Author:	Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU) Senior Lecturer, Murdoch University School of Law
Subjects:	Indians Of North America Canada Residential Schools History Indigenous peoples - Canada (Other articles) Indigenous peoples - government relations (Other articles)
Issue:	Volume 8, Number 4 (December 2001)
Category:	Refereed Articles

Contents:

• Introduction
• Brief History Of Aboriginal Residential Schools
• Generally
• Style of education
• Conditions
• Concluding comment
• Reparations - Demands And Responses
• Introduction
• International Law
• Chronology of Demands for Reparations in the Residential Schools Context
• Canadian Royal Commission on Aboriginal Peoples
• Responses
• Discussion
• Public inquiry
• Apology
• Monetary compensation
• Conclusion
• Notes

The author would like to acknowledge the assistance of the Canadian Government in the awarding of a Faculty Research Program Grant to assist the author travel to Canada to research for this article. The author would also like to acknowledge the comments of the two anonymous referees. All opinions and errors are, of course, those of the author.

Introduction

1. In 1997 the Canadian Royal Commission on Aboriginal Peoples ("RCAP") released its Final Report ('RCAP Report').[1] More recently, the Canadian government requested the Law Commission of Canada ("LCC") to investigate institutional child abuse. The LCC report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions ('Restoring Dignity') was released in March 2000.[2] On the 8 April 2000, the Canadian government released its response to Restoring Dignity, titled Safeguarding the Future and Healing the Past ('Safeguarding and Healing Plan').[3] All three reports, in part, dealt with the history, legacy and demands for reparations for those Aboriginal children removed from their families and sent to residential boarding schools. This is not surprising as was remarked in Restoring Dignity: '...for all the elements of similarity with abuse in other types of institutions, Aboriginal children suffered in a unique way in residential schools'.[4] It is for this reason that the LCC devoted half of its research efforts to an investigation of the impact of child abuse on Aboriginal children, most of which took place in residential schools.[5] The Federal Government in Safeguarding and Healing Plan states that one of its three themes is: 'responding to the legacy of sexual and physical abuse in Indian residential schools'.

2. As a lowest common denominator, the Canadian government targetted social groups, on the basis of "race" or colour, removed the youngest members of these groups, often forcibly or at least without genuine parental consent, and attempted to assimilate those children into the majority cultures with the aid of educational institutions, government and parochial.[6] There is no question that abuse occurred in these institutions, and was allowed to continue to occur, for many, many decades.

3. This article focuses on the Canadian residential schooling system. It commences with a brief history of the residential school experience before moving onto the main part of the article, a discussion on the demands for reparations and responses to those demands. Reparation includes all types material and non-material redress - restitution, compensation, rehabilitation and, satisfaction and guarantees of non-repetition[7] The right to reparations for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India wrote: 'That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.'[8]

   Brief History Of Aboriginal Residential Schools

   Generally

4. Jesuit missionaries opened the first Aboriginal day school on the St Laurence River in 1611.[9] The Franciscans followed up with their own Aboriginal boarding school in 1620.[10] 'Education' was provided by Christian missionaries and ministers.

5. The 1837 House of Commons Report held that the needs of Aboriginal children would best be served in being prepared for Christianity and British society if they were removed from their families.[11] In the late 19th century and beyond, there was virtual unanimity in such a policy. The RCAP states that 'no one involved in Indian Affairs doubted for a moment that separation was justified'.[12] The first Canadian Prime Minister, Sir John MacDonald, stated, in 1887, that the aim of the government's policy was 'to do away with the tribal system and assimilate the ... [Aboriginal]... people in all respects with the inhabitants of the Dominion, as speedily as possible'.[13]

6. In 1879, Nicholas Flood Davin reported to the Canadian government about Canadian Aboriginal education. The Davin Report recommended that the Canadian government fund schools administered by missionaries with a demonstrated commitment to the 'civilising' of Canadian Aboriginal peoples.[14] A year later, the residential school system for Aboriginal children commenced in earnest. In 1920, the Indian Act was amended to require that all First Nations children attend a residential school for at least ten months a year. Church involvement in Aboriginal education was enormously important, and the formal relationship between the churches and the state did not end until 1969.

