Reconciling tort and administrative law concepts of justice: the case of historical wrongs.

• Author: Jacobs, Laverne
• Position: Canada

The response of the Canadian courts to the action in Mack has been disappointing. ... A fully mature legal system recognizes that the judiciary have a duty alongside the legislature to ensure the proper content of law, and this may in exceptional cases require them to deny the validity of procedurally sound statutes. Of course, should a reasonable statutory scheme of compensation be created, the courts would respect that as replacing the right to restitution for mistake of law. But it would seem that on both accounts the Canadian system has yet to reach full maturity.

--Julian Rivers (1)

Why can't the Premier understand that when he puts a price on the most fundamental of people's rights, he leaves them without any value at all?

--Alberta Hansard, 11 March 1998

INTRODUCTION

These two quotes reflect a particular situation that metaphorically shackles our ability to provide satisfactory redress for historical wrongs. On the one hand, doctrinal interpretations of the rule of law, though technically correct, have rendered judicial recourse for historical wrongs essentially unfulfilling. Shackling the other hand are administrative schemes for compensation which, although arguably well placed to answer the call for adequate compensation, are riddled with such tensions in their creation and implementation that they often result in unsatisfactory forms of redress as well. What I propose to do in this article is to explore the question of what it takes to create the reasonable compensatory scheme to which Julian Rivers alludes in his work. Specifically, why have our attempts to seek justice through judicial intervention failed? And what can we learn from past experiences to help ameliorate our efforts to create appropriate redress through administrative compensation schemes?

It is an especially timely moment to explore these questions given the many compensation claims that the federal government has recently been asked to address. Among these are claims for redress by Chinese Canadian railway workers who had been denied immigrant status in Canada between 1885 and 1947 (the "Chinese Head Tax case"); claims by Ukrainian Canadians who had been interned during World War I and the ongoing process of trying to provide appropriate redress for Canada's Aboriginal residential school legacy. Indeed, the recent decision of Baxter v. Canada, (2) decided in December 2006, offers thought-provoking commentary on the difficult intersection between tort and administrative methods of providing compensation that can arise with respect to historical wrongs. In Baxter, the Ontario Superior Court of Justice grappled with some of the problems inherent to having the government--a face of the author of the original problem--also act as a master of the compensation process. (3) Baxter and its parallel cases represent the latest chapter in the Aboriginal residential school class action litigation. In Baxter, the Ontario Superior Court of Justice approved the proposed settlement of the parties on condition that certain modifications be made to the procedure planned for administering the settlement.

The first part of this article provides an overview of the most dominant private and public law approaches that have been attempted in the courts by plaintiffs seeking redress for historical wrongs and outlines why these approaches have been unsuccessful. It also defines the notion of historical wrongs and provides background information on the two historical wrongs used as a case study in this paper--Aboriginal residential schools and sexual sterilization in Alberta. In the second part, I turn to discuss the phenomenon of creating compensation schemes as an alternative to traditional court action. The delicate treatment that historical wrongs requires is perhaps most evident in the emotional debates that surround the setting up of compensatory schemes in their regard. Two illustrative examples are the outcry surrounding the introduction of a statute to compensate the victims of sterilization in Alberta and the continuing challenges related to the Aboriginal school resolution process established by the federal government. An examination of the compensation schemes that emerged in these two contexts as well as the process of their emergence provide valuable insight into some of the tensions that can occur when systems of compensation for victims of historical wrongs are designed. These tensions include the challenge of determining the appropriate nature and scope of compensation and dealing appropriately with difficult issues relating to independence and mistrust that can arise when the author of a historical wrong later decides to remedy it. I argue that these tensions may be addressed by fostering continuous dialogue between the government and the victims and through independent oversight. Finally, I offer some observations on the ways in which compensatory schemes for historical wrongs expand our traditional conceptions of administrative justice.

The idea that historical wrongs require delicate treatment is also the catalyst for the nuance that must be brought to bear on the aims of this article. Certainly, every historical wrong will have its own factual and historical specificities that demand attention in determining how to go about redressing its victims appropriately. It would be overly ambitious to suggest that the tensions drawn out of the examples examined in this paper speak definitively to any other situation. Rather than offering definitive solutions, then, the point of this article is to extract avenues of exploration that should be considered in the design of compensatory schemes for historical wrongs--particularly when those wrongs involve human rights violations through previously valid government action.

PART I: Historical Wrongs in the Courts

A review of the North American legal literature on past human injustice reveals an almost implicit understanding of the term "historical wrong". The concept has been used in the Canadian legal literature referring, most notably, to Aboriginal residential schools, (4) the Chinese Head Tax case, (5) racial internment (6) and forced sexual sterilization. (7) The idea tends to encompass serious physical, psychological and/or cultural injuries that have repercussions over several years and which result from the past creation and implementation of a governmental policy. In the United States, reparations theorists often view historical wrongs as wrongs imposed by one group on another for racially motivated reasons. However, the dominant group has not been conceptually confined to government actors. (8)

I intend to use a definition of "historical wrongs" that encompasses many of the elements seen in the Canadian literature but is narrower than the interpretation used in the United States. Although inflicted on one group by another, historical wrongs in this context will consider only those wrongs imposed by government legislation or policy. Though this legislation or policy may have been later repealed, it will have been validly enacted at the time of the initial injuries. Moreover, the impugned governmental acts or omissions would most likely be considered discriminatory under contemporary legal standards (i.e. under the Canadian Charter of Rights and Freedoms (9) or other domestic human rights legislation), having been directed towards vulnerable groups in society. These vulnerable groups may also be considered to be owed a fiduciary duty. "Historical wrongs", in this sense, is therefore used to describe more than injustice on racial grounds, a ground that is often argued as a basis for reparations claims both in Canada and elsewhere. Instead, the notion of historical wrongs, as it is used here, extends to incorporate injustice done to all vulnerable groups in society. A useful reference point for the idea of a vulnerable group is subsection 15(1) of the Canadian Charter and its judicial interpretations. (10)

Two examples of such historical wrongs will be used for analysis--the system of Canadian Aboriginal residential schools and the forced sexual sterilization of mentally challenged children in Alberta. This is not to say that there are no other illustrations of historical wrongs in Canada. (11) However, these two particular examples show a fascinating mixture of both court action and compensation schemes running concurrently. Historical background of both situations is laid out below, followed by an analysis of the legal and equitable doctrines used in the courts to address historical wrongs such as these.

1. Aboriginal Residential Schools in Canada

   The purpose of Aboriginal residential schools was to assimilate native children into mainstream Canadian society. Aboriginal children were separated from their families and sent to boarding schools off the reserves. Aboriginal residential schools existed actively in Canada between the early 17th century and the mid-1980s. The last federally-run school was shut down in 1996.

   Two main reasons are often given for the attempt to assimilate Aboriginal peoples in this way. The first deals with the financial responsibility of the federal government with respect to Aboriginal peoples. The British North America Act of 1867 declared Aboriginal peoples and their lands to be a federal responsibility. (12) This obligation was expanded in 1876 when the Act to amend and consolidate the laws respecting Indians (13) made all Aboriginal peoples wards of the federal government. The federal government sought to make First Nations people more like the dominant, non-native Canadian society both economically and culturally. This included teaching Christian morality and technical skills. Some scholars argue that through this process of assimilation, the government hoped to minimize, if not eliminate, its financial and fiduciary obligations for First Nations peoples by having them move off reserves and into mainstream culture. (14) A second reason given for...