Notes

[1] RCAP, Report (5 volumes, 1996).

[2] Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions 2000.

[3] Canadian Government, Safeguarding the Future and Healing the Past, (2000).

[4] Restoring Dignity, above n 2, 30.

[5] Ibid, 11.

[6] Ibid, 58-9.

[7] van Boven, T, 1996: Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, UN Doc E/CN4/Sub 2/1996/17, 24 May 1996. (Hereinafter the 'revised van Boven Principles').

[8] Roy, Justice.' 'Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?' (1961) 55 American Journal of International Law 863, 863.

[9] Noriega, J, 'American Indian Education in the United States: Indoctrination for Subordination to Colonialism', in M Annette Jaimes, ed., The State of Native America; Genocide, Colonisation, and Resistance (1992) 380.

[10] Miller, J, Shingwauk's Vision: A History of Native Residential Schools, Toronto (1997) 39.

[11] Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (1995) 205.

[12] RCAP Report, above n 1, Vol 1, 339.

[13] Miller, above n 10, 189.

[14] Barman, J, Herbert, Y, and McCaskill, D, ' The Legacy of the Past: An Overview', in Barman, J, Herbert, Y, and McCaskill, D, (eds), Indian Education in Canada Volume 1: the Legacy (1986) 6.

[15] Dickason, O, Canada's First Nations: A History of Founding Peoples from Earliest Times, (2nd ed, 1997) 311.

[16] Barman, , Herbert, and McCaskill, above n 14, 10.

[17] Milloy, J, A National Crime: The Canadian Government and the Residential School System 1879 to 1986 (1999) 262.

[18] Ibid, 140.

[19] Miller, above n 10, 422.

[20] RCAP, above n 1, Vol 1, 372-3.

[21] Ibid, 378.

[22] Nuu-chah-nulth Tribal Council, Indian Residential Schools: The Nuu-chah-nulth Experience (1996).

[23] Grant, A, No End of Grief: Indian Residential Schools In Canada, Winnipeg (1996) 156-7.

[24] SAGE, Law Commission of Canada Needs and Expectations for Redress of Victims of Abuse at Residential Schools (1998) 13. It should be noted that many Metis children who were sent to the residential schools were not recorded on the schools' registers.

[25] Ibid.

[26] Ibid, 43-54.

[27] Gannage, M, Law Commission of Canada, An International Perspective: A Review and Analysis of Approaches to Addressing Past Institutional or Systemic Abuse in Selected Countries (1998) 26.

[28] "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of human rights. Thus, "victims" not only means persons who have suffered human rights abuses themselves, but also relatives, dependants, loved ones, and communities.' Ibid, 3-4.

[29] For a discussion and references on the sources and obligations under international law to provide reparations refer to Orentlicher, D.F., "Addressing Gross Human Rights Abuses: Punishment and Victim Compensation" in Henkin, L., and Hargrove, J.L., (eds), Human Rights: An Agenda for the Next Century, (Washington DC: The American Society of International Law, 1994), 425-426;.Steiner, H.J., and Alston, P., International Human Rights in Context: Law, Politics and Morals (Oxford: Clarendon Press,1996), 1081-1109; and Minow, M., Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), 91-117.

[30] E/CN.4/Sub.2/1989/13.

[31] van Boven, T., (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final Report, UN Doc. E/CN. 4/Sub.2/1993/8, 2 July 1993, 7 (hereafter the "van Boven Report").

[32] van Boven, T, 1996: Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996 (hereafter the 'revised van Boven Principles').

[33] Above n 31, 56.

[34] Above n 32, 2.

[35] Ibid.

[36] Id, 4.

[37] Ibid.

[38] Ibid.

[39] Id, 5.

[40] RCAP Report, above n 1, Vol 1, 377-378.

[41] Ibid.

[42] For example, refer to R (GB) v Hollett (1996) DLR LEXIS 1334; and B (WR) v Plint (1998) 161 DLR (4th) 538 (BCSS).