   Style of education

7. There was the desire to bring Aboriginal peoples within the realm of western society. Thus, much of the education practice, and the very way of life in residential schools, was aimed at inculcating European beliefs in Aboriginal children. In truth, little changed in Aboriginal education in such institutions for generations.

8. Education was not central to the purpose of residential schools. Only a few hours each day were set aside for school or lessons. Often termed the 'half-day' system, this entailed, as its name implies, at best a half-day schooling regime. The rest of the day, or much of it, was focused on what might loosely be called 'vocational' training. Theoretically, this involved training Aboriginal children and adolescents in some useful trade or occupation. More often than not, however, the children merely provided for their own survival.

9. The levels of academic education achieved by the Aboriginal peoples in Canada illuminates the lack of serious education focus in their schooling. In 1950, only 10 per cent of Canadian Aboriginal school-aged children had passed beyond Grade 6 level education, whereas 30 per cent of non-Aboriginal Canadian children had passed that level.[15] Census figures from the 1951 Canadian Census show that 40 per cent of all Canadian Aboriginal peoples over the age of five years reported having received no formal education.[16]

   Conditions

10. The most basic levels of health were often not available to Aboriginal children in residential schools. In 1948, the Canadian Departmental Superintendent summed up the nature of the problem when he stated that if he 'were appointed by the Dominion Government for the express purpose of spreading tuberculosis, there is nothing finer in existence than the average Indian Residential School'.[17]

11. The hardships endured by many Aboriginal children in residential schools severely affected their physical health and the abuses they suffered affected both their physical and mental wellbeing. Milloy states that '[t]here is no doubt that abuse was a persistent phenomenon' of the residential school system.[18] Miller notes that the lack of supervision by government officers 'made it all too easy for the misfits, the sadists, and the perverts to mistreat and exploit the children'.[19] One former residential school student described, in 1966, memories of recaptured runaways from the school being 'forced to run a gauntlet where they were "struck with anything that was at hand"'.[20]

12. Sexual abuse was also a common experience. A Canadian ministerial adviser on sexual abuse commented, in 1990, that 'closer scrutiny of treatment of children at residential schools would show that all children in some schools were sexually abused'.[21]

13. The extent and range of abuses and 'sufferings' emanating from removal from family to residential schools are numerous. The Nuu-chat-nulth researchers[22] group the types of abuses as follows: separation from family; physical conditions at the schools; loss of native language; abuse (emotional, physical, sexual, spiritual); and child labour.

14. Another researcher writes:

    Not every child experienced sexual and physical abuse, but every child experienced the devaluing of parents and culture. Psychological and spiritual abuse were institutionalised, no child could escape the debilitating consequences of being victimized and brainwashed. ...since the children were taught to abhor how their parents lived, no more diabolical plot could have been conceived to destroy the harmony ...and effectiveness of the culture.[23]

    Concluding comment

15. Between the mid-1800s and 1970, 'up to one third of all aboriginal children were confined in residential schools, many for the majority of their childhood'.[24] The last residential school closed its doors in either 1983 or 1984.[25] The residential school experiment led to many Aboriginals suffering hardship and abuse, including sexual abuse. Many Canadian Aboriginals continue to endure the effects of the removal of children from families to be institutionalised in residential schools. Loss of culture, family, connection and trust, to name but a few losses, coupled with memories of physical and sexual abuse has resulted in many Aborigines being unable to properly function as parents and members of communities. Often this has been played out through substance abuse, contact with the criminal justice system, poor health and early death.[26]

