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Personal Recollections and Civic Responsibilities: Dispute Resolution and the Indian Residential Schools Legacy

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Personal Recollections and Civic Responsibilities: Dispute Resolution and the Indian Residential Schools Legacy Personal Recollections and Civic Responsibilities: Dispute Resolution and the Indian Residential Schools Legacy by Maegan Hough LL.B./B.C.L., McGill University, 2007 B.A. hons, York University, 2004 A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Laws in the Faculty of Law Maegan Hough, 2014 University of Victoria All rights reserved. This thesis may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee Personal Recollections and Civic Responsibilities: Dispute Resolution and the Indian Residential Schools Legacy by Maegan Hough LL.B./B.C.L., McGill University, 2007 B.A. hons, York University, 2004 Supervisory Committee Jeremy Webber, Faculty of Law Supervisor Matt James, Department of Political Science Co-Supervisor iii Abstract Supervisory Committee Jeremy Webber, Faculty of Law Supervisor Matt James, Department of Political Science Co-Supervisor The author attended Independent Assessment Process (IAP) hearings as part of the Indian Residential Schools Settlement Agreement. Her experience in IAP hearings raised questions about our approach, as Canadians, to historical wrongs, especially those, like loss of language and culture, which fall outside of the purview of criminal and tort- law. This thesis explores the legal, social, and political dispute resolution mechanisms available in Canada to address harms as they have been applied to the Indian Residential Schools Legacy. It finds that the approach to date has been limited by the assumptions inherent in those institutions. The author proposes that Canadians, as a society, need to reframe and restart our discussion about harms and reparations using a framework of “responsibility”, and provides some possible mechanisms to begin that discussion. iv Table of Contents Supervisory Committee ...................................................................................................... ii Abstract .............................................................................................................................. iii Table of Contents ............................................................................................................... iv Acknowledgments .............................................................................................................. vi Dedication ......................................................................................................................... vii Prologue .............................................................................................................................. 1 Chapter One: Being Canada ................................................................................................ 2 Day One .......................................................................................................................... 2 Empathy and Otherness .................................................................................................. 3 A Sense of Obligation ..................................................................................................... 6 Canada’s Representative ................................................................................................. 7 Challenging Process ........................................................................................................ 9 The Insider as Outsider ................................................................................................. 11 Justifying the Personal: Reflexive Auto-ethnography .................................................. 12 The Limits of Narrative ................................................................................................ 14 Expanding the Horizons ................................................................................................ 16 The Canadian Experience ............................................................................................. 18 The Ethics of Auto-ethnography ................................................................................... 22 Whose story is it anyway? ............................................................................................ 23 What Follows ................................................................................................................ 24 Chapter Two: History and Harms ..................................................................................... 27 Defining Harm .............................................................................................................. 27 The Intended Harms .................................................................................................. 27 The Unintended Harms ............................................................................................. 34 Categorizing Harms .................................................................................................. 41 Conclusion .................................................................................................................... 44 Chapter Three: Legal Theory and Responsibility ............................................................. 45 1. Institutional Reliance ................................................................................................ 46 a) Criminal Law ..................................................................................................... 47 b) Tort Law ............................................................................................................ 53 c) Civil Alternatives ............................................................................................... 59 d) Minding the Gaps .............................................................................................. 65 2. Drawing on the Transition ........................................................................................ 68 (a) A Canadian Application ...................................................................................... 69 (b) New(ish) Tools..................................................................................................... 70 (c) Transitional Barriers ........................................................................................... 80 3. Locating Responsibility ............................................................................................ 82 (a) Systemic Responsibility: There Will Be Days Like This ...................................... 83 (b) Responsibility for the Past: Just Another Bit Of History Repeating ................... 86 (c) Summary: This is Where it Ends ......................................................................... 91 Conclusion .................................................................................................................... 92 Chapter Four: Mechanisms of Responsibility ................................................................... 94 A Long List ................................................................................................................... 94 v i. Criminal Prosecutions ......................................................................................... 94 ii. Civil Litigation and Settlement .......................................................................... 96 iii. The Royal Commission on Aboriginal Peoples ............................................... 97 iv. The 1998 Statement of Reconciliation .............................................................. 99 v. The Aboriginal Healing Foundation ................................................................ 101 vi. The Pilot Projects ............................................................................................ 104 vii. The Alternative Dispute Resolution Program ................................................ 107 viii. The IRSSA: Funding for Healing ................................................................. 111 ix. The IRSSA: Funding for Commemoration ..................................................... 112 x. The IRSSA: The Common Experience Payment ............................................. 114 xi. The IRSSA: The Independent Assessment Process ........................................ 116 xii. The IRSSA: The Truth and Reconciliation Commission of Canada ............. 119 xiii. The 2008 Statement of Apology ................................................................... 122 Conclusion .................................................................................................................. 125 Chapter 5: Responsibility for Canada ............................................................................. 126 The Recent Past ........................................................................................................... 126 A Recapitulation ......................................................................................................... 127 (a) Restatement of Harms ........................................................................................... 130 (b) Restatement of Responsibilities ............................................................................ 132 (c) Responding Reflexively ........................................................................................ 134 Engaging Canadians .................................................................................................... 137 a) Apologies ...............................................................................................................
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