Kathleen Mahoney* THE SETTLEMENT PROCESS: A PERSONAL
REFLECTION
This paper discusses the author’s personal experiences as the chief negotiator of theIndian Residential Schools Settlement Agreement for the Assembly of First Nations.She discusses the key and central role the AFN played in the formulation of the Settle-ment Agreement, the values and principles that informed the Assembly’s positionsand strategies, and some of the behind-the-scene steps that led to its rapid adoption.She argues that reconciliation is a long-term project that will require more than re-parations and that Canada must take the major responsibility for creating condi-tions for reconciliation, which it is not presently doing. She argues that the legalprofession and the law must be more context sensitive and take Aboriginal laws andvalues into account or justice to the Aboriginal population will never be achieved.
The collection of articles in this issue of the University of Toronto Law Jour-nal is very important. It will contribute to understanding one of the mostimportant chapters of our nation’s history, one that will affect the coun-try for generations to come. During the past tumultuous decade of nego-tiation, consultation, lobbying, resolution, and appeals to achieve theIndian Residential Schools Settlement Agreement, it has been difficultto find the time to take stock, to re-evaluate, to record, and to appreciatehow far we have come on this historic journey. This collection providesthat opportunity, and for that I am very grateful.My role as the chief negotiator for the Assembly of First Nations
(AFN) was an experience for which no law school courses, years of teach-ing, or prior practice could have prepared me. Our search and our com-mitment to find the best way to come to grips with our country’s mostprofound human rights violations put us on a rollercoaster ride, oscillat-ing between elation and despair more times than I can remember. As Ire-read many of the research and position papers from those intensedays, revisiting the memories brought a tear to my eye: so much has hap-pened over the past nine years – so many lives have been changed for-ever, so much has been shared, so much has been written, and so muchhas become known that was unknown before.
* QC, FRSC Professor of Law, University of Calgary
To begin writing about this experience, I will take you back to theearly days of my involvement by describing how I got involved in the resi-dential schools matter in the first place – how it evolved, from my per-spective – and then provide my thoughts on the topic of reconciliation,which is the part of the Agreement yet to be realized.
II Early days
My involvement in the Indian Residential Schools matter began in 1997when I was invited to a meeting in Ottawa attended by Deputy Ministerof Justice George Thompson, National Chief of the AFN Phil Fontaine,several government officials, and AFN lawyer, Jack London. The purposeof the meeting was to discuss possible alternatives to litigation to resolvethe rapidly increasing numbers of claims being filed in the courts by sur-vivors of residential schools.1
Earlier that year, the Ministry of Indian Affairs and Northern Develop-ment had created a framework to respond to the residential school deba-cle. The Resolution Framework was intended to facilitate healing andreconciliation with the intent of bringing closure to the looming legal is-sues.2 This included a call to fund a program to preserve, revitalize, andprotect Aboriginal culture and languages and a commitment to addressthe full range of impacts of the Indian Residential Schools system.3 Thisfollowed an earlier initiative, Gathering Strength,4 which committed $350
1 In 1991, Phil Fontaine, Grand Chief in Manitoba at the time, was the first Aboriginalleader to make public statements in the national media about the abuse of children inIndian Residential Schools, citing his own experiences of abuse and calling for resolu-tion. See ‘Phil Fontaine’s Shocking Testimony of Sexual Abuse,’ CBC Digital Archives(30 October 1990), online: CBC Digital Archives <http://www.cbc.ca/archives/categories/politics/parties-leaders/phil-fontaine-native-diplomat-and-dealmaker/shocking-testimony-of-sexual-abuse.html>. Shortly after Fontaine’s testimony, the Royal Com-mission on Aboriginal Peoples published their report calling for a public inquiry intothe residential schools; see Royal Commission on Aboriginal Peoples, Report of the RoyalCommission on Aboriginal Peoples (Ottawa: Supply and Services, 1996), online: AboriginalAffairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca/eng/1307458586498/1307458751962>. See also Order Designating the Office of Indian Residen-tial Schools Resolution of Canada, SI/2001-74, online: Justice Laws Website <http://laws.justice.gc.ca/eng/regulations/SI-2001-74/page-1.html>.
2 Ministry of Indian Affairs and Northern Development, Resolution Framework (Ottawa:Minister of Public Works and Government Services Canada, 2003), formerly online:<http://www.irsr-rqpa.gc.ca/english/dispute_resolution_framework.html>.
3 The framework called for an additional ten-year, $172 million funding initiative.4 Jane Stewart, Notes for an Address by the Honourable Jane Stewart Minister of Indian Affairs
and Northern Development on the occasion of the unveiling of “Gathering Strength – Cana-da’s Aboriginal Action Plan” (Delivered in Ottawa, 7 January 1998), online: Aboriginal
million to support community-based healing initiatives for Aboriginalpeople who were affected by the abuse at residential schools.5 That sameyear, the Canadian government issued a Statement of Reconciliation toall victims, outlining its regret for the treatment endured by Aboriginalpeoples. The apology states, ‘As a country we are burdened by pastactions that resulted in weakening the identity of Aboriginal peoples,suppressing their languages and cultures, and outlawing spiritual prac-tices.’6 There was no indication in any of these initiatives that the gov-ernment accepted legal responsibility for doing anything wrong inestablishing the residential schools system in the first place. Rather, theywere framed more as initiatives to provide social programming.The national chief made it clear to the government that, while these
were steps in the right direction, to succeed in creating conditions forreconciliation any alternative plan to move residential school claimantsout of the courts would have to be based on wide consultation with FirstNation communities, elders, survivors, and church representatives.7 Healso insisted that there had to be acknowledgement by the governmentthat the policy of residential schools and the deliberate attempt todestroy Aboriginal identity, culture, and family life was racist and legallywrong and that significant individual and collective compensation andan apology in the House of Commons would have to be part of the pack-age.8 The AFN and the government then initiated a process of consulta-tive dialogues in 1998 that travelled across Canada for a year. I attendedsome of these sessions with survivors, government representatives,church representatives, and a variety of experts, lawyers, academics, andadvisors. The sessions were very emotional, as many were hearing andspeaking about the horrors of the residential school experience for thefirst time. The consultation dialogues concluded in 1999, with all theparties agreeing to a comprehensive set of seventeen guiding principlesthat would inform an alternative dispute resolution process for residen-tial school claims.9
Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca/eng/1100100015725/1100100015726>.
5 Ibid. Gathering Strength was an attempt by the government to address the Royal Com-mission on Aboriginal Peoples, which had filed its report a year earlier in 1996.