    Reparations - Demands And Responses

    Introduction

16. How is it best to make reparation? The answer depends on the context in which reparations are sought. The factors which influence the process and content of reparations include, '[t]he "grossness" of the abuses; ...the pattern of previous repression and violence; the cultural background; the legal system; the socio-economic circumstances; and the country's position in the world order'.[27]

17. Proportionality of response to the wrong is an obvious linkage. So is the need to consider the capacity of governments to provide reparations, which must, in the main, come from the resources of governments. The stability of the legal and political systems is also important. However, the interests and views of the victims[28] are paramount. This is because it is the victims who have suffered the abuses; they are in the best position to indicate the effects of abuse and the best form of reparation. The survivors of abuse have the weakest voice. Further, it is vital that their interests and views are not sidelined or marginalised in the political debate that inevitably results from a process of 'awarding' reparations to victims.

18. Of course it is necessary to consider all of the factors mentioned above when making a recommendation for reparations. Significantly, the recommended measure must consider whether the government or the political system is able to implement the recommendation. However, 'political difficulty' is no excuse for inaction. Governments must represent the interests of the whole community, including the victims of past human rights abuses.

    International Law

19. The obligation to provide reparations for human right abuses, especially gross violations of human rights, has long be recognised 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, national law and practices and municipal courts and tribunals.[29] In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities commissioned Professor Theo van Boven to undertake a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.[30] A final report, including proposed basic principles and guidelines, was submitted in 1993.[31] A revised set of basic principles and guidelines was submitted in 1996.[32]

20. The van Boven Report examined relevant existing international human rights norms and decisions of international courts and other human rights organs. It concluded that 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".[33] Van Boven states:

    In accordance with international law, States have the duty to adopt special measures, where to permit expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.[34]

21. Van Boven synthesised the contents of reparations to restitution, compensation, rehabilitation and, satisfaction and guarantees of non-repetition.[35] Restitution refers to measures such as restoration of liberty, family life, citizenship, return to one's place of residence and, return of property seek to re-establish the situation that existed prior to the violations of human rights and humanitarian law.[36] Compensation refers to monetary compensation for any economically assessable damage resulting from violations of human rights and humanitarian law.[37] Rehabilitation includes medical and psychological care as well as legal and social services.[38] Satisfaction and guarantees of non-repetition includes, inter alia, an apology (including public acknowledgment of the facts and acceptance of responsibility )and, measures to prevent recurrences of the violations.[39]

    Chronology of Demands for Reparations in the Residential Schools Context

22. The disclosure in late 1990 by Mr Phil Fontaine, Grand Chief of the Assembly of Manitoba Chiefs, that he suffered abuse in the Roman Catholic residential school in Fort Alexander, Manitoba,[40] was a major catalyst for increased public focus on the removal of Aboriginal people from their families to residential schools. Since 1990 there has been an increased focus by Aboriginal people, governments and churches on the impact of residential schools on those that attended them.[41] Civil litigation has accompanied this increased focus, which has, in effect, provided further allegations and 'evidence' of the negative impact of the removal policies and practices which placed Aboriginal children in residential schools.[42] Further, victims have called for the government to make reparations without the need to resort to litigation.

23. In late 1992 or early 1993, the British Columbia First Nations Summit demanded that a full judicial and public inquiry be held into the Aboriginal residential school system.[43] This was in response to a stay in proceedings in the criminal trial of a former Catholic Priest employed by Department of Indian Affairs as the Principal of a residential school. It was alleged that he had sexually assaulted two female staff members and two female students. The British Columbia Supreme Court stayed the proceedings on the ground that the provincial Crown abused the judicial process by failing to discover all relevant information to the defence. The Attorney General of British Columbia commenced an appeal against the stay of proceedings, appointed a special prosecutor and launched an internal review of the Crown's management of the case. The call for a judicial and public inquiry into the case and the Aboriginal residential school system was rejected by the Attorney General on the basis it could jeopardise the appeal.

