CHR Compensation Update
-from the Vancouver AGM

Paul Glover - former Director of the First Nations
Inuit Health Branch of Health Canada

“It has been just over a year since the Wage Parity Settlement Agreement
was signed in 2000 and a lot has happened in that time. CHRs are now
able to collect wages that were owed to them. Because the Trust
Agreement is now in place, it shows the important role that CHRs play
in overall community health care. Health Canada helped in the Wage
Parity process by providing employment proof and other information for
some CHRs to show their length of service. A special office has been
set up at Health Canada to accommodate CHRs' requests for
information.

Health Canada has decided to move away from core funding for national
organizations – a decision that directly affected NIICHRO. Despite this
news, NIICHRO has continued to flourish as a national organization
representing CHRs. Health Canada still provides project funding for
NIICHRO for initiatives that NIICHRO advocates. NIICHRO has
remained a good partner with Health Canada for delivering health
services to communities.”

Kathleen Mahoney - Trustee & former legal
counsel for NIICHRO

History of the Wage Parity complaint:

There was a previous complaint filed through the Canadian Human
Rights Commission (CHRH) and a subsequent tribunal consent
order in 1987. That only covered those CHRs who were still public
servants. Those CHRs received a settlement but most of the CHRs
who were on contribution agreements with bands were left out of that
consent order. Consequently, the former Executive Director of NIICHRO
filed a complaint with the Canadian Human Rights Commission on
December 9, 1992 on the basis that the settlement was a discriminatory
practice. The reason that the year 1980 was chosen was that the
original tribunal order went back to 1980, and it was deemed that
that was when the date of the discrimination started.

The CHRC received the complaint and determined that in fact, there
were grounds for the complaint. Based on this, the government did
attempt to make a conciliatory offer of compensation but it was very low.
Health Canada offered a sliding scale from $0-$5000 depending on years
of service. This offer was rejected. After that, on the advice of the CHRC,
the complaint bypassed the tribunal stage and proceeded immediately to
Federal Court. The Federal Court threw it out and the complaint went
back to the tribunal stage.

In 1997 I was retained as legal counsel for NIICHRO
and mediation was attempted as a next step in the process. A mediator
from the Human Rights tribunal conducted the process and the Board of
Directors of NIICHRO made all decisions.

Kathleen Mahoney

Answers to commonly asked
questions about the settlement:

What are the terms of the Trust?

The terms of the agreement are outlined in a 34-page document that
has been made available to CHRs. It outlines how the money from the
settlement will be handled, who will be in charge of making decisions,
who they are accountable to. The document empowers the Trustees to
do their job and sets out the limits as to what the Trustees can do. The
Trustees can do nothing out of the scope of the agreement between
NIICHRO and the Trustees.

How were the chosen Trustees appointed?

All sides nominated people to be Trustees and those chosen were felt
to be parties who would make decisions in the best interest of CHRs.
There are no government employees on the Board of Trustees.

The Trustees are:

Rachel Ermineskin is a Federal CHR who does not qualify under the
agreement to receive compensation;
Margaret Horn, NIICHRO’s Executive Director, manages the administrative
arm of the Trust and has full knowledge of the whole process;
Norma Diamond is a former employee of the Assembly of First Nations.
They supported the negotiations from the very beginning and were an integral
part of its success through former National Chief Phil Fontaine;
Joe Marino, representative from Royal Trust, the Corporate Trustee;
Kathleen Mahoney as former legal counsel to NIICHRO was appointed to
provide continuity and knowledge of the entire process.
 

What power do the Trustees have?

The agreement outlines the duties and responsibilities of the Trustees.
The Trustees only have as much power as in the agreement and no more.
Trustees have a legal requirement to always act in the best interests of their
beneficiaries and must act prudently. The Trustees have the power to
invest the money in the Trust but are limited by the agreement so as not
to squander the settlement. Investments have already been made and
currently, the money has been placed in the safest possible investments
earning a modest return. The Board of Trustees must keep books and be
accountable in its spending in terms of paying debts owed by the Trust and
for making payments out of the Trust to the beneficiaries. The Trustees must
also employ professionals as needed throughout the life of the Trust
(lawyers, accountants, actuaries) to help administer the Trust. The
Trustees make decisions on how the money will be paid out and they
have the power to settle claims. Ultimately, the Trustees will defend the
Trust from any lawsuits that may arise throughout its life. The entire process
shall be transparent, with all financial and administrative dealings made clear
to the beneficiaries. The Board of Trustees must make quarterly fiscal reports.
The reports will contain the following information:

1) All distributions to beneficiaries will show as a lump sum
and not reveal what each individual will receive.
2) All expenditures including Trustees' costs and any other fees.
3) How many claims have been made, accepted, denied and how
many are under appeal.
4) How much money remains in the Trust and how much money has
been made from investments.

The Trust will also be subject to yearly audits at the end of each fiscal
year. This information will also be available to anyone interested. The
Trustees are entitled to be compensated for their work and can be
reimbursed for any expenses reasonably incurred while fulfilling their
duties and obligations under the Trust.

The Trust resides in Calgary, Alberta and therefore Alberta law will govern
the Trust for a few practical and economical reasons:

A significant number of Trustees live in Western Canada.

Most CHRs live in Western Canada and for any legal matters
or going to court, with Calgary central to Western Canada, it is easier
to travel there for most CHRs and Trustees.

What if Trustees get sick, die or cannot do the work?

The agreement provides for these situations.
Trustees can be replaced by unanimous vote by the other Trustees and
another person must immediately replace Trustees removed. At all times,
the majority of the Trustees must be Indians under the Indian Act and must
be considered upstanding citizens.

How long will the Trust exist?

1) As long as money remains in it.
2) A court can declare the Trust ended. In extremely unusual
circumstances, the court can terminate the Trust.
3) It expires in 5 years' time according to the terms of the agreement.
By that time, all money will be disbursed.

What if there is money left over?

Any money left over will either be disbursed to the CHRs on an equitable
basis, or in the case that only a small amount remains and it is too expensive to
disburse, the Trustees will suggest an equitable solution to the court and ask for
guidance on how to disburse the final amount. These suggestions would be solutions
that best benefit all CHRs.

How will claims be made?

Claims will be made through NIICHRO as the administrative arm of the Trust.
Should anything happen to NIICHRO, the Trustees have the
obligation to hire another office to carry out the role of administering claims.

What are NIICHRO’s duties?

NIICHRO submitted a highly detailed plan to the Trustees and all the
bargaining parties in the agreement as to how they would administer a claim.
NIICHRO has set up a number of mechanisms to ensure that claims run as
smoothly as possible:

1) NIICHRO has established a toll free phone and fax number for ease of
communication with CHRs. (phone: 1-866-644-2476 fax: 1-866-635-3135)
2) NIICHRO has hired extra staff as claims agents dedicated to helping CHRs.

Trust Booklet

Making Claims

The agreement specifies that each eligible CHR must sign a claim form.
That claim must be supported by documentation. The Trustees cannot in
good faith, pay out any payments to an unsupported claim. The eligible CHR
must provide evidence that they worked as a CHR and that they were underpaid
while employed by a First Nation entity. All transactions on the Trust are recorded
and reported by the corporate Trustee and kept separate from all other bank assets.
Royal Trust protects the capital investment but also invests money wisely to earn
interest. The Trust is invested in Canadian Treasury Bills and over the past year,
since June 2000, it has gained approximately one million dollars in interest.

Several payments have been made out of the Trust in the past year. This information
has been made available to CHRs.