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Truth Commissions and Public Inquiries: Addressing Historical Injustices in Established Democracies

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TRUTH COMMISSIONS AND PUBLIC INQUIRIES: ADDRESSING HISTORICAL INJUSTICES IN ESTABLISHED DEMOCRACIES by Kim Pamela Stanton A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Kim Pamela Stanton 2010 Truth Commissions and Public Inquiries: Addressing Historical Injustices in Established Democracies Doctor of Juridical Science Kim Pamela Stanton Faculty of Law University of Toronto 2010 ABSTRACT In recent decades, the truth commission has become a mechanism used by states to address historical injustices. However, truth commissions are rarely used in established democracies, where the commission of inquiry model is favoured. I argue that established democracies may be more amenable to addressing historical injustices that continue to divide their populations if they see the truth commission mechanism not as a unique mechanism particular to the transitional justice setting, but as a specialized form of a familiar mechanism, the commission of inquiry. In this framework, truth commissions are distinguished from other commissions of inquiry by their symbolic acknowledgement of historical injustices, and their explicit “social function” to educate the public about those injustices in order to prevent their recurrence. Given that Canada has established a Truth and Reconciliation Commission (TRC) on the Indian Residential Schools legacy, I consider the TRC’s mandate, structure and ability to fulfill its social function, particularly the daunting challenge of engaging the non-indigenous public in its work. I also provide a legal history of a landmark Canadian public inquiry, the Mackenzie Valley Pipeline Inquiry, run by Tom Berger. As his Inquiry demonstrated, with visionary leadership and ii an effective process, a public inquiry can be a pedagogical tool that promotes social accountability for historical injustices. Conceiving of the truth commission as a form of public inquiry provides a way to consider the transitional justice literature on truth commissions internationally along with the experiences of domestic commissions of inquiry to assemble strategies that may assist the current TRC in its journey. iii ACKNOWLEDGEMENTS I am grateful to many people for their support, assistance and kindness throughout my doctoral work. I wish to thank the Social Sciences and Humanities Research Council of Canada, the Law Foundation of British Columbia, and the University of Toronto Faculty of Law for financially supporting my doctoral work. I also wish to thank the staff of the Bora Laskin Law Library at the University of Toronto, Special Collections at the University of British Columbia, and Library and Archives Canada in Ottawa for their kind assistance. Special thanks to Julia Hall, Graduate Programme Co-ordinator at the University of Toronto Faculty of Law, for her considerable efforts on my behalf. I have been extremely fortunate to have three professors of searing intellect and prodigious expertise on my committee. My sincere thanks to my co-supervisors, Mayo Moran and David Dyzenhaus, and to Kent Roach, for their insightful questions, critiques and advice that finetuned my argument and gave clarity to the project. Any value of this thesis is due in no small part to the intellectual rigour with which they approached my work. As well, I am grateful to Douglas Sanderson and to Allan Manson, my examiners, for their sincere engagement with my work. Thanks also to Douglas for inviting me to the Group on Indigenous Governance at the Centre for Ethics, where I gained confidence in my arguments. It was an honour and a privilege to interview Tom Berger for this project, and I thank him for so generously meeting with me and taking the time to read and comment on my draft fourth chapter. I am also deeply grateful to Diana Crosbie, Justice Stephen Goudge, and Ian Waddell for giving me their time and sharing their fond recollections of their remarkable work on the Berger Inquiry. Thanks to John Borrows for telling me about the connection between the Berger Inquiry and the Waitangi Tribunal, and to the Honourable Sir Edward Taihakurei Durie KNZM for his kind and thorough responses to my inquiries. They added a wonderful piece of little known history to the Berger Inquiry story. Massey College provided me with a home on campus, and I am very grateful for the sustenance, both intangible and tangible (in the form of a travel grant and much- appreciated meal bursaries) that it provided. John Fraser, Anna Luengo, Jorge Mendieta, David Landaverde, Jenny Mendieta and Greg Cerson, all meaningfully contributed to making this work possible. Through Massey College, I met extraordinary people like Maureen Brosnahan and Peter Russell, both of whom inspire me with their intellectual curiosity and dedication to public service. I am deeply indebted to the inimitable Lois Wilson for suggesting to me at the outset of this process that to have credibility as an international human rights lawyer, I would do well to address human rights violations in Canada. My chosen topic took shape after that conversation. I was also fortunate to have been mentored by Ursula Franklin throughout this process. Her keen insights, kindness, wisdom and “good and sisterly friendship” provided solace and strength at crucial times. While at the University of Toronto Faculty of Law, I have had an outstanding group of colleagues in the doctoral program. My office neighbours, Rayner Thwaites and Rommel Salvador, each offered cheerful encouragement and solidarity without which this would iv have been a much more solitary process. Special thanks to Rayner, and to Ummni Khan, both of whose wit, intellect and compassion saved the day more than once. The members of the Toronto Group for the Study of International, Transnational and Comparative Law, especially Amaya Alvez Marin, Irina Ceric, Michael Fakhri, Patricia Ferreira, Derek McKee, Claire Mumme, and Sujith Xavier, have been wonderful colleagues who helped me considerably by reading and commenting upon early draft chapters. My reading work group members, Dawnis Kennedy, Amar Bhatia and Shiri Pasternak, deserve my undying thanks for their astute, constructive critiques, their assistance with articulating my arguments and their extraordinary collegiality. They helped me to put the beating heart back in this work. Also, thanks to my fellow truth commission scholar, Alán Garcia Campos, for his thoughtful support and warm friendship from afar, and to Cailin Morrison for tea and good company closer to home. I shared many a superb meal with the other two members of the Baldwin Women’s Advisory Council, Kristen Rundle and Emily Hammond, while all three of us trod the doctoral path. Their friendship, delight in champagne, and laughter has buoyed my spirits and their integrity, intellect, and goodheartedness has been a guiding light. My thanks to Cauchy Richard for talking through my argument with me at a crucial point, and to my wonderful neighbours Vance Heath and Yves LeClair for their amazing knack of feeding me heavenly food on days when I was less than inspired to cook for myself. Thanks to Amy Nugent and Andrea Paras for their love, kindness, and sense of fun, and to Shannon Aldinger for late night phone calls that made long distances seem shorter somehow. Many thanks to Violet Allard and Rosalind Raddatz, for their fierce loyalty and true friendship through thick and thin; to Sandy Ibrahim for her faith in me; and to Vince Service for restoring my faith in others. My family – Nic, Dawn, Paul, Chris, Dan and Pamela – have been so patient and supportive I hardly know where to begin – meals, plane tickets, care packages and words of encouragement have all been given with generosity and received with gratitude and love. Thanks to my mum, Pamela (and to her friend Carolee Pollock) for reading drafts and providing valuable edits and advice. Any errors are, of course, mine alone. Finally, thank you to both my parents, Dan and Pamela, for their example of independence, courage, and selflessness in moving far from the home they knew to give my brother and I the opportunity for a better life. I had the enormous privilege to achieve this accomplishment as a result of your love, persistence and hard work. I admire you both with all my heart. v TABLE OF CONTENTS ABSTRACT....................................................................................................................................................ii ACKNOWLEDGEMENTS..........................................................................................................................iv TABLE OF CONTENTS..............................................................................................................................vi LIST OF APPENDICES ............................................................................................................................viii INTRODUCTION..........................................................................................................................................1 1. TRUTH COMMISSIONS IN ESTABLISHED DEMOCRACIES .......................................................9 Commissions of Inquiry..........................................................................................................................9 The Development of the Truth Commission .........................................................................................15 Truth Commissions and Public Inquiries .............................................................................................22
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