24. From 20 to 24 October 1993, the Assembly of Manitoba Chiefs sponsored its first residential schools conference. Over 300 former residential school students attended the conference. The conference report, which was submitted to the federal government and churches, made recommendations regarding healing, funding for healing activities, monetary compensation and church apology.

25. On January 21 1994, a press conference was held by the "Petabek Keykaywin", the collective name of a group representing former students of St. Anne's Residential School on Fort Albany, Ontario. The group appointed mediators to approach the Archdiocese of Moonones, the Oblates, the Gray Nuns and Federal and Ontario governments with a view to developing a dispute resolution mechanism to establish a healing process within the community.

26. On 26 January 1994, pursuant to a resolution passed by the National Executive Council of the Anglican Church of Canada, Archdeacon Jim Boyles, General Secretary of the Anglican Church of Canada, wrote to the Federal Minister for Indian Affairs, requesting the Federal government 'to acknowledge and apologise to Aboriginal people for the damage done through the residential schools and other programs designed to assimilate Aboriginal people by suppressing their culture'.

27. The Anglican Church's call for an acknowledgement and apology from the federal government is consistent with the calls from the Aboriginal Rights Coalition.[44] The Coalition is an ecumenical coalition of national churches, church bodies and First Nations. The Assembly of First Nations ('AFN') has also been active in seeking reparations. The AFN establish a National Lobbying Committee on residential schools. The committee has advocated for a national inquiry, an apology and monetary compensation.[45] Finally, the Restoring Dignity stressed the importance of a 'holistic approach to redress and healing for Aboriginal survivors and their communities.'[46]

28. The RCAP hearings increased media and public attention on the policies and practices that led to the systematic removal of Aboriginal children from their families to residential schools. The RCAP made a number of recommendations on this issue, some of which are outlined in the following.

    Canadian Royal Commission on Aboriginal Peoples

29. The RCAP was established on 26 August 1991. In producing the RCAP Report, it undertook 'four years of consultations, research and reflection'.[47] The RCAP mandate was to:

    ...investigate the evolution of the relationship among aboriginal peoples (Indian, Inuit and Metis), the Canadian government, and Canadian society as a whole. It should propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today. The Commission should examine all issues which it deems to be relevant to any or all of the aboriginal peoples of Canada ...[48]

    Not surprisingly, one of those issues was the Aboriginal residential school system.[49] The RCAP commissioned a number of reports and conducted a number of hearings into the residential school issue. It heard from former students of the schools, Aboriginal representatives, church officials, academics and professionals and government officials. The reports and hearings detailed a number of stories and allegations of abuse at the residential schools. The RCAP was also given access to a number of Department of Indian Affairs' files on residential schools that substantiated many of the abuse claims. The RCAP also detailed the continue effects of the abuse and separation from family and culture.[50]

30. The RCAP was very keen on the establishment of a public inquiry into the residential school system:

    Our [RCAP] research and hearings indicate that a full investigation into Canada's residential school system, in the form of a public inquiry ... is necessary to bring to light and begin to heal the grievous harms suffered by countless Aboriginal children, families and communities as a result of the residential school system. The public inquiry's main focus should be to investigate and document the origins, purposes and effects of residential school policies and practices as they relate to all Aboriginal peoples, with particular attention to the manner and extent of their impact on individuals and families across several generations, on communities, and on Aboriginal society as a whole. ...It [the inquiry] should be authorized to recommend whatever remedial action it believes necessary for governments and churches to ameliorate the conditions created by the residential school experience. Where appropriate, such remedies should include apologies from those responsible, compensation on a collective basis to enable Aboriginal communities to design and administer programs that assist the healing process and rebuild community life, and funding the treatment of affected people and their families.[51]

    The RCAP adds:

    We believe that a public inquiry into the residential schools is an appropriate social and institutional forum to enable Aboriginal people to do what we and others before us have suggested is necessary: to stand in dignity, voice their sorrow and anger and be listened to with respect. ...