6 Ibid.7 See Phil Fontaine, ‘National Chief’s Message,’ AFN Echo 1:3 (November/December
2004) 2, online: <http://64.26.129.156/cmslib/general/EchoVol1No3.pdf>.8 ‘Canada Agrees to Reparations for All Residential School Students,’ Cultural Survival
(17 June 2005), online: Cultural Survival <http://www.culturalsurvival.org/news/canada-agrees-reparations-all-residential-school-students>.
9 Reconciliation and Healing: Alternative Resolution Strategies for Dealing with ResidentialSchool Claims (Ottawa: Department of Indian Affairs and Northern Development,
The parties agreed that an alternative dispute resolution approach toreplace court actions would, among other things, have to
• Be inclusive, fair, accessible and transparent;
• Offer a holistic and comprehensive response recognizing and addressing allthe harms committed in and resulting from residential schools;
• Respect human dignity and equality and racial and gender equality;
• Contribute towards reconciliation and healing; and
• Do no harm to survivors and their families.10
It was after this point that a new set of problems arose. Instead of con-tinuing to involve the AFN and the survivors in the process, the govern-ment proceeded to design the alternative dispute resolution process(ADR)11 entirely on its own. The centrepiece of the Resolution Frameworknow became the ADR process, ostensibly based on the guiding princi-ples. Twelve pilot projects were used to test the ADR process and then,in November 2003, the ADR process itself was launched. I was dismayedthat the AFN and survivor groups were shut out of the design of the ADRprocess. Government and the churches working together with the AFNuntil that point had achieved significant progress and many, includingme, were very optimistic that, even if we were shut out of the final draft-ing stage, a fair and just resolution might be in sight. I could not havebeen more wrong.My personal encounter with the ADR process began in the fall of
2003, right around the time of its launch. I was sitting in my office pre-paring for my law class at the University of Calgary, Faculty of Law, whenthe telephone rang. I was surprised to learn that the caller was a govern-ment official from Ottawa. He told me his name was Shawn Tupper. Hewas calling to tell me that he had someone in his office who had a com-plaint against Canada for his residential school experience and that hehad named me as the lawyer he wanted to represent him in pursuinghis claim. I was told that this individual had come all the way to Ottawaby bus from his First Nation community in Manitoba because of his
10 Ibid at 107 to 115.11 Ralph Goodale, Indian Residential Schools Resolution Canada Performance Report for
the period ending March 31, 2003 (2003) [Goodale Report], online: Treasury Board ofCanada Secretariat <http://www.tbs-sct.gc.ca/rma/dpr/02-03/irsrc-rqpic/irsrc-rqpic03d_e.asp>.
frustration with the ADR compensation process. I was surprised and flat-tered, first, that someone wanted me, a non-practising, academic lawyerto represent him, and second, that he would become so frustrated anddissatisfied with the compensation process he would travel over 1 500kilometres by bus to take up his case directly with the Government ofCanada. In spite of my initial reluctance to take on the challenge of anindividual claim, I was so impressed with the deep determination of thisman and so concerned that the compensation process we had such highhopes for was not working that, by the end of the conversation, I agreedto take on his case.My client was the late Dennis Fontaine from the Skageeng First Nation
in Manitoba, the brother of the national chief. In taking up Mr Fon-taine’s case, it was necessary for me to carefully study the process thathad led him to Ottawa. I learned that he was a participant in one of thepilot projects that were launched in Manitoba to ‘test run’ the ADR pro-cess. After examining the elements of the pilot, I was most disappointedto discover that the guiding principles derived from the national dialo-gues had been largely ignored in the implementation of the pilot pro-jects as well as in the creation of the ADR process. Survivors, includingDennis Fontaine, felt they were being re-victimized and betrayed.12
Excluding the AFN and survivors from participating in the design ofthe ADR process demonstrated a fundamental misunderstanding of thecentral element of reconciliation, that being the inclusion of the tar-geted group and its perspectives into the resolution process. A relatedflaw was the government’s retreat from a reconciliatory, restorative jus-tice model towards a British-common-law torts model that was not onlyrigid and unresponsive to the notion of reconciliation but inherentlybiased against Aboriginal experience and perspectives.From a European-derived torts perspective, the only legal issues that
needed to be resolved were the individual cases of physical and sexualabuse and unlawful confinement carried out by employees of the gov-ernment and churches. The more general issue of the morality andlegality of the residential schools system per se and the collective harms –for example, reduced self-esteem; isolation from family; spiritual harm;and loss of language, culture, a reasonable quality of education, kinship,community, and traditional ways – through the exercise of governmentpolicy13 were not seen as legal wrongs appropriate for consideration in
12 See Paul Barnsley, ‘ADR Process Launched,’ Windspeaker 21:9 (2003) 11, online:AMMSA <http://www.ammsa.com/publications/windspeaker/adr-process-launched>.
13 Rosalyn Ing, Dealing with Shame and Unresolved Trauma: Residential School and Its Impacton the 2nd and 3rd Generation Adults (PhD Thesis, Department of Educational Studies,University of British Columbia, 2000) [unpublished].
the ADR model.14 Secondary harms to parents, grandparents, spouses,and descendants were completely ignored.It became obvious that the government’s preoccupation with resolving
individual tort claims15 and the several class action suits that had beenfiled against it16 was primarily a self-interested response to the buildingpressure on the courts. Without an alternative method of resolving dis-putes, it was estimated that the caseload would take another 53 years toconclude at a cost of $2.3 billion in 2002 dollars, not including the valueof the actual settlement costs.17
The limited goals of the ADR resulted in serious inadequacies.18 Thenarrow range of compensation coverage, the unequal treatment of survi-vors, the lack of healing or truth telling components as well as the overallde-contextualized approach failed to come to grips with what survivorshad clearly indicated they wanted from the process. This was especiallytrue with respect to the loss of language, culture, and family life thatmost if not all survivors experienced. In its 2003 performance report,even the government department created for the resolution of residen-tial school claims raised red flags warning that the ADR process riskedre-victimizing claimants.19 Nonetheless, government officials proceededto create a compensation plan that was discriminatory, unequal, andunfair.The ADR compensation plan for recognized abuses treated survivors
unequally even in the formal equality sense. It discriminated against sur-vivors on the basis of geographic location, religion, sex, and Canada’srelationship with the church defendants. For example, some survivorswere compensated for 100 per cent of their proven claims, while others
14 See James Rodger Miller, Shingwauk’s Vision: A History of Native Residential Schools(Toronto: University of Toronto Press, 1996); JR Miller, ‘Troubled Legacy: A Historyof Native Residential Schools’ (2003) 66 Sask L Rev 357; Basil Quewezance & JoeNolan, Indian Residential Schools: A Background Report [unpublished, Assembly of FirstNations, 2004]; Jennifer Koshan, ‘Does the DR Model Violate the Charter?’ in Kath-leen Mahoney, ed, The Residential School Legacy: Is Reconciliation Possible? [unpublished,on file with the author] [Mahoney, Reconciliation]; Greg Hagen, ‘The DR Model: FairTreatment or Re-Victimization?’ in ibid.
