approach adopted in this Settlement Agreement reflects attempts to learn from past experiences and design a Settlement Agreement that is better tailored to the Band Class members’ long-term interests.

[71] This settlement is historic both in terms of the quantum of the settlement and its unique structure. As Canada remarked, the $2.8 billion settlement is not intended to put a value on the losses suffered by the Band Class members, as that is an impossible task. The $2.8 billion settlement is intended to help take steps to reverse the losses of language, culture, and heritage through the Indigenous led not-for-profit entity, who will determine how the Fund is to be allocated. In the words of Canada’s legal counsel, Mr. Henderson, this is a “no strings attached” settlement.

[72] To be clear, the Court could not have provided this type of relief to the Band Class members even if they had been fully successful on all issues at Trial.

[73] The legal fees payable to Class Counsel, which is the subject of a separate Order of this Court, were negotiated after the proposed Settlement Agreement. The legal fees agreement is not conditional upon the Settlement Agreement being approved. This “de-linking” of the agreements is important as it ensured that the issue of legal fees did not inform or influence the terms of the Settlement Agreement. As well, legal fees are not payable from the settlement funds. Therefore, there is no risk of depleting the funds available to Class members.

(d) Future Expense and Likely Duration of Litigation

[74] The Common Issues Trial in the Band Class claim was scheduled to start in September 2022 and continue for 48 days. Following a decision on the Common Issues Trial, if necessary, the damages portion of the claim would have proceeded. The trial findings would have undoubtedly been appealed, and it is safe to presume, this litigation would have continued for another decade.

[75] Given the decade-long history of this action, as well as the novelty and scope of the claims, the future expense and duration of litigation should the Settlement Agreement not be approved is likely to be substantial and lengthy.

(e) Expressions of Support and Objections

[76] In addition to the written expressions of support, the Court heard from numerous Band Class representatives who spoke in support of this settlement. I wish to highlight a few comments.

[77] Grand Chief Dr. Matthew Coon Come, former Grand Chief of the Grand Council of Crees stated:

The settlement is the first time we have had recognition for the damage caused to us, not just as individuals but also as Nations. It recognizes the loss of our languages, our cultures, and our Nations’ ability to function as proud and healthy societies. The settlement will put First Nations in charge of their own healing, their own revival of languages and cultures in accordance with their own priorities. It will provide for a long-term system of funding for these priorities through a trust to be managed by First Nation representatives. This is historic.

[78] Chief Shane Gottfriedson, former Chief of Tk'emlups Te Secwepemc and Representative Plaintiff, acknowledged the people “who had their fingerprints all over this work” and told the Court:

… [E]ven though it says Gottfriedson and Feschuk v. Canada, it was never about me and it was never about Garry, it was about our people. It was about our people losing our language, losing our culture when they were taken to -- when they were told they had to go to Indian Residential School day scholars and they were taken from their homes. This is about them.

And this is probably one of the most difficult things in my life I have ever done. Because of the significance and the stories and the belief that our people wanted to be treated fairly, they wanted to be treated respectfully. And we wanted to right the wrongs and make them right.

So today, you know, this is a historic day for us First Nations because it allows us and our government to have decision making over our language, and our culture, and our heritage that was caused by Indian Residential Schools.

…

… [T]his is historic where First Nations have control over their language and culture, where they're going to step back and let us decide on what's best for our people. I believe that that's the right thing to do. I think that's the honorable thing to do.

Because I believe in our language, our culture, our way of life. And it's up to us. It ain't up to Canada to dictate what we should and how we should do it. We can do that there ourselves. We've always believed we could do that. Whether it's language or culture, whether it's education, whether it's health care, whether it's child welfare, whether it's settling our land claims, jurisdiction over our own businesses and our own affairs. It's about time Canada started stepping aside and letting us assume jurisdiction over our own business.

This is a long time coming. I'm glad I'm here today to be a part of hearing those words and I'm very, very honoured to be able to share what comes from my heart and my relations.

[79] Chief Garry Feschuk, former Chief of shíshálh Nation and Representative Plaintiff, spoke about this settlement being the beginning of the healing journey and he acknowledged that Canada is now walking with First Nations. In his words, “a huge layer of cultural genocide is going to unravel once this settlement is done” to make sure it never happens again. He explained that although he suffered significant health issues during this litigation, he “never lost [his] fight”.

[80] As noted by Councillor Joan Manuel-Hooper of Neskonlith Indian Band, the losses are hard to talk about and there is much hard work ahead, but they will do the hard work.

[81] Chief Cody Thomas of Enoch Cree Nation, along with his Council members and youth, spoke passionately about how the cycle needs to be broken and that communities must return to their roots.