    A public inquiry is also an appropriate instrument to perform the investigative function necessary to understand fully the nature and ramifications of the residential school policies.[52]

31. The RCAP also recommended that the federal government:
    • fund the establishment of a national repository of records and video collections related to residential schools, co-ordinated with planning of the recommended Aboriginal Peoples' International University (see Volume 3, Chapter 5) and its electronic clearinghouse;
    • facilitate access to documentation and electronic exchange of research on residential schools;
    • provide financial assistance for the collection of testimony and continuing research;
    • work with educators in the design of Aboriginal curriculum that explains the history and effects of residential schools; and
    • conduct public education programs on the history and effects of residential schools and remedies applied to relieve their negative effects.[53]

32. One RCAP submission, The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada, made a number of recommendations to the RCAP.[54] In particular, the authors made nine recommendations, in what they saw as the best way to attempt to undo, as far as possible, the damage caused by the "systematic" removal of Aboriginal children from their families to residential schools. The first three recommendations were:
    • One: we recommend a special inquiry be commissioned to investigate all aspects of Indian Residential Schooling, with legislated powers to examine any relevant documents, hear testimony, Subpoena witnesses and lay charges.[55] ...
      
    • Two: we recommend comprehensive apologies and recognition of wrongs be offered by all the civil and ecclesiastical organisations that participated in Indian Residential Schooling. The apologies must provide the clear recognition that there can be no mitigation of their responsibility for what happened to, and no question of the nature of the abuses suffered by, Aboriginal Peoples, individually and collectively. The apologies must form part of a campaign to educate Canadian citizens at large of their role, however indirect, in these unconscionable acts. ...
    • Three: we recommend the establishment of a resource archive on Indian Residential Schooling, modelled upon the Fortunoff Video Archive for Holocaust Testimonies at Yale University. [56]

    Responses

33. In initiating the Restoring Dignity report, the government required the LCC to "closely consult" with national Aboriginal leadership about the inquiry.[57] However, the federal government has refused to take onboard the demands and recommendations for a public inquiry specifically into the residential schools. As far back as 1992, the federal government's view was that a public inquiry was not the preferred option. The then Minister for Aboriginal Affairs in replying to communication from the Aboriginal Rights Coalition stated, 'I am deeply disturbed by the recent disclosures of physical and sexual abuse in the residential schools. However, I do not believe that a public inquiry is the best approach at this time' (emphasis added).[58] The RCAP recommendation for a public inquiry has not altered the government's view.

34. The federal government has been more receptive to re-issuing an 'apology'. In an address by The Honourable Jan Stewart, Minister of Indian Affairs and Northern Development on the occasion of the unveiling of the federal government's response to the RCAP reports, Gathering Strength - Canada's Aboriginal Action Plan,[59] ("Gathering Strength Action Plan") on 7 January 1998 in Ottawa, the Federal government added the word "sorry" to the word "regret":

    The government of Canada today formally expresses to all Aboriginal people in Canada our profound regret for past actions of the federal government which have contributed to these difficult pages in the history of our relationship together.

    One aspect of our relationship with Aboriginal people over this period that requires particular attention is the Residential School system, this system separated many children from their families and communities and prevented them from speaking their own languages and from learning about their heritage and cultures. In the worst cases, it left legacies of personal pain and distress that continue to reverberate in Aboriginal communities to this day. Tragically, some children were the victims of physical and sexual abuse.

    The Government of Canada acknowledges the role it played in the development and administration of these schools. Particularly to those individuals who experienced the tragedy of sexual and physical abuse at residential schools, and who have carried this burden believing that in some way they must be responsible, we wish to emphasize that what you experienced was not your fault and should never have happened. To those of you who suffered this tragedy at residential schools, we are deeply sorry.