15 Goodale Report, supra note 11. The Treasury Board Secretariat estimated that therewould be approximately 18 000 claims, 14 000 of which would be proven valid.
16 Baxter/Cloud was an Ontario class action claiming loss of Indian language and culturein Indian Residential Schools for $76 billion. As of 1 May 2004, seventeen judgmentshad been issued; see Cloud v Canada (Attorney General) (2004), 73 OR (3d) 401; Baxterv Canada (Attorney General) (2006), 80 OR (3d) 481.
17 Goodale Report, supra note 11.18 Guide for the Alternative Dispute Resolution Process [nd], [Guide for ADR] online: Indian
Residential Schools Canada <http://web.archive.org/web/200406151907>.19 Goodale Report, supra note 11.
would receive only 75 per cent of the value of their proven claims. Thisdiscrepancy was justified by Canada based on whether or not they couldbe indemnified by the defendant churches. If there was an indemnityagreement with a church organization to repay Canada 25 per cent ofthe compensation paid to the survivor,20 the survivor received 100 percent of the compensation owed. If there was no indemnity agreement,the survivor was paid only 75 per cent of what was owed.21
In addition to the indemnity differential, there was also unequal com-pensation for the same abuse, depending on where the claimant went toschool. Different grids applied in different provinces for the same abuse.If the abuse took place in BC, the Yukon, or Ontario, survivors couldreceive up to $50 000 more for the same injuries than survivors who livein the other provinces of Canada.22 This was explained on the basis thatthe jurisprudence for abuse damages in BC, the Yukon, and Ontario wasdeveloped, but in other provinces it was not. This system of paying differ-ent amounts for the same injuries flew in the face of reconciliation andequality and was contrary to well-established case law. The SupremeCourt of Canada had made it clear, since 1978, that arbitrary distinctionsin damage awards based upon province alone are unfair.23
Sex discrimination was another issue. The ADR compensated femaleclaimants as long as they were harmed in the same way as the male clai-mants. Sex-specific harms only applicable to women, such as pregnancy,forced adoption, or abortions caused by sexual abuse, were not eligiblefor compensation.Physical abuse claims were limited by racially biased, temporal restric-
tions or ‘standards of the day’ limitations. Whether an act was classifiedas physical abuse depended upon when it was committed. For example,punishment by a blow to a student’s head by a staff member, or a kick inthe pants, or even a thrashing to the bare buttocks inflicted prior to1970 was not considered to be physical abuse.24 This limitation in theADR seemed particularly egregious and insensitive. Today, blows to the
20 See Blackwater v Plint, [2005] 3 SCR 3, where the Supreme Court of Canada held that,as between Canada and the churches, Canada was 75% vicariously liable for the harmscaused at the residential schools and the churches 25%.
21 See Ken R Halvorson, Indian Residential School Abuse Claims: A Lawyer’s Guide to the Ad-judicative Process (Toronto: Carswell, 2005).
22 Ibid.23 Andrews v Grand & Toy Alberta Ltd, [1978] 2 SCR 229; Dickson CJ held ‘[v]ariation
should be made for what a particular individual has lost in the way of amenities andenjoyment of life, and for what will function to make up for his loss, but variationshould not be made merely for the Province in which he happens to live’; ibid at para93.
head and similar assaults routinely committed in residential schools areconsidered to be unreasonable even by criminal standards25 and by elim-inating physical assaults of this nature committed prior to 1970, the gov-ernment appeared to be harsh and extremely technical in its approach.The Supreme Court of Canada’s holding that ‘[c]orporal punishmentusing objects, such as rulers or belts, is physically and emotionally harm-ful. Corporal punishment that involves slaps or blows to the head isharmful. These types of punishment, we may conclude, will not be rea-sonable,’26 added considerable strength to the argument that the ADRprocess was overly harsh and counterproductive to reconciliation. If theADR model had considered the Aboriginal point of view, it would behighly unlikely that the temporal limits on compensation for pre-1970blows to the head and other forms of physical punishment would havefound its way into the ADR. The question of whose standards was evi-dently not asked because it would have informed the creators of theADR that Aboriginal methods of disciplining children did not includephysical violence before or after 1970.Another limiting device in the ADR’s compensation plan was its very
narrow interpretation of vicarious liability. An example of this was itsprovision for student-on-student abuse. This common form of abuse inunderstaffed residential schools was not compensable under the ADRunless persons in positions of authority had actual knowledge of theoccurrence of the abuse as opposed to constructive knowledge. Giventhe secretive nature of many forms of sexual abuse and bullying, the chil-dren’s fears of reporting as well as chronic understaffing in the schools,this provision in the ADR ensured that very few if any survivors who wereabused by other students would be able to prove a claim.27
Other shortcomings were the lack of provision for interim awards forthe elderly, the overly long and complicated application process, andthe failure to provide for the healing needs of the survivors and their fa-milies through provision for healing, a truth commission, or compensa-tion for loss of language and culture and loss of family life. Neither wasthere any provision for the need for an apology or commemoration torecognize the victimization of generations of victims who had passed.In addition to all of these problems, the government seriously under-estimated the number of living victims of abuse. They created the ADRinfrastructure to resolve approximately 18 000 individual claims for
25 Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), [2004]1 SCR 76.
