Local Journalism Initiative Reporter
Indian residential school survivor Raymond Mason’s experience with the Independent Assessment Process (IAP) is not consistent with what has been presented by the IAP Oversight Committee in its final report released earlier this month.
As an integral part of the Indian Residential School Settlement Agreement (IRSSA), the IAP was the out-of-court process used to settle claims of sexual abuse, serious physical abuse and other wrongful acts. The committee describes it as a claimant-centred process which is a “more respectful experience than the traditional adversarial approach.”
In a process that began in 2007, 38,276 claims were received and adjudicators awarded $2.141 billion in compensation to 23,431 claimants. An additional 4,415 claimants received compensation directly from Canada through negotiated settlements. Payments from Canada totalled $3.233 billion, including compensation, legal fees, and disbursements. The process itself cost another $411 million.
According to the final report, to understand the “IAP experience and the lessons to be drawn from it” focus groups and individual interviews were held with those who participated. More than 250 claimants were part of the assessment process. Of those, three-quarters said the questions asked by the adjudicator were reasonable and done respectfully and 60 per cent said they were satisfied with the decision reached and the compensation they received.
Mason’s experience differed greatly.
“Us survivors, especially the older ones, they have a certain way of expressing ourselves and what they say means something different and they never ever had the opportunity to go back to their comment or to their response and clarify what they meant, because when you made a response, that was it, that was final, like it was written in stone and we did not have any opportunity to question the adjudicator during the process of the hearing. You just listened, you answered the question, and that was it,” he said.
“The high volume of cases posed significant challenges, not only to operational procedures, but also to the capacity of the process to offer claimant-focused attention to each claim,” said the committee in its report.
To address unexpected challenges, changing circumstances and emerging concerns, new procedures and approaches were implemented during the course of the IAP, said the report.
Mason spoke to an adjudicator in early 2007. The ruling was delivered in July 2008. Mason shares adjudicator Anne Wallace’s six-page decision as part of his newly-released book, Spirit of the Grassroots People: Seeking Justice for Indigenous Survivors of Canada’s Colonial Education System.
He received $139,000 as a final settlement (including $10,000 for future ongoing care) based on a grid system that was developed as part of the IRSSA “to ensure consistency in awards,” said the committee’s report. The grid system allocated points for harms and those points were tallied to indicate the sum of the monetary award. Claimants could receive awards up to $275,000.
The committee reports that the grid system was criticized by claimants and stakeholders as being “too restrictive.” Mason calls it “farfetched.”
“I wasn’t happy with the settlement because I thought I should have gotten a lot more, judging what I went through and what I endured in the Indian residential school system,” said Mason.
He did have the option to have his decision reviewed, but said he was told it would take nine to 12 months for a decision to come from that review. He said he was also told he would have to visit an IAP-approved physician or psychiatrist. He was also cautioned that he could get less than what was being offered to him at the time.
“To me, that was a frivolous way of saying, ‘Take it or leave it,’” said Mason, who took it “begrudgingly.”
“Us Native people, we were always in need of money and financial resources. And they know, ‘They’re poor people, just throw them peanuts and they’ll accept what you give them,’” he said. “At that time, I needed the money. They used that aspect to get the best of me.”
The committee’s final report does not include statistics on how many adjudication rulings were reviewed or re-reviewed.
“The only figure that we can release on the number of review and re-review decisions is from the Chief Adjudicator’s (2017) update on the Completion Strategy for the IAP, which estimated that five per cent of claims would be subject to a review or re-review,” said Michael Tansey, spokesperson for the IRS Adjudication Secretariat.
A review could be requested, but the scope was limited to the technical and legal aspects of the IAP and no new evidence was allowed. That review would either uphold or change the original decision or order a new hearing. If the reviewer changed the original decision, then a re-review could be requested.
Mason attended three residential schools over 12 years in Manitoba. He was sent to his first school at seven years of age in 1953.
The IAP provided support and health service workers, many of whom were Indigenous, for the claimants. Mason says he would have liked to have seen more Indigenous people serving as adjudicators.
“I have no disrespect for non-Aboriginal people, don’t get me wrong, but they didn’t live it. They didn’t experience what we went through,” he said.
The committee report identifies difficulties “despite focused efforts” to contract Indigenous adjudicators. At its peak, when the IAP had eight deputy chief adjudicators, three were Indigenous. There were over 20 Indigenous adjudicators in the IAP.
Mason does credit the IAP for righting the wrongs that occurred during the Alternative Dispute Resolution (ADR) program, which preceded the IRSSA.
The ADR engaged a two-tiered compensation system. Under the IAP, the two-tiered system was eliminated and previous awards under ADR were automatically “topped up” to one national grid. Also, in ADR, the Catholic church entities did not pay the 30 per cent of awards attributable to churches, so people who attended those schools only received 70 per cent of their awards. When the IAP was implemented, those claimants automatically received the missing 30 per cent. The IAP also allowed for reopening certain claims addressed through the ADR.
Mason adds his voice to the criticism the committee says was expressed over the exclusion of numerous Indian residential schools from the IRSSA list. The IRSSA only included residential schools that Canada partnered with the churches to operate.
“There are 200,000 people out there who still need their justice and compensation for what they endured and (Canada) refuse(s) to give them,” said Mason.
“The sad thing about it is that we had no control whatsoever on where they put us. When you take us and put us away and strip us from our families, our communities, our culture, you have ultimately a legal fiduciary obligation for our safety and well-being. It doesn’t matter who owns that damned building, who owns those institutions.”
In Spirit of the Grassroots People, Mason outlines his role and that of his organization Spirit Wind in helping to bring about both the IRSSA and the McLean’s Day School Agreement. It’s experience he’s pulling on as Spirit Wind is in the process of working toward a class action that would encompass the people excluded from the IRSSA. Mason says he will not benefit financially from the new class action. He is waiting for his compensation from the McLean’s Day School Agreement.
The committee also points out in its report that along the way there were legal battles over the future of documentation gathered during the process and ethical misconduct by some lawyers.
A court decision determined the chief adjudicator would destroy the documentation after Sept. 19, 2027, unless claimants want a copy for themselves or to share publicly.
As for the lawyers, action ranged from removal as representatives of claimants to conviction of professional misconduct and fines to disbarment.
The committee also says in its report that for most claimants “the most important aspect of going through the IAP was not about the compensation but was being able to talk about their experiences and be believed.”
While Mason doesn’t entirely agree with that statement, he does acknowledge the work Canada undertook.
“It was an attempt on Canada’s part to resolve that part of the life that they put me through. It was an attempt, so I respect Canada for that,” said Mason.
The IAP Oversight Committee report can be found at http://www.iap-pei.ca/media/information/publication/pdf/FinalReport/IAP-FR-2021-03-11-eng.pdf
Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.