    In dealing with the legacies of the Residential School system, the Government of Canada proposes to work with First Nations, Inuit and Metis people, the Churches and other interested parties to resolve the longstanding issues that must be addressed. We need to work together on a healing strategy to assist individuals and communities in dealing with the consequences of this sad era of our history.[60]

35. To this effect, the Canadian government in its Gathering Strength Action Plan committed $350 million for a 'Healing Fund' designed to support communities in redressing 'the legacy of physical and sexual abuse at residential schools'. The 'apology' and 'Healing Fund' won support from some Aboriginal leaders but not others.[61]

36. On 14 November 1997, the federal Minister of Justice requested the LCC to prepare a 'report addressing processes for dealing with institutional child physical and sexual abuse.'[62] While the Commission's report, Restoring Dignity does not exclusively focus on residential school abuse, the Commission stated in a discussion paper that:

    ...for all the enormity of the dislocation and damage, over a period of generations, suffered by Aboriginal peoples in residential schools there has still been no comprehensive set of programs established by either governments or churches to redress the harm done. Some partial responses are now being made. Thirty years after the closure of most residential schools, the federal Minister of Indian Affairs issued a Statement of Reconciliation. Many Aboriginal people feel that the Statement did not, however, constitute a true apology.[63]

37. In responding to Restoring Dignity, the Canadian Government comments that it has 'adopted a four-part strategy to address the legacy of residential schools in keeping with the Commission's recommendations, including an apology by the government, a focus on healing, development of community-based dispute resolution models and resolution-focussed litigation strategies.'[64] The Canadian Government remarks that the first two mentioned strategies have already been implemented with the last two being put in train to 'deal with the growing volume of litigation being brought forward by Aboriginal people in a sensitive and timely manner'.[65] In September 2000, Prime Minister Chrétien appointed Deputy Prime Minister Herb Gray as the special representative to the churches to discuss church and government shared responsibility for residential schools cases in order 'to find a comprehensive long-term solution to the issue of church liability.' The Canadian government acknowledges that:

    '[a]ddressing the legacy of past institutional abuse in Indian residential schools is an extremely complex and sensitive issue. The volume of cases presents a challenge for everyone involved - including the victims. The government's first priority is to work with claimants and the churches to find lasting solutions that address the healing needs of victims of abuse.'[66]

    Discussion

38. The demands for reparations from the victims of residential schools or their representatives vary but the most common demands Aboriginal individuals, communities and organisations have made public or in discussions with the author are: public inquiry; apology from federal government and relevant churches; monetary compensation; and healing fund. These types of reparations, with the exception of the public inquiry, were generally supported by most lawyers, academics and public servants the author contacted. This section will discuss the first three mentioned reparation measures.[67]

    Public inquiry

39. Victims and other Aboriginal people and organisations the author consulted were unanimous in the need for a public inquiry into the residential schools experiment. Some wanted any inquiry to have Royal Commission status while others less concerned about this. As in March 2000, the Restoring Dignity report called for an exhaustive study into the residential school system.[68] However, all agreed that any public inquiry should be public and independent of government. The obvious questions to be asked are: Why a public inquiry? What is its purpose and would it achieve anything? Would it significantly add to the findings of the RCAP?

40. Aboriginal people indicated that, if nothing else, a public inquiry will bring out into the public domain the 'horrors' of the residential schools experiment and the role of the federal government and churches in the process. In Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine tragedy)[69] Cory J comments:

    One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover "the truth". Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented.[70]

41. For victims of gross human rights violations, establishing the truth about the past is a critically important measure of reparation.[71] Proponents for a public inquiry argue that the RCAP cannot be seen to serve this purpose. While the RCAP did investigate the residential schools experiment, it was only a part of an overall inquiry. What is needed, the proponents argue, is a specific inquiry into the residential schools, not unlike the Australian Human Rights and Equal Opportunity Commission National Inquiry Into The Separation of Aboriginal and Torres Strait Islander Children From Their Families National Inquiry.[72] As stated above, this sentiment has been echoed by the Restoring Dignity report despite its detailed investigation of abuse in residential schools. The Canadian government is yet to respond to this latest call for a specific inquiry.

