View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Scholarship@Western Western University Scholarship@Western Aboriginal Policy Research Consortium International (APRCi) 3-18-2009 Canada and the Legacy of the Indian Residential Schools: transitional justice for indigenous people in a non-transitional society Courtney Jung Follow this and additional works at: https://ir.lib.uwo.ca/aprci Part of the Other Sociology Commons Citation of this paper: Jung, Courtney, "Canada and the Legacy of the Indian Residential Schools: transitional justice for indigenous people in a non- transitional society" (2009). Aboriginal Policy Research Consortium International (APRCi). 295. https://ir.lib.uwo.ca/aprci/295 Canada and the Legacy of the Indian Residential Schools: transitional justice for indigenous people in a non-transitional society Courtney Jung 1 March 18, 2009 The framework of transitional justice, originally devised to facilitate reconciliation in countries undergoing transitions from authoritarianism to democracy, is used with increasing frequency to respond to certain types of human rights violations against indigenous peoples. 2 In some cases, transitional justice measures are employed in societies not undergoing regime transition. Transitional justice measures offer opportunities for re-inscribing the responsibility of states toward their indigenous populations, empowering indigenous communities, responding to indigenous demands to be heard, and rewriting history. Nevertheless, treating indigenous demands for justice as a matter of “human rights” is an ethically loaded project that may reinforce liberal (and neo-liberal) paradigms that indigenous peoples often reject. Whether transitional justice measures will serve primarily to legitimate the status quo between post- colonial states, settler societies, and Aboriginal peoples, or whether they will have transformational capacity, will depend in part on the political context in which they take place. The impact of such transitional justice measures as apologies, truth commissions, and reparations will be limited, or extended, by the wider policy environment in which they occur. This paper outlines some of the potential complexities involved in processing indigenous demands for justice through a transitional justice framework. It identifies three broad areas in which the interests and goals of governments and indigenous peoples may clash, and where transitional justice itself may be the object of political wrangling. First, governments and indigenous peoples may differ over the scope of injustices that transitional justice measures can address. Second, governments may try to use transitional justice to draw a line through history and legitimate present policy, whereas indigenous peoples may try to use the past to critique present policy and conditions. Third, governments may try to use transitional justice to reassert their sovereign and legal authority, whereas indigenous peoples may try to resist this strategy, and even make competing claims to sovereignty and legal authority. Recent developments in the relationship between the Canadian government and First Nations highlight the challenges and opportunities of addressing indigenous demands for justice through the lens of transitional justice. In May 2006, the government, the Churches, and the Assembly of First Nations and other Aboriginal organizations reached agreement on a settlement to address the legacy of the Indian Residential School system 3. The agreement included reparations, a truth commission, and commemoration. In June 2008, Conservative Prime Minister Stephen Harper 1 The author would like to thank Paige Arthur, Gina Cosentino, Eduardo Gonzalez, and Patrick Macklem for helpful comments and insight on this paper. The analysis and conclusions are the sole responsibility of the author. 2 On the intellectual history of transitional justice, see Paige Arthur, “How ‘Transitions’ Re-shaped Human Rights: A Conceptual History of Transitional Justice” Full reference? 3 The Assembly of First Nations is an organization of First Nations chiefs that acts as the national political representative of First Nations governments and their citizens in Canada. The AFN is funded by the government, and has an office in Ottawa. The National Chief is elected by the Assembly of Chiefs, and plays a prominent role in responding to and shaping government initiatives that impact aboriginal people. 1 Electronic copy available at: http://ssrn.com/abstract=1374950 offered an official state apology to former students of Indian Residential Schools. Both the Harper government and First Nations leaders seem keen to employ transitional justice measures to deal with the legacy of the Residential School system. Nevertheless, they have different reasons for endorsing a transitional justice framework, and distinct perspectives on the work and goals of the apology, the Truth and Reconciliation Commission, and compensation. The scope of injustice Almost every dimension of indigenous life has been shaped, and limited, by the colonial encounter and by a post-colonial history of dispossession, racism, exclusion, betrayal, and forced assimilation. The indigenous experience is one of loss of land and sovereignty, the loss or devaluation of language and culture, loss of access to resources, and limited access to the socioeconomic and political rights of citizenship. The scope of the wrongs that have been committed against indigenous people is extensive. As a result, indigenous demands for justice are wide-ranging. But transitional justice measures are limited. In Canada, the apology, the TRC, and compensation are designed to address only the legacy of the residential schools system. Yet the residential school system is a narrow slice of the outstanding issues that bedevil the relationship between aboriginals, the Canadian government, and non-aboriginal Canadians. In the last fifteen years alone there have been two major government initiatives that proposed serious and wide ranging transformation of Canada-First Nations relations – the Royal Commission on Aboriginal Peoples and the Kelowna Accord. But both floundered, and the Conservative government entered office in January 2006 with little more than a controversial proposal to “extend human rights to First Nations” in a way that threatened to undermine aboriginal collective rights. The government has attempted to use “human rights” as a strategy for limiting state obligation, and as a wedge to undermine indigenous collective rights to self determination. Although the Conservative government did not initiate the transitional justice project that is now the centerpiece of its aboriginal policy, transitional justice extends the party’s human rights agenda, and is offered as an alternative to constitutional transformation and social justice. In 1991, the Government of Canada established the Royal Commission on Aboriginal Peoples ("RCAP") to investigate the social, economic and political conditions of the Aboriginal peoples of Canada, and to develop recommendations focused on the improvement of these conditions, and the overall relationship between First Nations and the Crown. The Commissioners directed their consultations to one over-riding, and extremely broad, question: What are the foundations of a fair and honorable relationship between the Aboriginal and non-Aboriginal people of Canada? The Commission held 178 days of public hearings, visited 96 communities, consulted dozens of experts, commissioned scores of research studies, and reviewed numerous past inquiries and reports. Their central conclusion was that the main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong. 4 The Royal Commission released its final report and recommendations in November, 1996. The report was five volumes long, including 4,000 pages and 440 recommendations. The first 4 Highlights from the report of the Royal Commission on Aboriginal Peoples, online at www.ainc- inac.gc.ca/ap/pubs/rpt/rpt-eng.asp 2 Electronic copy available at: http://ssrn.com/abstract=1374950 volume traces the history of the relationship between aboriginals and the state, details various failed policies, including the Indian Residential Schools policy, and proposes a new path forward. Volume two lays out the laws that presently govern First Nations, including treaty rights, existing financial arrangements for aboriginal governments, land provisions, and co- management agreements. Volume three recommends new directions in social policy in the areas of housing, education, language preservation, health, family and child welfare, arts and heritage, and museums. Volume four articulates the views of Aboriginals themselves. It includes sections on the perspectives of Elders, women, youth, Metis, and urban aboriginals. Volume five is titled “Renewal: A Twenty Year Commitment.” The two central planks of the commitment are redressing economic and welfare disparity, and constitutional reform. Fourteen months later, in January 1998, the government unveiled its response to the RCAP report: “Gathering Strength-Canada’s Aboriginal Action Plan.” The Action Plan had four components: renewing the partnership, strengthening aboriginal governance, developing a new fiscal relationship, and supporting strong communities, people, and economics. Nevertheless, in April 1999 the Human Rights Committee of the United Nations High Commissioner for Human Rights released its concluding observations