'Just get it done:' Indian day school survivors divided over proposed settlement

For more than a decade, Ray Mason has been fighting for compensation for the time he and thousands of other Indigenous people were forced to attend federally operated Indian day schools. He hopes that battle will soon be over.

Federal judge will decide whether to approve agreement-in-principle after hearings

Ray Mason gets emotional as he looks at the site of one of the Indian day schools he attended as a child. (Karen Pauls/CBC News)

For more than a decade, Ray Mason has been fighting for compensation for the time he and thousands of other Indigenous people were forced to attend federally operated Indian day schools.

He hopes that battle will soon be over.

Mason, 72, hopes a proposed settlement agreement announced in March will be approved by a federal court in Winnipeg this week. With an estimated 2,000 survivors dying every year, time is of the essence.

"The urgency is to get to get it through as quick as possible so that the people can get what they deserve before they pass on," Mason said last week at his home on the Peguis First Nation, about 190 kilometres north of Winnipeg.

In fact, one of the lead plaintiffs died just weeks before the settlement was announced in March. Garry McLean and Mason headed the Spirit Wind survivors group, which filed the original class-action in 2009, with the help of another day school survivor and lawyer, Joan Jack.

Mason paused to take a sip of coffee as he recounted the last conversation he had with McLean in hospital in February.

"I said, 'What's going to happen if the roof caves in and you leave us? What about the class action?' And he said, 'Well Ray, you put me there. You taught me everything. You know what has to be done. Just get it done. Just get it done, bro,'" Mason recalled with a tremor in his voice.

"That was his last few words that I had with him."

'I will never speak Indian again'

About 200,000 Indigenous children attended federally operated Indian day schools across the country, beginning in the 1920s. Indian day schools were operated separately from Indian residential schools and were not included in the 2006 Indian Residential Schools Settlement Agreement, worth $1.9 billion.

The federal government announced last December that it had reached a deal with Indigenous students of about 700 day schools that began operating in the 1920s. Students experienced emotional, physical and sexual abuse similar to that suffered by students at residential schools.

"I had TB as a child, and I couldn't speak English. All I could speak was my native tongue, and when I went to day school here, I was punished for it," Mason said, adding he grew up speaking Oji-Cree.

"Every time I tried to speak, I couldn't speak English, so I got strapped and I got my hair pulled, my tongue pinched, and I was ostracized and I had to stand on a corner and balance a book on my head for a long, long time, seemed like hours."

"And then, after that, I had to write on the chalkboard: 'I will never speak Indian again' about 100 times."

From left, lawyer Jeremy Bouchard; the late Garry McLean; Carolyn Bennet, minister of Indigenous Affairs; Ray Mason; and lawyer Robert Winogron attend the federal government's announcement in December that it had reached a deal with Indigenous students of about 700 day schools. (Supplied by Ray Mason)

Survivors travel to court hearings

On Monday morning, Mason was one of hundreds of survivors who came to federal court, where Justice Michael Phelan will decide whether to approve the proposed settlement agreement.

The courtroom and nearby overflow filled quickly, and survivors were directed to a viewing area at a nearby hotel.

That didn't go over well with William Osborne, who travelled from Cross Lake First Nation, which is about 700 kilometres north of Winnipeg.

"I was really really gung ho to come here. I travelled about eight or nine hours to get here, and I got up early," Osborne said.

"It took a while to find the place, only to be turned away because this place is too small for it to hold everybody. So I'm kind of not too happy about it, because it's an important issue for all of us," he said, adding he has "very grave concerns" about the offer.

Details of the proposed settlement were released in March.

Anyone attending a day school would be eligible to receive $10,000 in individual compensation. Anyone physically or sexually abused could receive an additional $50,000 to $200,000, depending on the severity of his or her claim.

Claimants will fill out forms and submit them to an administrator. There won't be any in-person testimony or cross-examination.

The process is meant to prevent the re-traumatization of living through their experiences, or of their testimony being challenged.

Even if someone has already received compensation for attending a residential school, he or she is eligible to apply for day-school compensation.

If a former student died between July 31, 2007 and today, the person's estate can make a claim on his or her behalf.

The proposed settlement agreement also includes a $200-million legacy fund for healing and wellness programs.