[82] Chief Michael Starr of Star Blanket Cree Nation stated they have only one fluent speaker in their community, so preservation of their language will be a priority.

[83] Robert Sam of Penelakut Tribe explained how his community is still viewed as having had the “Alcatraz” of Residential Schools because Kuper Island was in his community. He says this has left a lasting stigma on his community.

[84] Some spoke about the opportunity to create future leaders. Many who spoke in support commented on how the loss of language has caused an intergenerational disconnect and a disconnect from the land. They say their language and culture are in a state of emergency. They spoke about how the funds provided by this settlement will provide their Nations with tools and resources to work on the Four Pillars and do some healing.

[85] It was acknowledged that the settlement represents hope for the future, hope for generations to come, and will help build future leaders.

[86] Many noted that this settlement represents Canada acknowledging that Residential Schools also caused damage at the First Nation community level. The structure of the settlement is described as giving the Band Class members complete control and jurisdiction over the revitalization of their languages and cultures. Class Counsel stated “[t]he need is for a generational solution,” because of the past generational harm.

[87] The Representative Plaintiffs, who have been involved in the litigation throughout, overwhelmingly support the settlement. Their support of the settlement is compelling. They have shouldered the burden of moving these claims forward.

[88] The only remaining objection was from Chief Ramona Sutherland of Constance Lake First Nation. The objection was in relation to the release language and the concern that future claims in relation to the discovery of unmarked graves of children will be barred by the release. I have addressed that issue above and I am satisfied that the release language was carefully considered and chosen, and goes no further than necessary. I am satisfied that the release language is confined to the matters raised in this class proceeding.

(f) Presence of Good Faith and Absence of Collusion

[89] This class action has been ongoing since 2012. The Band Class claim was the final part of the class proceeding that was unresolved.

[90] In 2017, the Representative Plaintiffs proposed the Four Pillars framework to a special representative of the Minister of Aboriginal and Northern Affairs as a path to settlement of the Band Class claims. However, due to the deaths of the several Representative Plaintiffs for the Survivor Class, the Band Class claim was put on hold to focus on resolving the Survivor Class and Descendant Class claims. Settlement of the Survivors Class and Descendant Class was reached in June 2021 and was approved by this Court in September 2021.

[91] Between 2017 and 2022, the parties did not have substantive discussions on resolving the Band Class claims. In September 2022, a Special Representative of the Minister of Crown-Indigenous Relations [MSR] contacted Class Counsel regarding a proposed settlement of the Band Class claim. The MSR advised that Canada had been working internally on resolving the Band Class claim and that the Minister wanted to resolve the claim on the basis of the Four Pillars Trust model.

[92] On September 14, 2022, the MSR delivered a settlement offer to Class Counsel. This ultimately became the Settlement Agreement that was signed in January 2023 and which is essentially the agreement now before this Court for approval.

[93] I am satisfied the parties engaged in good faith negotiations throughout and there is no collusion.

(g) Communications with Class Members during Litigation

[94] After certification in 2015, the Band Class proceeded as an opt-in class, meaning Band Class members had to choose to be part of the claim. The opt-in period was ultimately extended until June 30, 2022.

[95] To facilitate notice to potential class members, Class Counsel posted the extended deadline on the dedicated class action websites and sent the information by email to all Indian Bands known to Canada. I am satisfied that Class Counsel took steps to communicate the extended deadlines to opt-in to potential Band Class members across Canada.

[96] With respect to communication during litigation, Class Counsel knew the identity of all members of the Band Class who had opted-in, so direct communication to Class members was undertaken.

[97] Following the public announcement of the proposed settlement on January 21, 2023, Class members were contacted pursuant to a Court approved one-month Notice Plan. Class Counsel sent a copy of the Notice and proposed Settlement Agreement to the political and administrative offices of each Band Class member. The Notice was also sent by mail, email, and where possible, by fax, in both English and French. The dedicated class action website for the Band Class claim was also updated with the settlement Notice.

[98] Class Counsel requested that each Band Class member confirm receipt of the settlement Notice. Class Counsel made follow-up phone calls with any Band Class member who had not confirmed receipt of the settlement Notice.

[99] I am satisfied that robust, clear, and accessible notice of the proposed settlement was provided to Band Class members.

(h) Recommendations and Experience of Counsel

[100] The Band Class members were represented by a team of Class Counsel with deep experience in class actions litigation and in Aboriginal law. Class Counsel have firsthand experience with the IRSSA and were specifically sought out to act on this class proceeding. Class Counsel wholly recommend this Settlement Agreement, which, in their opinion, addresses the Representative Plaintiffs’ objectives.

