Indigenous Legal Principles: A Reparation Path for Canada’s Cultural Genocide

ABSTRACT

This article argues that Canada’s justice system and the lawyers that operate within it are ill prepared to comprehend or reconcile the relationship between colonial legal systems and indigenous systems of law. They do not get training in indigenous law, so vital to crafting appropriate reparations for the wrongs justified by colonial practices and prejudices, and that could open doors to reconciliation and healing. The example used in this article to illustrate how the two systems of law could successfully interact is the historic Indian Residential School Settlement – the largest settlement in Canadian history, almost entirely based on Indigenous law and legal theory, and harmonized in part with principles of the common law of tort. The Indian Residential School Settlement proves that in post-colonial societies western frameworks lack the tools necessary to remediate injuries motivated by systemic discrimination, which, in this case, was cultural genocide. Different perspectives and legal theories are necessary to craft appropriate reparations and the processes used to achieve them. Unless indigenous laws, traditions, and practices are central to the design and implementation of reparations, state responses to the cultural genocide perpetrated against indigenous peoples in Canada will not open pathways to either healing or reconciliation.

KEYWORDS:

• Reparations
• healing
• reconciliation
• truth commission
• indigenous
• genocide
• Indian residential schools settlement

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Original documents on the breadth of this plan can be found in Canada. Annual Report, 1880, Department of the Interior. “Report on Industrial Schools for Indians and Half-Breeds” by Nicholas Flood Davin. March 14, 1879.

2. Original documents on the aims of these schools can be found at Library and Archives Canada, RG 10, vol. 6810, file 470-2-3, vol. 7, Evidence of D.C. Scott to the Special Committee of the House of Commons Investigating the Indian Act amendments of 1920, (L-2)(N3).

3. The phrase has been attributed to Duncan Campbell Scott but, more accurately, it originated in the US military.

4. The Settlement Agreement provides for loss of opportunity, described as the chronic inability to obtain employment, chronic inability to retain employment, periodic inability to obtain or retain employment, inability to undertake or complete education or training resulting in underemployment and/or unemployment, or diminished work capacity. Claims can alternatively be made for actual income loss.

5. Some of the harms listed as compensable in the compensation model are loss of self-esteem, pregnancy, forced abortions, forced adoptions, psychotic disorganization, PTSD, self-injury, sexual dysfunction, inability to form or retain relationships, eating disorders, severe anxiety, guilt or self-blame, lack of trust in others, addictions, nightmares, aggression, hypervigilance, anger, retaliatory rage, and humiliation.

6. Genocide is an attempt to destroy a people, in whole or part. It is a crime under international law. The definition of genocide in the Convention is (a) killing members of the group; (b) causing serious bodily harm or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births in the group; and (e) forcibly transferring children from the group to another group.

7. It entered into force on January 12, 1951.

8. The United Nations Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948 does not use the phrase “cultural genocide,” but says genocide may include causing serious mental harm to a group. Supreme Court Chief Justice Beverley McLachlin said in a May 28, 2015 speech that Canada had attempted to commit “cultural genocide” against aboriginal peoples. Former Liberal prime minister Paul Martin used the term “cultural genocide” in 2013 when he testified before the Truth and Reconciliation Commission. McLachlin’s and Martin’s comments can be found in Fine (2015) and “Paul Martin” (2013). For a summary of opinions and analysis see Amir (2018).

9. Canada’s representative at the negotiations was the Minister of Foreign Affairs, Lester B. Pearson, who subsequently became Prime Minister of Canada and was awarded the Nobel Peace Prize.

10. Arguments have been made by some experts that the forcible transfer of children to another human group could found a case for genocide for residential school survivors, as well as causing serious mental harm to members of the group.

11. The Statute entered into force on July 1, 2002.

12. In this companion case to Bazley v Curry, the non-profit organization that hired the sex abuser as a Program Director for the children at the club was not vicariously liable because the Court said there was not a sufficiently clear connection between the job-created power and the sexual assaults.

13. Fortunately, by the time this case was decided in the Supreme Court, vicarious liability had already been negotiated by the parties to include all employees on the premises whether or not they had been hired to have contact with children. This was a very important term of the agreement because unless employers could be held vicariously liable for the acts of all of their employees, most victims would not have met the legal requirements for compensation.

14. Crown immunity still exists for intentional torts committed prior to 1949 in British Columbia and for policy decisions as opposed to operational ones. See Just v BC [1989] 2 SCR 1228. In Manitoba, the immunity is available for intentional torts committed prior to 1953.

15. In Blackwater v Plint [2005] SCC 58, physical abuse could not be claimed because it fell outside the limitation period. This enabled Canada to cynically use the “crumbling skull” defence which allowed them to argue that because the physical assaults were so severe (but not compensable), the claimant, because of his already “crumbling skull” would have suffered his psychological and opportunity losses regardless of the sexual assaults, concluding no damages were payable. See also Re Winding–up of the Christian Brothers of Ireland in Canada [2000] SCCA No.277 (QL).

16. In the Blackwater decision, the churches were found to be 25 percent liable and Canada 75 percent liable. The court ruled that the churches could not claim charitable immunity. In the Settlement Agreement, the Crown paid 100% of the damages, seeking reimbursement through indemnity agreements with the church defendants.