In a move that was surprising to some, the class counsel lawyer Mary Thomson announced amendments to the agreement in court this morning. She said they are in response to concerns they've heard since March. The changes have already been approved by Canada's Attorney General:

  • The opt-out period has been extended from 60 to 90 days.
  • The claims application period has been extended to 2½ years from one year after the agreement is approved. Residential school students had five years.
  • Non-lawyers cannot act as paid form-fillers for survivors.
William Osborne travelled many hours to get to the federal court hearings, but was disappointed to be sent to a viewing room in a nearby hotel. (Warren Kay/CBC News)

Some Indigenous groups, including the Federation of Sovereign Indigenous Nations and the Grand Council of the Crees, say the agreement is flawed because it won't provide the emotional or legal help needed as people file their claims.

There's a concern that many former day-school students will have difficulty gathering the documentation required and completing the online forms because they don't have access to computers. 

"You have to have a witness, you got to prove it. You got to have your documents," said Gavin Baptiste, 66, who attended the Little Pine Day School for seven years, starting when he was seven years old. He recalled being strapped for speaking Cree.

"This is a lawyer's game. … Lawyers need to do this, because ordinary people are not going to do it. … It's a legal document. I feel that a lot of us are going to fail, because we don't know how to do that," he said. "A lot of the people are going to be re-triggered."

'It doesn't matter who is in power. They all owe us what they owe us.'

Joan Jack helped file the original $15-billion class-action lawsuit in 2009. Her firm is not involved in this settlement.

She has several concerns about it, even though some of them were addressed in the amendments announced this morning.

"There is a huge push to approve it. Another thing that people are saying is: 'Oh, we have to approve it now before the Conservatives get elected.' I don' think being afraid of which government is in power is any reason to accept a deal that needs to be improved," Jack said outside the courthouse Monday.

"It doesn't matter who is in power. They all owe us what they owe us."

Joan Jack, a lawyer and day-school survivor, filed the original class-action lawsuit in 2009 on behalf of Spirit Wind, a day-school survivors' group. Her firm is not included in this compensation agreement. (Karen Pauls/CBC News)

Gowling WLG of Ottawa negotiated the deal and will act on behalf of all potential claimants.

Thomson told court that in the last 60 days, 65,600 people have registered with Gowling. Approximately 7,000 other applications are waiting for data entry. There are between 120,000 and 140,000 potential eligible Indian day-school survivors.

Thomson went through the claim forms in court to show how simple they are to fill out, adding her firm will provide whatever help is needed. 

There will also be a call centre offering help in English, French, Dene, Cree, Ojibwe, Mi'kmaq and Inuktitut.

Thomson said a written narrative will have to be included for every claim. Documentation will vary depending on the level of claim, but proof of school attendance — report cards, photos, letters from staff  — will be required.

Gowling will be paid $55 million for the legal work.

'Money is not everything'

Mason believes this process is much better than the one residential-school survivors had to endure — something he knows, because he went through it.

"You're not going to be interrogated, and you're going to have Canada's lawyer sitting in front of you staring at you, and so it's a lot different. It's more friendly, it's a lot quicker, swifter. It's less costly," he told CBC News, adding he and McLean both wanted a more streamlined process.

"I look at it this way. It's something I would have today that we didn't have yesterday, and money is not everything … but it certainly will help in putting closure to a bad history, a bad legacy."

The federal court will decide whether to approve the agreement following hearings this week.

Mason is one of several people speaking in support on Monday. Objectors and their lawyers will address the court on Monday and Tuesday. Final responses will take place Wednesday and it's not known when Justice Michael Phelan will come to a decision.

Phelan told court the decision is all or nothing — acceptance or not. Survivors can opt out if they feel it's not in their best interest. If enough people opt out, the settlement will fail and the case will go to trial.

If it is approved, the court will appoint an administrator who will oversee it and make payments.

Once that happens, Mason will turn his attention to more than 400 schools across Canada that have not been included in either of the settlements so far.

"I have already instructed my lawyers to get on the bandwagon, and we're going to go after Canada and the province, because Canada paid for the children to stay there," he said.

With files by Cameron MacIntosh and Angela Johnston