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The In-Principle Agreement as to Canadian Residential Schools Compensation
Barbara Ann Hocking[*]
The HREOC Bringing Them Home Report documents the legacy of the removals of part-Aboriginal children from their families under long-standing Australian assimilation policies. Although State and Territory Parliaments have made apologies since the publication of their report, the lack of an Australian response at the Federal level contrasts with the positive, active and ongoing responses in Canada. This comment outlines the most recent Canadian development: an ‘in-principle’ agreement as to compensation.
The Canadian Residential Schools
Laws requiring Indian children to attend residential schools underpin the Canadian equivalent of Australia’s ‘Stolen Generation’.[1] As in Australia, the harms were inflicted in a systematic way, largely without appropriate scrutiny or response to complaints of mistreatment of children in residential schools.[2]
Much of the resulting destruction and abuse was cultural. Nicholas Flood Davin, who was sent in 1879 by the Canadian government to report on industrial schools for Indians operating in the United States, recommended adoption of the residential schools model. He observed the need to remove Indian children from ‘the influence of the wigwam.’[3] Similar attitudes to ‘breeding out’ Aboriginality, largely based on racial stereotyping, formed the basis of Australian assimilation policies, as the Bringing Them Home report makes clear.[4]
The assimilationist vision of Canadian residential schools was acknowledged in the 1996 Report of the Royal Commission on Aboriginal People. As Lorena Fontaine explains, the schools sought to ‘eliminate their [Aboriginal] culture’ and provided what was often an ‘abusive environment’. Fontaine argues that:
The cultural racism of the Residential School era also resulted in the legacy of cultural harm, which is the breakdown of the spiritual, moral, health and emotional fabric of Indigenous people.[5]
The 1996 Report recommended various forms of remedial action by governments. In the face of the government’s failure to respond, individuals commenced litigation.
The most well-known residential schools litigation was that commenced by former students of the Alberni Indian Residential School. In 1996, 27 former students launched a lawsuit for abuses committed while they were resident at the school, naming both the Canadian Government and United Church of Canada as defendants.[6]
The first instance decision of Justice Brenner in July 2001 dealt with the seven out of 21 First Nations plaintiffs who had failed to reach out of court settlements. Both the United Church and the federal Government conceded that the students suffered abuse at the Alberni School[7] and Justice Brenner found that there was complicity between Church and State. Justice Brenner found Canada and the United Church of Canada vicariously liable for the provable damages suffered by six of the remaining seven plaintiffs. It is arguable that the damages awarded for those plaintiffs whose claims succeeded were unusually low. Nevertheless, Justice Brenner handed down a landmark legal acknowledgment of apportionment of liability between two traditionally unassailable parties: the Government of Canada (75%) and the United Church of Canada (25%).
Justice Brenner’s apportionment of responsibility was appealed. The British Columbia Court of Appeal determined that the United Church in fact bore no legal responsibility for the injuries of the plaintiffs. A rationale deployed by the Court for the ruling as to the 100% liability of Canada was that of a concept of ‘charitable immunity’ applying to the Church.[8] However, in October 2005, the Supreme Court of Canada reinstated the original decision, with the matter now finally determined as concerning a division recognizing the vicarious liability of Canada (75%) and Church (25%).[9]
During the course of the Aberni litigation, the Canadian Government initiated a compensation process, using alternative dispute resolution processes in order to resolve claims. The Government set up ‘Indian Residential Schools Resolution Canada’ to bring about:
reconciliation and a renewal of relationships between aboriginal people who attended these schools, their families, and communities, and all Canadians.[10]
A former Justice of the Supreme Court of Canada, Justice Frank Iacobucci, was appointed as the Government’s representative in this initiative, and was due to hand down his recommendations to the Government in March 2006. However, an Agreement in Principle between the parties was arrived at ahead of time, apparently in anticipation of an impending federal election. In this case, a political imperative existed to prompt a resolution. The ultimate implementation of the Agreement in Principle could also depend on political will.
On 23 November 2005 the Deputy Prime Minister and Minister responsible for Indian Residential Schools Resolution Canada (the Honourable Anne McLellan), the Minister of Justice and Attorney-General (the Honourable Irwin Cotler) and the Minister of Indian Affairs and Northern Development (the Honourable Andy Scott), announced that an Agreement in Principle had been reached between the parties involved in the resolution of the legacy of Indian residential schools.
The Agreement in Principle has been generally well received, but attracted some criticism because it does not contain an apology and leaves the door open to further court case. It arguably does not reach out to future generations as it restricts payments to the aggrieved individuals, thus perpetuating the failure of the law to accommodate inter-generational harms.
It seems extraordinary by way of comparison with Australia that, only a decade after the 1996 Royal Commission acknowledged the assimilationist vision of the Canadian residential schools, an in-principle agreement as to compensation has been realised in Canada.