17. The committee report found that the Minister’s evidence in support of the ADR program was “unapologetic and self-congratulatory with respect to both the underlying framework and the results of the ADR process. It disclosed her apparent disconnectedness from the experience of the survivor witnesses, for whom she has a particular duty of care and to whom she is not listening.”

18. The conference was co-chaired by National Chief Phil Fontaine and Professor Kathleen Mahoney. The agenda is at “Residential Schools Legacy” (2010).

19. The letter to Deputy Minister Mario Dion can be accessed at https://kathleenmahoney.files.wordpress.com/2015/11/adr-critique-2nd-dion-leter-irs.pdf.

20. The AFN Report points out that among several shortcomings, no collective reparations such as a truth commission or healing supports were offered. Beside being subject to a cap on awards, compensation under the ADR was discriminatory. It varied among provinces; some church denominations contributed to the ADR while others did not, with the result that claimants from schools whose church did not contribute received only 70% of the assessed award. Claimants from BC, Ontario or the Yukon could receive up to $50,000 more for the same injuries than survivors who lived in other provincial jurisdictions because case law in those provinces had determined a higher level of compensation than the other provinces. The ADR was also gender biased and culturally inappropriate in many respects. The Bearing Report could be accessed at https://kathleenmahoney.files.wordpress.com/2019/06/bearing-report.pdf.

21. The Political Agreement can be seen at https://kathleenmahoney.files.wordpress.com/2019/01/a-mclellan_letter.pdf.

22. The AFN’s statement of claim in Fontaine et al. v Canada (Attorney General) (August 5, 2005), Toronto 05-CV-294,716 CP (ONSC) (Statement of Claim) can be accessed at https://kathleenmahoney.files.wordpress.com/2018/04/afn-issued-statement-of-claim_2005.pdf. The AFN made its claim on behalf of four classes of people: survivors, deceased survivors, families of survivors, and Aboriginal peoples generally. For the four classes, they claimed compensation for cultural, linguistic and social damage, social and educational programs, healing initiatives, counseling, commemoration, and truth and reconciliation hearings as well as compensation for sexual, physical and emotional abuse.

23. A position at the negotiating table was crucial for the AFN because in the event that the settlement negotiations failed, it was the only party to claim collective remedies including the truth and reconciliation commission, the archive and research center, healing and commemoration funds, the early payment for seniors, and the compensation for loss of language and culture and loss of family life based on the formula of $10,000 for the first year and $3,000 dollars per year or portion of a year thereafter.

24. Several class actions had been filed in the courts but none had indigenous survivors on their negotiating teams.

25. Ken Young, Charlene Belleau, and the National Chief were survivors, the National Chief having attended residential schools for 10 years.

26. Bob Watts was the son of residential school survivors and a former Deputy Minister.

27. Fred Kelly, the elder advising the team, was also a residential school survivor.

28. Kathleen Mahoney was a non-practising lawyer and professor of international human rights and humanitarian law, feminist legal theory, torts, and tort theory.

29. Aaron Renert was a non-practising lawyer, educator, and mathematician, and John Kingman Philips was a practicing class action lawyer with extensive experience seeking social justice for marginalized groups.

30. Blackwater v Plint is a good example where the judge accepted the “crumbling skull” argument. For a thorough analysis of the crumbling skull misuse in residential school cases, see Roach (2014).

31. This ancient, ceremonial pipe was smoked at peacemaking, treaty negotiations and events such as the consecration ceremony.

32. See also the stories and histories from the Omushkego Crees in Bird (2007), which describe similar ceremonies and traditions.

33. For a record of some of the feedback from consultative sessions, see Sigurdson (2016).

34. Some indigenous feminist theorists writings consulted include Montour-Angus (1999), Green (2017), and Snyder (2013).

35. The AFN’s key and central role was set out in the Political Accord. See Political Agreement at https://kathleenmahoney.files.wordpress.com/2019/01/a-mclellan_letter.pdf.

36. Success can be measured by the numbers of people who opted into the agreement: 98% of the survivors made this choice rather than proceeding through the courts; 77% of 105,530 applicants for the common experience payment received payment; more than 59% of the 38,099 individual assessment process claims were successful with the average payout being $111,758.00. The TRC activities included 155,000 visits to national events; regional events held 238 days of local hearings in 77 communities across Canada. The Commission received more than 6,750 statements from survivors and their families. See INAC (2018) for more statistics.

37. The Government insisted on labeling this portion of the fund the “common experience payment” as it did not want to face the prospect of legal actions in the future for language and cultural and family life losses.

38. The calls to action in the TRC’s Final Report state: “We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism. We call upon law schools in Canada to require all law students to take a course on Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”

Additional information

Notes on contributors

Kathleen Mahoney

Kathleen Mahoney is a Queen’s Counsel and Fellow of the Royal Society of Canada. She is a Professor of Law at the University of Calgary specializing in the law of Tort, Human Rights as well as Indigenous Legal Principles. She was the Chief Negotiator for the Assembly of First Nations in the historic Indian Residential Schools Settlement Agreement in Canada, the largest settlement in Canadian history.