VII. Conclusion

[101] Settlements are not often described as “monumental”, “historic”, and “transformational”. Here, however, I agree that those words aptly describe this Settlement Agreement. The flexibility this structure affords to the Band Class members, to set their own priorities to work within the Four Pillars and thereby address needs unique to their Nations, is unprecedented.

[102] When assessing the reasonableness of the proposed settlement, the Court must consider the interests of all 325 Band Class members as against the risks and benefits of having this class action proceed to Trial.

[103] Although the settlement of a class proceeding will never be perfectly suited to the needs of each member within the class, considering the obstacles that were overcome to reach this settlement, I am satisfied that this Settlement Agreement is in the best interests of the Band Class members. For the reasons above, I therefore approve the Settlement Agreement.

[104] With the approval of the Settlement Agreement, the claims of the Band Class members against Canada will be dismissed with prejudice and without costs.

ORDER IN T-1542-12

THIS COURT ORDERS that:

The Settlement Agreement dated January 18, 2023, and attached as Schedule A, is fair, reasonable, and in the best interests of the Band Class members, and is hereby approved pursuant to Rule 334.29(1) of the Federal Courts Rules, SOR/98-106, and shall be implemented in accordance with its terms;
The Settlement Agreement is binding on Canada and all Band Class members, including the releases outlined in paragraph 4 below;
The notice of approval of the Settlement Agreement (the “Notice”) shall be given to the Band Class members in accordance with the Notice Plan attached as Schedule B to this Order, and the Notice shall be substantially the form of Notice attached as Schedule C to this Order;
The Band Class claims set out in the Second Re-Amended Statement of Claim, filed February 11, 2022, are dismissed without costs and with prejudice and the following releases and related Orders are made and shall be interpreted as ensuring the conclusion of all Band Class claims, in accordance with section 27 of the Settlement Agreement as follows:

Each Band Class member (“Releasor”) fully, finally and forever releases His Majesty the King in Right of Canada, its servants, agents, officers and employees, from any and all actions, causes of action, common law, international law, Quebec civil law, and statutory liabilities, contracts, claims, and demands of every nature or kind and in any forum (“Claims”) available against Canada that were asserted or could have been asserted in relation to those asserted in the Second Re-Amended Statement of Claim regarding the purpose, creation, planning, establishment, setting up, initiating, funding, operation, supervision, control and maintenance of Residential Schools, the obligatory attendance of Survivors at Residential Schools, the Residential Schools system, and/or any Residential Schools policy or policies (the “Release”) and all such claims set out herein are dismissed on consent of the Parties as if determined on their merits;
For greater clarity, and without limiting the forgoing, the Claims do not relate to, or include any claims regarding, children who died or disappeared while in attendance at Residential School;
For greater clarity and without limiting the foregoing, the Release does not settle, compromise, release or limit in any way whatsoever any claims by the Releasors, in any other action, claim, lawsuit, or complaint regarding a declaration of Aboriginal or Treaty rights, a breach of Aboriginal rights, a breach of Treaty rights, a breach of fiduciary duty, or the constitutionality of any provision of the Indian Act, its predecessors or Regulations, other than claims related to the purpose, creation, planning, establishment, setting up, initiating, funding, operation, supervision, control and maintenance of Residential Schools, the obligatory attendance of Survivors at Residential Schools, the Residential School system, and/or any Residential Schools policy or policies as set out in Section 27.01 of the Settlement Agreement and subparagraph 3 (a) above;
Except as provided herein, this Settlement Agreement does not settle, compromise, release or limit in any way whatsoever any claim by the Releasors against any person other than Canada. For greater clarity, and without limiting the foregoing, the Release cannot be relied upon by any Third Party, including any religious organization that was involved in the creation and operation of Residential Schools;
If any Releasor makes any claim or demand or takes any actions or proceedings, or continues such claims, actions, or proceedings against other person(s) or entities in relation to the allegations, matters or the losses or injuries at issue in the Action, including any claim against Provinces, Territories, other legal entities, or groups, including but not limited to religious or other institutions that were in any way involved with Residential Schools, the Releasor will expressly limit their claims so as to exclude any portion of loss for which Canada may be found at fault or legally responsible for, or that Canada otherwise would have been liable to pay but for this Release;
Canada may rely on this Release as a defence to any lawsuit by the Releasors that purports to seek compensation from Canada for anything released through this Agreement;
Each Releasor is deemed to have agreed, warranted, and represented that it is the holder of the collective rights to whom the duties are owed on behalf of their respective communities as asserted in the Second Re-Amended Statement of Claim;
Canada may rely on this Agreement as a defence in the event that any other individual, group, or entity (“Third Party”) pursues any action, claim, or demand for the claims or losses released by this Agreement and asserts that it, and not any Releasor, is the proper holder of the collective or community rights, is the community entity to whom the asserted duties were owed, or holds the authority to advance and release such claims, either because it is a sub-group within the Releasor entity or a larger entity to which the Releasor belongs, or is otherwise related, connected or derived;
If a court or tribunal determines that a Third Party, and not the Releasor, is the appropriate rights holder or otherwise owed the duties at issue, Canada may seek a set-off of the amounts paid to the Releasor through operation of this agreement; and