abuse and wrongful confinement, when the real number was nearly dou-ble that amount.28
III The journey towards a more reconciliatory settlement
After going through the ADR provisions identifying the problems withit, some of them described above, it was obvious to me that my clientand the rest of the residential school survivors were indeed being re-victimized by the ADR plan. I communicated this to the National Chiefand the Executive of the AFN. They then retained me to act on theirbehalf to identify the issues and to convey them to the appropriate offi-cials. I attended, with others, a meeting that was arranged with officialsin Indian Residential Schools Resolutions Canada, where the concernswere discussed. Following the meeting, I composed a long letter to theMario Dion (the cabinet minister who was in charge of the ADR pro-cess) under the signature of the national chief, suggesting how the pro-blems could be corrected to comply with the guiding principles and thedesired goal of reconciliation.29 I included in the letter a paragraphsomewhat sarcastically pointing out that the practice of ‘roundingdown’ points for aggravated harms when the percentage calculation re-sulted in a fraction should be corrected to rounding up – for symbolicreasons, if nothing else.30 The next thing that happened was that I re-ceived a call from Mr. Dion’s office asking to set a time for a conferencecall to discuss my letter. I was very excited at the prospect because I hadthe naïve thought that perhaps my suggestions would have an effectand that changes to the ADR might be forthcoming. The day came forthe call with several government officials. I carefully guided themthrough all of my points in the letter, explaining the rationale for them.At the end of a very long call, my government colleagues thanked mefor my efforts but then later informed me that there would be nochanges in the ADR except for the fact that from now on they wouldround up points on aggravated harms to the nearest whole number.The net effect was at the most a one per cent increase in the amountcalculated for the harms suffered by the victims of abuse. So for all my
28 The AFN estimated that the number of abuse victims would be at least 25 000 and ar-gued for this to be the basis for the infrastructure plan. Today, the admitted claims inthe individual compensation process are in excess of 32 000.
29 See Letter to Deputy Minister Mario Dion (3 October 2003) signed by National ChiefPhil Fontaine, in the author’s files, the first of a series of letters, online: <http://www3.telus.net/kmahoney/Documents/files/ADR%20critique-%20Mario%20Dion.pdf>
efforts, I succeeded in gaining not much more than loose change!Needless to say, I was very disappointed and disillusioned that thegovernment could act so contrary to its stated intentions to achievereconciliation. I asked myself, what now? The ADR seemed to be non-negotiable and there were no reasonable alternatives for the peoplelike my client, Dennis Fontaine. It was either take the ADR or go to thecourts. As the court option would be almost certainly be unsuccessful,31
it seemed to me that exposing the ADR to the public and the educationand pressure that could result would likely be the only alternative toachieve a better solution. I was convinced, as were many others, thatthere would not be another opportunity to resolve the residentialschool violations and that if it were done badly it would be worse thandoing nothing at all. So then I asked myself, ‘What do academics dowhen they are up against a brick wall of resistance and there appears tobe no other solution but education?’ The answer was obvious . . . orga-nize a conference!The AFN agreed to partner with the law faculty at the University of
Calgary to hold a conference to examine the ADR plan. Funding was ob-tained from several sources so that experts from across the country andinternationally could attend along with AFN officials, government andchurch officials, survivors, Aboriginal leaders, elders, politicians, journal-ists, medical and psychiatric experts, historians, Native studies experts,lawyers, judges, and academics in a wide array of relevant disciplines.The conference, which took place in March 2004, was framed aroundone simple question: ‘Will the Government’s ADR solution achieve rec-onciliation?32
In paper after paper, speech after speech, the conference participantsexamining the ADR from different perspectives, answered the questionwith a resounding ‘No.’33 Even the government and church officials inattendance agreed that the ADR process would not achieve reconcilia-tion, as it was re-victimizing survivors in many different ways and causingthem even more harm.From this watershed event, the AFN, under the leadership of Na-
tional Chief Fontaine, moved back into a key and central role inthe process. Before the conference ended, the national chief and
31 Justice Schulman discusses the extreme difficulties Aboriginal claimants for IRSabuses face when they try to take their cases before the courts; see Semple v Canada(Attorney General), 2006 MBQB 285.
32 ‘Residential Schools Legacy: Is Reconciliation Possible?’ In the News (8 March 2004),online: University of Calgary <http://www.ucalgary.ca/mp2003/news/march04/residential-schools.html>.
Mr. Dion agreed that the AFN would take the lead in devising amore equitable and restorative plan for the resolution of IndianResidential School claims. The national chief secured a promise ofsignificant funding to enable a complete rethink of the entire ADRprocess.I was then asked by the AFN to form an ‘expert group’ to devise a
new, holistic plan that would be more conducive to reconciliation, heal-ing, truth telling, and fairness. The expert group was comprised of survi-vors, elders, national and international academics, lawyers, researchstudents, and judges.34 We conducted research, wrote briefs, and heldworkshops and study sessions for a three-month period in the summer of2004 and then, with the results of the deliberations, I wrote the AFNreport which was made public in November 2004.35
The report’s recommendations laid out a blueprint for a settlementagreement that included a lump sum payment for every former residen-tial school student for loss of language and culture and loss of family life;improved, equal, context sensitive, and inclusive compensation for indi-vidual abuse; provision for negotiated settlements, wider vicarious liabil-ity requirements, context-trained adjudicators, a truth commission, andhealing and commemoration reparations for survivors and their families,among many other suggestions.36
After publication of the report, the AFN started bilateral discussionswith Canada with respect to reformulating the ADR and adding com-ponents to address collective remedies as well as individual ones. A smal-ler team37 met almost everyday for six months until a formal political
34 The members of the team and their biographies are listed in Assembly of FirstNations, Report on Canada’s Dispute Resolution Plan to Compensate for Abuse in Indian Resi-dential Schools (Ottawa: Assembly of First Nations, 2004), Appendix A at 28, online:<http://epub.sub.uni-hamburg.de/epub/volltexte/2009/2889/pdf/Indian_Residential_Schools_Report.pdf>
35 Ibid.36 The Canadian Bar Association as well as class-actions lawyers endorsed the AFN
Report. See e.g. Canadian Bar Association, The Logical Next Step: Reconciliation Paymentsfor All Indian Residential School Survivors (February 2005) [CBA], online: <http://www.cba.org/CBA/Sections/pdf/residential.pdf>. See also Assembly of First Nations,‘Assembly of First Nations Chief Signs Historic Political Accord to Resolve the Legacyof Residential Schools,’ News Release (30 May 2005); National Consortium of Residen-tial School Survivors’ Counsel, New Release, ‘National Consortium Negotiations withthe Honourable Mr Justice Iacobucci Will Be Focused on Reaching a Viable Settle-ment of All Residential School Claims’ (18 July 2005).