42. The Australian National Inquiry has stimulated public debate on the removal of Australian Aboriginal children from their families. The federal and state governments have to varying degrees provided reparations.[73] However, many victims of the Australian experiment remain dissatisfied with their governments' responses. This raises questions about the purpose of public inquiries.

43. It is very important that the terms of reference of any inquiry are clearly framed and that expectations on the outcomes of the inquiry are not overly inflated. If the Canadian government instigates a public inquiry, it is imperative for the government to clearly communicate to the victims and their representatives whether the inquiry will be making recommendations to the government about reparations and what status those recommendations will have.

44. Generally, recommendations from public inquiries have no legally binding force. Of course, a government could legislate to accept and implement the recommendations of a public inquiry it has established. If the Canadian government were to so act, the confidence Aboriginal people would have in the public inquiry would increase which may lead to a more comprehensive fact finding result. However, it would be a 'brave' government that legislated to bind itself to the recommendations of a public inquiry into residential schools (especially before the recommendations have been formulated). To make such a plan more palatable to government, the government could be proscriptive in what the public inquiry can recommend. Although great care would need to taken to ensure that such limitations did not diminish the credibility of the inquiry and 'straightjacket' the inquiry into producing pre-determined findings and recommendations.

    Apology

45. Victims were very firm in their views that it is crucial that the federal government and relevant churches acknowledge the role they played in the residential schools experiment, the wrongs they committed and the enduring effects on Aboriginal people and their communities.[74] The victims want the federal government and churches to apologise for the wrongs and suffering caused.

46. Restoring Dignity notes common criticisms levelled at calls for apologies.[75]
    • First, an apology cannot rewrite history. This is rhetorically true but an apology can ensure that history is written accurately.
    • Secondly, it is impossible to apologise and compensate for every wrong committed in the past.[76] This argument misses the point which is that we are not considering a minor historical gaffe but rather, we are concerned with major human rights abuses that persisted for over a century.
    • Third, some suggest that we cannot apply a modern perspective to well-meaning if misguided policies of the past. It is essential to recall that we are not only dealing with misguided benevolence though this too requires apology. The systematic physical, sexual and psychological abuse suffered by Aboriginals was in no way acceptable under prevailing social norms.
    • Finally, some argue that an apology would be tantamount to an admission of legal liability. If a hearsay apology were admissible evidence for litigation purposes, it is suggested that it would bear little weight.

47. As previously noted, the federal Minister of Indian Affairs issued a 'Statement of Reconciliation' on 7 January 1998 whereby the words 'regret' and 'sorry' in respect to the residential schools experiment were used.[77] Also noted above, the statement has not satisfied some Aboriginals. Many of the Aboriginals the author consulted, were of the view that to truly be an apology, the 'Statement of Reconciliation' should be more specific and detail the governments' wrongs. It should have acknowledged and apologised for engaging in racial discrimination and genocidal practices. Some Aboriginals accepted that it may be extremely difficult for the government to acknowledge genocide and that it may result in an unhelpful technical and esoteric debate on what constitutes genocide. However the government at the minimum should acknowledge (and apologise) for being the dominant player in the residential schools experiment that had as its purpose the elimination of the Aboriginal culture.

