Federal Court of Appeal denies Salt River's bid to intervene in residential schools settlement

The Federal Court of Appeal has dismissed Salt River First Nation’s appeal to intervene and join a class action settlement over the residential schools system.

The case originated from the Federal Court's decision in Tk'emlúps te Secwépemc First Nation v. Canada, 2023 FC 237.  Salt River First Nation, located in the Northwest Territories, sought to intervene and be included as a class member in a settlement concerning compensation for the loss of Indigenous culture, language, and social cohesion due to the residential schools system. Despite missing the opt-in deadline, Salt River argued that it was unaware of the class action due to administrative and health challenges within its leadership.

The Federal Court had previously dismissed Salt River's request, prompting an appeal based on procedural and substantive grounds. The appeal highlighted concerns over how Salt River's motion was handled—decided in writing before submitting the respondents' motion records—and questioned the rejection of their late participation in the class.

The respondents and the Attorney General of Canada maintained that the Federal Court's process and decision were correct. They also deemed the appeal moot, as the settlement had been approved and the funds transferred to the designated trust, thus potentially leaving Salt River's grievances unaddressed.

The underlying class action, certified in 2015, sought redress for harms inflicted by the residential school system. The class was structured to allow Bands to opt-in, a unique approach aimed at accommodating the specific claims of Indigenous bands. Despite extending the opt-in deadline twice, Salt River missed the cutoff, raising questions about notice adequacy and the implications of such procedural decisions on the rights of potential class members.

The court noted that the discovery of unmarked graves at former residential school sites, described as "a game changer" by counsel, underscored the renewed interest in the proceeding and the necessity of allowing affected communities adequate time to join the class.

Ultimately, the court dismissed the appeal despite acknowledging errors in the Federal Court's motion handling and the failure to consider an oral hearing. The court highlighted the crucial role of due process and the careful balancing of the judicial economy against the rights and interests of parties in class action settlements.