37 The team was comprised of the National Chief, Elder Fred Kelly, Ken Young,John Phillips, Sheilah Martin, Charlene Belleau, Aaron Renert, Bob Watts, andmyself. It was noteworthy that ours was the only negotiating team that had survivors aspart of the team. Four members were survivors, and one was an intergenerational sur-vivor.
agreement was reached.38 The political agreement,39 among otherthings, agreed to a new compensation plan which would include all ofthe major elements of the AFN Report; namely, an improved system ofreparations for abuse, a common-experience payment for each residentof a residential school (CEP), healing funds, health support, a truth com-mission, a fund for commemoration, a fund for legal fees, an early pay-ment for the elderly, an apology, and the appointment of Justice FrankIacobucci to bring all of the parties together to formulate the entire set-tlement agreement.40 It also guaranteed that the AFN would play a ‘keyand central role’ in the ultimate resolution of the settlement.41
The signatories to the political agreement on 30 May 2005, were Dep-uty Prime Minister Anne McClellan, Minister of Justice Irwin Cotler,Minister of Indian Affairs Andy Scott, and National Chief Phil Fon-taine.42 In addition to the promise of a new reconciliatory and restor-ative approach to reparations, the agreement formally acknowledgedCanada’s liability for the first time. As we were subsequently told by someof the class action lawyers still fighting in the trenches, we had ‘movedthe mountain.’ The national chief said it was a moment for the ages.43
After the political agreement was signed, the national chief organizeda special event to consecrate the final negotiations to ensure they wouldbe grounded in Native tradition. The Hon Frank Iacobucci, with othergovernment officials and members of the AFN negotiating team, at-tended a special ceremony in the traditional round house on Pow WowIsland performed by elder Fred Kelly. Following this event, the formalnegotiations proceeded very quickly with the larger group of approxi-mately eighty lawyers. In a short period of six months, the Agreement in
38 Indian and Northern Affairs Canada, News Release, ‘Government of Canada An-nounces Landmark Agreement towards a Lasting Resolution of the Legacy of IndianResidential Schools and Appoints Representative to Lead Discussions’ (30 May 2005),online: <http://bishop-accountability.org/abuse2005archives/011545.html>.
39 See ‘Canada Agrees to Reparations for All Residential School Students’ (17 June2005), online: Cultural Survival <http://www.culturalsurvival.org/news/canada-agrees-reparations-all-residential-school-students>.
40 See Anne McLellan, Indian Residential Schools Resolution Canada, 2004–2005: Departmen-tal Performance Report [nd] online: <http://www.nrsss.ca/Resource_Centre/IndianAffairs/IRSRC_DPR_2004-2005_FINAL_wm.pdf>.
41 For the AFN understanding of the political accord, see e.g. Paul Barnsley, ‘AFNLaunches Class Action Lawsuit,’ Windspeaker 23:6 (2005) 8, online: AMMSA <http://www.ammsa.com/publications/windspeaker/afn-launches-class-action-lawsuit>.
42 Assembly of First Nations, News Release, ‘Assembly of First Nations National ChiefSigns Historic Political Accord to Resolve the Legacy of Residential Schools’ (30 May2005), formerly online: <http://www.afn.ca/article.asp?id=1185>.
43 Bill Curry, ‘Ottawa Shift Buoys Natives: Former Residential School Students CouldShare Receive up to $6-billion,’ The Globe and Mail (31 May 2005), online, Globeand-Mail.com: <http://www.marshall-attorneys.com/Press/2005_05_31_GM.htm>.
Principle which collapsed all of the class actions and individual actionsthat had been started as well as all future actions into the SettlementAgreement was signed in November 2005.44
IV The Truth and Reconciliation Commission
The National Chief and the AFN negotiating team were always of theview that the Truth and Reconciliation Commission (TRC) would be thelasting legacy of the Settlement Agreement and its most important fea-ture. We operated from the premise that, once a TRC has done its workand a history is known, it can never be unknown. Michael Ignatieff, inhis speech at the AFN/University of Calgary conference addressing theimportance of truth commissions, struck a chord when he said that atruth commission, at the very least, ‘limits the range of permissiblelies.’45 Survivors, well aware that prejudices, racism, cultural and identitygenocide, and abuse can return at any time, insisted from the beginningthat the Settlement Agreement had to provide an opportunity for themto tell their stories. For these reasons, we felt that, if nothing else wasaccomplished by the Settlement Agreement, the TRC would be a perma-nent achievement.The TRC, however, was designed to achieve broader goals – to be part
of an overall holistic and comprehensive response to the Indian Residen-tial School legacy, to provide a mechanism whereby the injustices andharms experienced by Aboriginal people and the need for continuedhealing would be acknowledged.46 There is an explicit recognition inthe mandate that says, ‘[T]he truth of our common experiences willhelp set our spirits free and pave the way to reconciliation.’47
We negotiated the mandate and terms for the TRC and the othercollective remedies in the period between the political Agreementand the Final Agreement. What was interesting about this phase ofthe negotiations was that only the AFN team participated from theclaimant’s side. All the other claimants’ lawyers avoided negotiations
44 Agreement in Principle (20 November 2005), online: <http://www.residentialschoolsettlement.ca/aip.pdf>.
45 Michael Ignatieff, ‘Limiting the Range of Permissible Lies: The Importance of theRecord’ (Keynote address to the Calgary Conference, infra note 58).
46 Truth and Reconciliation Commission of Canada, ‘Our Mandate’ (20 November2005), online: Truth and Reconciliation Commission of Canada <http://www.trc-cvr.ca/overview.html>; also Indian Residential Schools Settlement Agreement (May 2006),Schedule N [IRSSA], online: <http://www.residentialschoolsettlement.ca/settlement.html>.