48. The Australian National Inquiry recommended that all Australian parliaments, State and Territory police forces, and churches and other relevant non-government agencies, 'acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal' and apologise for the wrongs committed.[78] There is also a recommendation for a 'Sorry Day'.[79] Pritchard writes '[t]he Inquiry agreed that the first step in healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology.'[80]

49. Minow writes: '[b]y retelling the wrong and seeking acceptance, the apologiser assumes a position of vulnerability before not only the victims but also the larger community of literal or figurative witnesses.'[81] Minow adds: '[e]qually important is the adoption of a stance that grants power to the victims, power to accept, refuse, or ignore the apology.'[82]

50. It is emphasised that an apology is very significant. Restoring Dignity, specifies the following as necessary elements of a meaningful apology:
    • acknowledgement of the wrong done;
    • accepting responsibility for the wrong that was done;
    • the expression of sincere regret or remorse;
    • assurance that the wrong will not recur; and,
    • reparation through concrete measures.[83]

51. For reconciliation to progress, an apology acceptable to the victims of residential schools is necessary. An apology is necessary for the restoration of dignity for the victims and to aid their healing process.[84] Government and churches must make an apology that truly and comprehensively acknowledges the wrongs they committed and unequivocally accept that responsibility, express sincere sorrow, guarantee non-repetition of the wrong and offer acceptable reparations.

    Monetary compensation

52. Pritchard writes:

    The provision of monetary compensation is largely a symbolic act because the loss, grief and trauma experienced by victims of gross human rights violations can never be adequately compensated...Nonetheless, for many victims compensation is of major significance. From the victims' perspective, it has been suggested, monetary compensation "concretizes ...the confirmation of responsibility, wrongfulness, s/he is not guilty, and somebody cares about it." Thus, "[i]t's not the money but what the money signifies - vindication." ...Importantly, as well, for many victims, monetary support can make a practical difference, can make the lives of communities and individuals easier.[85]

    Pritchard's statement agrees with everything the victims of the residential schools experiment mentioned to this author. 'Yes the money will help me financially but it is only justice that I receive it. It shows that the government knows they were in the wrong and that I suffered.'[86]

53. Of course, one of the ways people seeks monetary compensations for a wrong committed against them is through the court based litigation process. As previously noted, the Canadian government as part of its four - stage response to the legacy of sexual and physical abuse in residential schools is seeking an out of court settlement process.[87] It is hope that this will be done via negotiations or some form of alternative dispute mechanism. This approach has much merit. However, if this approach is unsuccessful, the Canadian government may further consider the recommendation of the Australian National Inquiry for a 'National Compensation Fund'[88] with the fund being administered by a 'National Compensation Fund Board'[89] according to prescribed procedures.[90] It is recommended that a proscribed minimum lump sum from the 'National Compensation Fund'[91] be paid to those forcefully removed and, '[t]hat upon proof on the balance of probabilities any person suffering particular harm and/or loss resulting from forcible removal be entitled to monetary compensation from the National Compensation Fund assessed by reference to the general civil standards'.[92]

54. It is acknowledged that difficulties may arise in quantifying compensation for those that have suffered as a result of the residential schools experiment. However, they should not pose a barrier to the awarding of compensation. Perhaps the most common form of compensation that courts deal with is the assessment of damages for personal injuries caused by negligence, such as in the negligent driving of a motor vehicle. Many tort scholars have pointed out that this process is little more than, as Ison called it, a 'forensic lottery.'[93] Judges often make assessments of both economic and non-economic losses, at common law, on a lump sum 'once and for all' basis. 'This of necessity, involves speculation about a range of imponderables...'[94]

    Conclusion

55. The residential schools experiment in Canada has had a pervasive effect on the victims, their families and communities. The scars remain with current generations. The victims and their representatives, consistent with international law obligations, have made a number of reparation demands on the federal government. The Canadian Government has responded in some measure to the demands but many of those removed to residential schools demand more. This is especially so in respect to the demands for a public inquiry, apology and monetary compensation. The victims of the residential schools experiment argue that for justice to be done and for reconciliation between Aboriginal Canadians and non-Aboriginal Canadians to progress, their demands for reparations must be met. Others argue that the reparation demands must also be meet to preserve Canada's good international 'standing,' to reinforce the moral fabric and underlying values of contemporary Canadian society, and to 'preserve' or improve faith in government, especially among Aboriginal people.