THE UNTOLD STORY: HOW INDIGENOUS LEGAL PRINCIPLES INFORMED THE LARGEST SETTLEMENT IN CANADIAN LEGAL HISTORY.

• Author: Mahoney, Kathleen
• Position: Forum: Rights in Times of Challenge

Introduction

This paper is written from the experience of the writer as the chief negotiator for the Assembly of First Nations in the settling of the historic Indian Residential Schools Settlement Agreement (IRSSA). (1) It will explain how conventional legal and theoretical frameworks--be they in the civil law of tort, criminal law, or international human rights law--could never have achieved the reparations contained in the Indian Residential School Settlement Agreement. The paper argues that these legal tools are inadequate to fully comprehend state violations such as those perpetrated against indigenous peoples and the harms they caused, especially when the violations were motivated by cultural genocide. The paper further asserts that the lawyers that operate within the formal justice system are ill prepared to comprehend or correct the relationship between the oppressed indigenous peoples and their oppressors. Lawyers' lack of training in indigenous law or legal traditions (2) makes it difficult if not impossible to achieve justice or access to justice for the harms colonial oppression inflicts.

The example used in this paper, the IRSSA, examines how state-imposed violations and harms, both collective and individual, ranging from loss of language and culture, loss of family and community life, spiritual harms, intergenerational dysfunction, and sexual, physical and psychological injuries, to loss of opportunity and loss of income were viewed through the lens of indigenous legal principles. With reconciliation being the desired goal of both victims and perpetrators, (3) it was necessary to apply procedures and principles far different than those rooted in traditional legal methods. Applying principles of indigenous feminist theory, indigenous legal theory, and indigenous legal traditions, negotiators were able to contemplate a wider range of harms, design a broader range of reparations, empower victims to articulate what they wanted, justify culturally unique reparations, and lay the groundwork for a better relationship with Canada.

The paper concludes by arguing that the IRSSA proves that in post-colonial societies, traditional, mainstream legal approaches to injuries and harms motivated by systemic discrimination and cultural genocide fall short of achieving justice. In the future, legal processes and remedies must be reconsidered to allow for indigenous perspectives and theories of law to inform them. Law schools, bar societies, the judiciary, and continuing professional education programs must adapt.

Historical context

From the late 1800s to 1996, the Government of Canada implemented a Canada-wide policy under which it compelled indigenous children to leave their homes and attend church-run schools at some 130 locations across every province and territory except for New Brunswick and Prince Edward Island. (4) The policy was designed to assimilate indigenous peoples into European culture by forcing them to abandon their language, culture, religion, and indigenous ways of life. (5) Deliberate and often brutal strategies were used to destroy family and community bonds. While attending the boarding schools, children were denied any meaningful contact with their parents, sometimes for their entire childhoods. About one in three children were abused physically, sexually, and emotionally, (6) and the damage they suffered adversely affected generations of Aboriginal peoples thereafter. Children were subjected to unconsented to medical studies, (7) forced labor without pay, (8) and inferior health care, nutrition, (9) and education. (10) The Truth Commission's research into deaths in residential schools found that some 3,201 deaths could be documented. (11) The Commission points out that the number could be much higher but cannot be proven due to the government's policy of destroying health records of those attending the residential schools. (12) Many of the children who died in the schools were buried on school sites, sometimes in unmarked graves. (13) Often no notice was given and their bodies were never returned to their families and communities. The forced assimilation policy was implemented with the view that the government "could not kill the Indian but it could kill the Indian in the child." (14) These gross human rights violations were committed against at least 150,000 indigenous children, their families and communities over a period of 150 years. Impoverishment, illiteracy, limited employment opportunities and lost income, (15) addictions, psychological disorders, physical injuries and deformities, sexual dysfunction, and numerous other problems (16) affecting hundreds of thousands of Aboriginal people over generations continue to this day.

Many survivors attempted to find recourse for their harms in mainstream court proceedings. Some attempted to use international law, or filed criminal complaints against their abusers. Others pursued individual tort actions or participated in class action lawsuits. Ultimately, the vast majority of residential school claims were brought into the IRSSA. (17) What follows is a discussion of these alternatives, their shortcomings and the reasons why the cases were most often unsuccessful while the settlement agreement was able to successfully address and satisfy claimants' needs.

1. Reparations in International Law

   The obligation to provide reparations for human right abuses, especially gross violations of human rights, has been recognized under international treaty and customary law, decisions of international bodies such as the United Nations Human Rights Committee and Inter-American Court of Human Rights, in national law and practices, and in municipal courts and tribunals. (18) In 1989, renowned human rights expert Theo van Boven was commissioned by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities to prepare a report on reparations for victims of gross violations of human rights. After extensive research into international jurisprudence and relevant human rights norms, he set out the duties of states to make reparations when the international law of human rights has been breached. In his report, he states:

   Every State has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms. The obligation to ensure respect for human rights includes the duty to prevent violations, the duty to investigate violations, the duty to take appropriate action against the violators, and the duty to afford remedies to victims. States shall ensure that no person who may be responsible for gross violations of human rights shall have immunity from liability for their actions [...] Reparation should respond to the needs and wishes of the victims. It shall be proportionate to the gravity of the violations and the resulting harm and shall include: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. (19) The violations perpetrated against the indigenous peoples through the residential schools policy are serious violations of international human rights law set out in a number of international conventions Canada has ratified. They include violations of civil and political rights, (20) the rights to non-discrimination, (21) the right to life, the right of children to be free from sexual violation, (22) and the right not to be tortured or endure cruel, inhuman or degrading treatment. (23) These rights, when violated, give rise to the right to "adequate, effective, [and] prompt reparations". (24) In addition to the international human rights covenants, a basic rule of international customary law is that any breach of an international obligation by states or organs of the state constitutes an international tort, which carries with it the obligation to make reparations. (25)

   Even in the face of the international jurisprudence relating to the duty to make reparations for gross human rights violations, van Boven found that many states disregard it. (26) He comments:

   It is clear from the present study that only scarce or marginal attention is given to the issue of redress and reparation to the victims [...] In spite of the existence of relevant international standards [...] the perspective of the victim is often overlooked. It appears that many authorities consider this perspective a complication, an inconvenience and a marginal phenomenon. Therefore, it cannot be stressed enough that more systematic attention has to be given, at national and international levels, to the implementation of the right to reparation for victims of gross violations of human rights. (27) In December 2005, following van Boven's lead, the United Nations adopted and proclaimed the Basic Principles and Guidelines to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and International Humanitarian Law. (28) The Basic Principles and Guidelines provide a reparations framework as follows:

   1. Compensation to provide victims with monetary and nonmonetary damages to pay for the losses they have experienced;

   2. Rehabilitation to repair the lasting damage of human rights violations through provision of medical, psychological, legal, and social services;

   3. Restitution to restore the condition lost by the victim due to gross violations of human rights, such as the restoration of liberty, citizenship, employment, or property.

   4. Satisfaction to cease continuing violations, disclose the truth, search for the disappeared or the remains of those killed, officially declare and apologize to restore the dignity, reputation, and rights of the victim, impose sanctions against perpetrators, and create commemorations and tributes to the victims.

   5. Guarantee non-repetition by initiating reforms to ensure independence of the judiciary, human rights education, mechanisms for preventing and monitoring conflicts, and...