for commemoration, education, healing funds, and a truth and reconcil-iation commission, perhaps indicating their lack of comfort with non-traditional, restorative remedies. Their sole focus on the resolution ofindividual claims was disappointing because their attitude mirrored thatof the government and some church representatives insofar as therestorative elements of the Settlement Agreement, so important to survi-vors, were concerned. Healing and community-building remedies areantithetical to the adversarial, torts-based system that lawyers are used toas products of the Anglo-American legal system. Canadian lawyers aretrained to resolve disputes according to a set of ‘common’ rules and va-lues that are not necessarily values common to their Aboriginal clients.Jennifer Llewellyn, a member of the expert group, explains that determi-nations with respect to guilt, culpability, or liability strip away the com-plexity of the broader truth of the injuries and impose judgments aboutwhat aspect of those injuries matter to resolve a conflict or controversy.48
As most lawyers are not familiar with Aboriginal justice values, it is notsurprising that the claimant’s lawyers would shy away from what theywould see as non-legal work requiring them to be culturally sensitiveand aware of the deep, collective harms caused by the torts and crimesof the defendants. Unfortunately, this lack of cultural sensitivity andawareness can re-victimize the claimants they are retained to help.49
Trevor Farrow argues that this approach is not only problematic forthe survivors of Indian Residential Schools, it is problematic for the legalprofession’s legitimacy. He says the principles by which the legal profes-sion operates need to be re-orientated to the changing needs of ourincreasingly diverse and pluralistic society. He further compellingly ar-gues that, if the legal profession is to be sustainable, a less adversarial andmore inclusive notion of professionalism must be developed. He says thatnot only would this be the right thing to do, it would also be consistentwith the promise made by the profession to protect the public interest inreturn for the fundamental privilege of delivering legal services.50
In negotiating the mandate of the TRC, the AFN’s position was thatthe Truth Commission’s mandate had to be built upon the Statement ofReconciliation51 and the principles developed by the Working Group on
48 Jennifer Llewellyn, ‘Bridging the Gap between Truth and Reconciliation: RestorativeJustice and the Indian Residential Schools Truth and Reconciliation Commission’ inMarlene Brant Castellano, Linda Archibald, & Mike DeGagné, eds, From Truth to Rec-onciliation: Transforming the Legacy of Residential Schools (Ottawa: Aboriginal HealingFoundation, 2008) 1 at 191.
49 Trevor CW Farrow, ‘Residential Schools Litigation and the Legal Profession’ (2014)64:4 UTLJ [present issue] [Farrow].
Truth and Reconciliation and of the Exploratory Dialogues.52 It wasunderstood that reconciliation is an ongoing individual and collectiveprocess and requires commitment from all those affected.53 The eldersand survivors we consulted were adamant that the TRC be a co-operativeventure amongst all the parties, not an adversarial one. There was nodesire for retribution or punishment within the Truth Commission pro-cess. At the same time, however, there was no call for amnesty provisions.Although some criticized the TRC design for its omission of subpoena
powers, the AFN team was of the view that giving the TRC subpoenapowers would be counter-productive and counter to the wishes of the el-ders and survivors. We had learned that the Irish Truth Commission’sexperience in trying to investigate industrial schools using subpoenapowers so paralysed the process with litigation that the commission was dis-banded. We believed that the Catholic church would likely put up thesame resistance to the TRC as it did in Ireland were the TRC to be giventhe same powers.54 In any event, securing confessions or obtaining evi-dence from perpetrators of abuse in the Canadian schools was largelyimpossible because the vast majority were deceased. For those remaining,if survivors wish to prosecute them criminally, the possibility of evidencegathering exists under the Criminal Code. In addition, the governmentand the churches committed themselves to take part in the truth-tellingprocess and to provide access to all relevant documents and other infor-mation, subject to privacy legislation.55 The AFN wanted to avoid the trapof serial litigation while creating a vehicle that would enable the survivorsto tell their stories in a respectful and appropriate setting and ensure thepreservation of the Indian Residential School history in the most completeand accurate way possible.
V The reconciliation challenge
Notwithstanding the progress the Settlement Agreement represents, theanswer to the question asked at the 2004 conference about achievingreconciliation remains elusive.
52 Ibid; supra, note 9.53 Ibid; supra, note 46.54 Kathleen Mahoney, ‘The Irish Report on the Resolution of the Industrial School
Abuses’ [unpublished, on file with the author]. The Irish Truth Commission wasaborted and the Chief Commissioner resigned because of litigation and proceduralstrategies to block its progress in response to attempts to subpoena witnesses.
55 ‘In order to ensure the efficacy of the truth and reconciliation process, Canada andthe churches will provide all relevant documents in their possession or control to andfor the use of the Truth and Reconciliation Commission’; IRSSA, supra note 46.
Since 2007, I have become considerably more experienced andworldly wise than I was when Dennis Fontaine walked into Shaun Tup-per’s office those many years ago. I have been and continue to be amember of the National Administration Committee (NAC) representingthe AFN.56 The committee oversees the implementation of the Settle-ment Agreement and deals with appeals on the common experiencepayment. From time to time, I also act as legal counsel representing indi-viduals with claims in the individual assessment process (IAP). Throughmy ongoing involvement in the settlement process, I have had theopportunity to hear complaints, attend survivor’s gatherings, advocatefor better procedures, and appear in courts on issues arising out ofthe Agreement. What I have found is that although most survivors arepleased with the Settlement Agreement and satisfied with the results oftheir claims, there is still a considerable amount of anger and mistrust ofthe process and of lawyers generally.I think a lesson that we are all learning is that revealing the past, pay-
ing reparations, apologizing, and creating a world-class settlement agree-ment cannot, without more, accomplish reconciliation. Reconciliation isfar too large a project for a settlement agreement to accomplish, even ifit is the largest and most comprehensive one in Canadian history.It is also important to understand that principles of restorative justice,
human rights, and Indigenous rights formed the foundation and therationale for the Settlement Agreement. Too many people misunder-stand the Settlement Agreement as some form of welfare, or a ‘gift,’ or acalculation of damages, as opposed to a holistic set of reparations formass fundamental rights violations. If the Agreement is properly under-stood in this context, it has the potential to be a transformative tool thatcould be used to improve the recognition and implementation of Indige-nous rights in the future. By virtue of the stories that are being told andrecorded at the TRC, in the IAP hearings, and in the CEP appeals, theSettlement Agreement can certainly be instrumental in identifying thedirections for the future and protecting our country from repeatingthe mistakes of the past.A member of the South Africa Truth Commission, Rev Bogani
Finca57 told a story at the University of Calgary conference on truth
56 For general information about NAC and its responsibilities, see National AdministrationCommittee (NAC), online: Residential Schools Settlement: Official Court Notice<http://classactionservices.ca/irs/NAC/nac_main.htm>.