Legal compensation claims in Canada appear to have been more readily settled by the Government, perhaps in response to the spur provided by sexual assault claims.[11] Class actions, a greater willingness to impose direct and vicarious liability on the Government and Churches for sexual assaults committed by employees in the residential schools, together with greater political sympathy, appear to have produced a more comprehensive response to the Canadian past.[12] There has been a strong governmental commitment to strengthening relationships with Canada’s First Nations, Métis and Inuit people. This contrasts with the lukewarm response to Bringing Them Home in Australia, and it is interesting to speculate as to the differing approaches of these two countries to the legacy of their assimilation policies. Why, despite arriving later at the acknowledgement that these were policies of assimilation, does the Canadian response to their legacy appear so considerably more forthcoming than that of Australia? The Canadian response seems more in keeping with European developments, and comparisons can be made, for example, with recent Sami-Norwegian state relations.[13]
It would appear that there is also a clearer and more persuasive role accorded representative Indigenous bodies in Canada. The Agreement in Principle was reached between the Federal Representative, Judge Iacobucci, and legal counsel for former students, legal counsel for the Churches, the Assembly of First Nations and other Aboriginal organisations. The demise of ATSIC in Australia has left a political representative gap that is arguably occupied by the Assembly of First Nations in Canada.[14] Perhaps Canada is at a different point from Australia in terms of Peter Russell’s observation that a nation’s recognition of the human right of land ownership and political participation post-colonialism reflects ‘the nature of the political community on which the constitution is based.’[15]
There are considerable similarities and differences between the Australian and Canadian compensation claims and the governmental responses to those claims.[16] A key commonality to the experiences of victims in both Australia and Canada has been highlighted by Bruce Feldthusen in the context of the Alberni claims:
Might the consistent theme in the jurisprudence of both countries be how difficult it is for victims of sexual assault to obtain legal redress?[17]
While there has been one case where a member of the Stolen Generation was awarded compensation for the injuries arising from the sexual assault she endured while under the ‘care’ of the State,[18] there is a paucity of successful tortuous litigation in Australia.[19] Yet models of compensation are there and denial of their relevance hints of political not factual judgment, as Regina Graycar has persuasively argued.[20]
While there have been disappointments over past decades, the announcement of the residential schools in-principle agreement places Canada at the forefront of compensation jurisprudence in the context of the harms sustained by individuals and communities due to past assimilation policies.
In contrast, at the political level in Australia there is an apparently intractable view as to the compensation recommendations of the Bringing Them Home report. The rationales for the refusal to consider compensation have been only partly articulated but have included arguments that there are no compensation models available and no adequate measures of the harm. It is clear that Canada now recognises that the injuries of stolen or removed generations of Indigenous communities extend to losses of cultural participation, kin, education, knowledge, language, spirituality, traditional practices, laws and management of the land, and, furthermore, that such injuries are compensable. While the emphasis in the Canadian Agreement in Principle remains upon individual receipt of a monetary compensation payment, grounding those payments in the concept of ‘common experience’ recognises that the injuries suffered constitute human rights violations. The establishment of the Canadian Inquiry and the proposed resolution offer a persuasive model of comparison for a recalcitrant Australia.
* Dr Barbara Ann Hocking is a Senior Lecturer in the School of Justice Studies at the Faculty of Law at Queensland University of Technology Faculty of Law, Brisbane, Australia. She is currently President of the Association of Canadian Studies in Australia and New Zealand (ACSANZ), and a member of the International Commission of Jurists (ICJ) Queensland Chapter. She recently edited Unfinished Constitutional Business? Rethinking Indigenous Self-determination (2005).
[1] Ibid 188.
[2] Ibid.
[3] Russell discusses the Davin report at Ibid 194.
[4] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Australia), Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander from their Families (2001), 30.
[5] Lorena Sekwan Fontaine, ‘Canadian Residential Schools: The Legacy of Cultural Harm’ 5(17) Indigenous Law Bulletin 4, 4.
[6] Ibid.
[7] Blackwater v Plint (2001) 93 B.C.L.R (3d) 288.
[8] See United Church of Canada Residential Schools Implications of the Supreme Court Decision in the Barney (Blackwater) Lawsuit (2005) <http://www.united-church.ca/residentialschools/2005/implications.shtm> at 30 March 2006
[9] Ibid.
[10] Mario Dion, Deputy Minister, Indian Residential Schools Resolution Canada, ‘Residential School Claims Process is Progressing’ Letter to the Editor, Ottawa Citizen, 14 November 2005.
[11] Pamela O’Connor, ‘Squaring the Circle: how Canada is Dealing with the Legacy of its Indian Residential Schools Experiment [2000] AUJlHRights 9; (2000) 6(1) Australian Journal of Human Rights 188, 215.
[12] Ibid. It is perhaps interesting to note here that the concept of a fiduciary obligation has at least in one view been more highly developed under Canadian law with respect to the relationship between native Americans and the State than has proved possible under Australian law. In the Australian context, note the comments of Melissa Abrahams in ‘A Lawyer’s Perspective on The Use of Fiduciary Duty With Regard To The Stolen Generation’ [1998] UNSWLawJl 18; (1998) 21 UNSW Law Journal 213.
[13] <http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousWorld/CircumpolarNorth.pdf> at 30 March 2006 .
[14] For an overview of that demise see Philip Morrissey in Barbara Ann Hocking (ed), Unfinished Constitutional Business? Rethinking Indigenous Self-determination (2005).
[15] Peter Russell in Ibid.
[16] O’Connor, above n 11.
[17] Bruce Feldthusen, ‘Vicarious Liability for Sexual Abuse’ (2001) 9 Tort Law Review 173, 178.
[18] See Alexis Goodstone, ‘Stolen Generations Victory in the Victims Compensation Tribunal’ [2003] IndigLawB 6; (2003) 5 (22) Indigenous Law Bulletin 10.
[19] See the litigation concerning Stolen Generation members Peter Gunner and Lorna Cubillo, especially Cubillo v The Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 and headnote at [2001] AUIndigLawRpr 36; (2001) 6(3) Australian Indigenous Law Reporter 61.
[20] See Regina Graycar, ‘Compensation for the Stolen Generation: Political Judgments and Community Values’ (1998) 4 UNSW Law Journal 22.
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