This Order does not affect the rights of persons who are not Band Class members;
Without in any way affecting the finality of this Order, this Court reserves exclusive and continuing jurisdiction over the action, for the limited purpose of implementing the Settlement Agreement and enforcing the Settlement Agreement and this Approval Order;
The not-for-profit entity incorporated by the Plaintiffs shall act as the sole trustee of the Trust;
The not-for-profit entity shall have as its purposes the Four Pillars as defined by section 21.03 and Schedule F of the Settlement Agreement;
Canada shall pay two billion eight hundred million Canadian dollars ($2,800,000,000) (the “Fund”) no later than thirty (30) days after the Implementation Date to settle the Trust;
The Fund will be used in furtherance of the Four Pillars as defined by section 21.03 and Schedule F of the Settlement Agreement;
The not-for-profit entity, as sole trustee of the Trust, shall receive, hold, invest, manage and disburse the Trust for the benefit of the Band Class members in accordance with the Settlement Agreement, the terms of the Trust as set out in a written trust agreement signed by the not-for-profit entity to indicate its acceptance of the Trust and the duties and obligations of the trustee, and in accordance with the Investment Policy and Disbursement Policy attached as Schedules D and E to the Settlement Agreement;
Canada shall make best efforts to exempt any income earned by the Trust from federal taxation, and Canada shall have regard to the measures that it took in similar circumstances for the class action settlements addressed in paragraph 81(1)(g.3) of the Income Tax Act, RSC, 1985, c 1 (5th Supp.);
Neither the Fund nor income earned on the Fund can be used:

(a)to fund individuals;
(b)to fund commercial ventures;
(c)as collateral or to secure loans; or
(d)as a guarantee.

No monies paid out from the Trust to a Band Class member may be subject to redirection, execution, or seizure by third parties, including third party managers;
Class Counsel shall report to the Court on the implementation of the Settlement Agreement six (6) months after the Implementation Date subject to the Court requiring earlier or additional reports, and subject to Class Counsel’s overriding obligation to report as soon as reasonable on any matter which has materially impacted the implementation of the terms of the Settlement Agreement; and
There will be no costs on this Motion.

	"Ann Marie McDonald"
	Judge

Schedule A– Settlement Agreement

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Schedule A – Second Re-Amended Statement of Claim, filed February 11, 2022

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Schedule B – Certification Order, June 18, 2015

Schedule B.1 – September 24, 2021 Order (order only) + Schedule G of the Settlement Agreement

Schedule B.2 – February 8, 2022 Order (order only)

Schedule C – List of Opted in Band Members

Schedule D – Investment Policy

Schedule E – Disbursement Policy and Disbursement Formula

Schedule F – The Four Pillars

Schedule B – Plan for Disseminating Notice of the Settlement Approval

Schedule C – Notice of Settlement Approval (English and French)

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FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1542-12
STYLE OF CAUSE:	CHIEF SHANE GOTTFRIEDSON ET AL v HIS MAJESTY THE KING IN RIGHT OF CANADA
PLACE OF HEARING:	Vancouver, British Columbia
DATE OF HEARING:	February 27 AND FEBRUARY 28, 2023
ORDER AND REASONS:	MCDONALD J.
DATED:	March 9, 2023

APPEARANCES:

Peter R. Grant

Diane Soroka

John Kingman Phillips, KC

W. Cory Wanless

Jonathan Schachter

Flora Yu

For The Plaintiffs

Travis Henderson

Ainslie Harvey

For The Defendant

Oliver Pulleyblank

Melissa Rumbles

FOR WAUZHUSHK ONIGUM NATION

SOLICITORS OF RECORD:

Peter Grant Law

Barrister & Solicitor

Vancouver, BC

For The Plaintiffs

Diane Soroka Advocate Inc.

Barrister & Solicitor

Westmount, QC

Waddell Phillips

Professional Corporation

Toronto, ON

Attorney General of Canada

Department of Justice

Vancouver, BC

For The Defendant

Pulleyblank Law

Vancouver, BC

FOR WAUZHUSHK ONIGUM NATION

First Peoples Law LLP

Vancouver, BC