57 In 1995, Rev Bongani Finca was appointed a member of the South Africa Truth andReconciliation Commission. He served on the Human Rights Violations Committeeand became the commissioner responsible for the work of the TRC in the Province ofthe Eastern Cape.
commissions58 that eloquently explains the challenge of reconciliation.It is the Cow Story.59
It seems there was a Zulu gentlemen called Tabo, who had a cow. Oneday Mr White came along, overcame Tabo, took his cow, and went away.Tabo lived a miserable life without his cow. He lost his livelihood, hebecame poor, he became depressed, and he couldn’t provide properhousing for his children or get them the things they needed to have asuccessful life. Many years later, a truth commission came along andTabo and Mr White were brought together in a process of reconciliation.They were deeply moved. Mr White offered an apology. Tabo acceptedthe apology. They hugged, they kissed, and they had a cup of teatogether, and even shared a few jokes. At the end of the day, Tabo wasstanding at the door of his shack as Mr White walked out to his car.Before they waved goodbye, Tabo had the courage to ask Mr White,‘What about the cow?’ Mr White got very angry and said, ‘Tabo, this isabout reconciliation, it has nothing to do with the cow.’I repeat this story because ‘talking about the cow’ is where the credibil-
ity of the Indian Residential Schools Settlement Agreement, the apologyand reconciliation, will be tested and their ultimate success determined.‘Talking about the cow’ would be asking the question, now that the Set-tlement Agreement has been implemented, compensation paid, apolo-gies made and accepted, how can Canada move away from its pasthistory of oppression, deprivation, and systemic discrimination of its firstpeoples?To achieve reconciliation, it is not enough merely to stop doing the
wrong things and saying sorry. It must be understood that the SettlementAgreement deals with past wrongs, not future relationships. Systemic is-sues facing the survivors and their families and the majority of the Indig-enous population before the Settlement Agreement was signed are stillpresent. Their lives are still the same. The Indigenous communities con-tinue to live lives that are less than they should be.‘Talking about the cow’ can be expressed by being truthful about what
divides us. It can be talking about power, understanding who has powerover the past, so as to determine who has power over the present. It canbe talking about what government policy should be – about how to bestcombat racism, deep prejudice, and discrimination – about how to
58 Truth Commission: Sharing the Truth about Residential Schools – A Conference onTruth and Reconciliation as Restorative Justice, University of Calgary, 14–7 June 2007[Calgary Conference].
59 Deon Snyman, ‘Restitution Is about Returning the Cow’ (5 July 2011), online: The Res-titution Foundation <http://restitution.org.za/2011/07/restitution-is-about-returning-the-cow-dr-bongani-finca-former-trc-commissioner/>.
advance the position of Aboriginal peoples in Canadian society. It canbe about improving Aboriginal education, protecting and preservingAboriginal languages, strengthening Aboriginal culture and traditions,sharing economic opportunities, and appointing Aboriginal Canadiansto high positions of power. Aboriginal and non-Aboriginal Canadianshave not lived the same history and being truthful about that could gosome distance towards achieving reconciliation.Reconciliation also requires a meeting of the minds of Aboriginal and
non-Aboriginal Canadians that justice has been done between us.Rupert Ross60 relates a story told to him by a Mohawk woman who said
that, in her community, they had an expression for the meeting of theminds, that moment of justice, as they understand it – only it was called‘face cracking.’61 It is the moment when the hard exterior of injusticecracks and the connection between people on the emotional level takesplace. This place is the spiritual realm that comes into play when healingand reconciliation start to occur. But as the Mohawk woman explained,face cracking cannot take place unless there is an understanding of the vic-tim’s experience of being wronged. If we only look at wrongs in anabstract, objective, legal way, no connection will likely occur. Legal descrip-tions and solutions more often than not fail to describe things the way theyreally are and fail to take into account the actual experience of the victims.To illustrate, Ross takes the example of a simple purse snatching on
the street. In terms of the British common law followed in Canada, froman objective standpoint, all that happened is the loss of a purse. It can befixed by a conviction, a return of the purse, and maybe a fine. That’s all.But if we looked at the purse snatching from the victim’s experience,Ross says, we would understand that the harm of the purse snatching ismuch more than the value of the purse. It harms the relationship the vic-tim has with her community. He says unless it is recognized that her rela-tionship with the community is altered, and unless that is talked aboutand dealt with, she will not feel safe in that community and it is likelythat she will continue to feel that way indefinitely. In other words, theharm done by the experience will not heal and she will not be able to
60 As a Crown Attorney working with First Nations in remote northwestern Ontario, Ru-pert Ross learned that he was routinely misinterpreting the behaviour of Aboriginalvictims, witnesses, and offenders, both in and out of court. With the assistance ofAboriginal teachers, he began to see that behind such behaviour lay a complex web ofcoherent cultural commandments that he had never suspected, much less under-stood.
61 Rupert Ross, Returning to the Teachings: Exploring Aboriginal Justice (Toronto: Penguin,1996) at 176, 270–2. See also Summit on Aborginal Economic Development: DevelopingAboriginal Economies, 1 May 2008, online: http://www.law.utoronto.ca/documents/conferences/aboriginaleconomies08_transcript.pdf.
reconcile with the perpetrator; she will never have that face-crackingmoment.What the residential school policy did was to put two cultures into fun-
damental conflict with each other. The effects of that conflict alteredthe relationship between Aboriginal and non-Aboriginal people in a veryprofound and negative way. For reconciliation to occur, this damagemust be understood from the victims’ perspective and steps must betaken to repair it. When it comes to the Settlement Agreement, in orderto experience a face-cracking moment, those working with it, most ofwhom are lawyers, must strive to implement it as much as possible fromthe victims’ perspective even though their inclination and legal trainingtells them otherwise. Trevor Farrow’s argument that the dominant, tradi-tional model of lawyering is unsustainable and that it is an ethical imper-ative for lawyers to be more sensitive to the diverse needs of thecommunities they serve challenges lawyers to take positive action.62
Maintaining the status quo practice of abstract, decontextualized, exclu-sive professionalism not only violates the compact the legal professionhas with society, it arguably ensures that justice for Aboriginal peoplewill never be done.Unfortunately, the Department of Justice lawyers and their superiors
appear to be moving away from the approach Farrow encourages. Thereis a well-founded perception63 amongst claimant’s counsel and survivorsthat Canada has shifted from a more reconciliatory approach to IAPclaims to a hyper adversarial one. Counsel complain of delayed compen-sation payouts, arguments for increasingly narrow interpretations of theSettlement Agreement, refusal to provide documents, imposition of arbi-trary new rules on the process, and shameless reliance on victim-blamingarguments.64 These tactics not only defeat the purpose and intent of the
62 Farrow, supra note 49 at 24.63 This has been the author’s personal experience; it is also this author’s perception
after talking with numerous claimants’ counsels. No formal study has been done. But,for an example of a lawyer’s experience in dealing with the federal government, seeDave Dean, ‘The Government Has Been Forced to Hand Over Documents aboutAbuse of Native Children at St. Anne’s Residential School,’ Vice (20 January 2014),online: <http://www.vice.com/en_ca/read/the-government-has-been-forced-to-hand-over-documents-about-the-abuse-of-native-children-at-st-annes-residential-school>. Seealso Angela Sterritt, ‘Residential School Survivors Face “Adversarial” Government:Lawyers Say Government Attitude Has “Shifted” As Survivors Wait for Information,’CBC News (4 February 2014), online: CBCNews <http://www.cbc.ca/news/canada/north/residential-school-survivors-face-adversarial-government-1.2523520>.