[43] RCAP Report, above n 1, Vol 1, 382-3.

[44] Ibid, 382.

[45] Ibid.

[46] Restoring Dignity, above n 2, 51.

[47] RCAP Report, above n 1, Vol 1, 2.

[48] Ibid, 2.

[49] Ibid, 332 - 409 (Chapter 10: 'Residential Schools').

[50] Ibid, 376-380.

[51] Ibid, 383. The recommendation for a public inquiry is made in 1.10.1 at 385, and in Vol 5, 143.

[52] Ibid, 383-384. The RCAP remarked that due to the number of issues it had to consider under its terms of reference it was not possible for it to conduct the public inquiry they recommended. The RCAP noted: '[w]e hope that this chapter of our report opens a door on a part of Canadian history that has remained firmly closed for too long. In our view, however, much more public scrutiny and investigation are needed. A public inquiry into Canada's residential school system would be an indispensable first step toward a new relationship of faith and mutual confidence.' Id, 384-385.

[53] Ibid, 386, recommendation 1.10.3, and in Vol 5, 143-144.

[54] Later published as: Chrisjohn, R D and Young. S, (with Maraun, M), The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada (1997).

[55] Ibid, 109.

[56] Ibid, 109-110.

[57] Letter from the Hon A Anne McLellan, Minister for Justice, to Mr Roderick A Macdonald, President, Law Commission of Canada, 14 November 1997.

[58] Ibid, 381.

[59] Government of Canada, A federal government news release, "Canada's Aboriginal Action Plan Focused on Communities, Founded on Reconciliation and Renewal", [Internet] URL <http://www.ainc-inac.gc.ca/nr/prs/j-a1998/1-9801.html> (to coincide with the Minister's address), commented: 'At the heart of this Action Plan is a commitment to address the needs of communities by building a real partnership with Aboriginal people, including the development of mechanisms to recognise sustainable and accountable Aboriginal governments and institutions. An essential aspect will be to work closely together with Aboriginal people to define the partnership and shape a common vision of the relationship between us. ... Canada's Aboriginal Action Plan has four objectives: renewing the partnerships; strengthening Aboriginal governance; developing a new fiscal relationship; [and] supporting strong communities, people and economies.'

[60] The Honourable Jane Stewart, Minister of Indian Affairs and Northern Development, Statement of Reconciliation: Learning from the Past, [Internet] URL <http://www.ainc-inac.gc.ca/nr/spch/1998/98j7_e.html> 7 January 1998. For example refer to The Toronto Star, 25 March 1998, at A 21. The Statement was signed by Minister Stewart and The Honourable Ralph Goodale, Federal Interlocutor for Metis and Non-Status Indians.

[61] For example, the National Chief of AFN, Phil Fontaine accepted the apology and praised the federal government's commitment of the Aboriginal-controlled Healing Fund. However he added: "[t]he Healing Fund, which is to support community healing, does not in any way address or mitigate the rights of individual First Nations citizens to further individual compensation from the government and others". AFN Secretariat, "Residential Schools Healing Fund Announced", (March 1998) Residential School Update, 1.

[62] Letter from the Hon A Anne McLellan, Minister for Justice, to Mr Roderick A Macdonald, President, Law Commission of Canada, 14 November 1997.

[63] Law Commission of Canada, Minister's Reference on Institutional Child Abuse: Discussion Paper (1999) 15.

[64] Refer to Safeguarding and Healing, above n 3.

[65] Ibid.

[66] Ibid.

[67] The majority of Aboriginal people the author spoke with remarked that the federal government had performed better on the healing fund relative to the other three measures.

[68] Above n 2, 51.

[69] [1995] 2 SCR 97.

[70] Ibid, para 62.

[71] D Orentlicher, "Addressing Gross Human Rights Abuses: Punishment and Victim Compensation," in L Henkin and J Hargroves (eds), Human Rights in Context: Law, Politics and Morals (1996). 457.

[72] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report Of The