64 For a thorough discussion of the pernicious use of the crumbling skull principle ofcausation in cases involving Indian Residential School survivors and their descendants,see Kent Roach, ‘Blaming the Victim: Canadian Law, Causation and ResidentialSchools’ (2014) 64:4 UTLJ [present issue].
Agreement and re-victimize the survivors, they have the effect of absol-ving Canadian society of its responsibility for the toxic legacy of the resi-dential schools.65 For example, the crumbling skull argumentsroutinely employed by Department of Justice lawyers in IAP hearingsare based on the principle that tort law damages must only be awardedto put the plaintiff back into his original position before the tort wascommitted. In the abstract, this argument can be justified as supportingthe corrective justice principle that underlies tort law generally. How-ever, as Kent Roach argues in this volume,66 when applied to residentialschool survivors in the context of residential school history, the crum-bling skull argument is pernicious and manifestly unjust. It fails toconsider that the original position of many survivors is diminishedbecause of the harms visited on the parents, communities, and cul-ture of Aboriginal peoples over many years of compulsory attendanceat residential schools and because of other forms of discriminationand human rights abuses by the very defendants using the argumentto try and defeat their abuse claims under the IAP. Such tactics, Ibelieve, bring the Canadian legal system and the legal profession intodisrepute.Recent litigation has seen judges weighing in to chastise the govern-
ment for its attitude to its responsibilities under the Settlement Agree-ment.67 In a case where Canada was refusing to provide documentsregarding abuses at a residential school where children were put in anelectric chair for punishment, Justice Paul Perell rebuked the govern-ment for its calculated and insensitive behaviour. He said,
Based on its unduly narrow interpretation of its obligations, Canada has not ade-quately complied with its disclosure obligations with respect to the St. Anne’snarrative . . . If truth and reconciliation is to be achieved, if it is to be a genuineexpression of Canada’s request for forgiveness for failing our Aboriginal peopleso profoundly, the justice of the system for the compensation for the victimsmust be protected.68
65 Ibid at 24.66 Ibid.67 In a recent decision, Justice Schulman of the Manitoba Court of Queen’s Bench
stressed the importance of access-to-justice principles to questions of textual interpre-tation: Fontaine et al v Canada (Attorney General) et al, 2013 MBQB 27 at para 21. Seealso Frank Iacobucci, Report of the Independent Review Conducted by the Honourable FrankIacobucci (February 2013), online: Ontario Ministry of the Attorney General <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/pdf/First_Nations_Representation_Ontario_Juries.pdf>.
68 Fontaine v Canada (Attorney General), 2014 ONSC 283 at para 226.
In another legal battle between Canada and the TRC for disclosure ofrelevant documents,69 Canada moved very aggressively to strike affida-vits, argued that the TRC had no legal capacity to bring the application,and argued that the only documents it was obliged to produce werethose assembled for the litigation preceding the settlement. Even thoughCanada was unsuccessful, its positions did nothing to engender confi-dence that reconciliation goals of the Settlement Agreement will beachieved.70
As explained above, the more legalistic the process of implementation,the more it moves away from the guiding principles and the more one-sided it becomes. This bias, in turn, diminishes the sense in the survivorcommunity that justice or healing, or ‘face cracking,’ will ever beachieved. The danger of this happening is before us now. The inevitableconsequence of the adversarial climate that is being created will be asense of betrayal and re-victimization, not justice or reconciliation.Delay has become the most critical issue of all. With the numbers of
survivors dying now at an average of more than 28 per week,71 unlessthere is a concerted, effective, and visible effort to improve the speed ofimplementation by adding resources and streamlining the process,many survivors will not live to have a hearing and the opportunity to telltheir stories. There could be no clearer example of justice delayed beingjustice denied.
VI Conclusion
At the 2004 conference, it was made very clear that reconciliation wouldbe impossible under the ADR settlement plan. When the government ofthe day was presented with an alternative that embraced the guidingprinciples and it took the Aboriginal view of fairness and justice intoaccount, the Settlement Agreement was achieved in record time. Byagreeing to compensate survivors for loss of language and culture and
69 Fontaine v Canada (Attorney General), 2013 ONSC 684, 114 OR (3d) 263.70 ‘Ottawa Ordered to Provide All Residential Schools Documents: Truth and Reconcili-
ation Commission Took Federal Government to Court over Denial of Millions ofDocuments,’ Canadian Press (30 January 2013), online: CBCNews <http://www.cbc.ca/news/politics/ottawa-ordered-to-provide-all-residential-schools-documents-1.1345892>.
71 In a news release issued on 20 December 2002, the Government of Canada said thatthere were approximately 90 000 students of residential schools still alive; see CBA,supra note 36. On 31 January 2005, the government Web site reported that there were85 975 students of the residential schools still alive; see ibid. Over a 110-week period, itis, therefore, estimated that 4 025 students in the group died. This works out to anaverage of 5 deaths per day.
loss of family life, to soften proof of causation requirements in individualabuse claims, to provide health supports, and to attend to the early com-pensation of the sick and elderly and to the truth telling, healing, andcommemoration components,72 the government achieved something noother government in the world has been able to achieve. It stood aloneas a government that understood that a victim-centred, inclusive, gener-ous, holistic, and culturally sensitive approach was the appropriate stan-dard and methodology for dealing with mass violations of humanrights.73 Today, a different government is in place, and although theHarper government issued the apology, the words of the apology are notringing true in terms of the strategies and tactics being employed by itsservants in the IAP hearings and in the litigation with the TRC.There is no question that the amounts of money awarded in CEP and
IAP claims are tangible markers that go some way towards vindicatingthe wrongs by providing solace in what they can buy. By comparison withother countries and what they have awarded for similar abuses, the com-pensation is on the higher end of generous and that is something we canbe proud of.74 But it must always be borne in mind, and I have been toldso very many times by survivors, that no amount of money can replace a
72 IRSSA, supra note 46.73 In 2010, the United Nations Permanent Forum on Indigenous Issues recognized the
Canadian Truth and Reconciliation Commission as a model of best practices and aninspiration for other countries; see Truth and Reconciliation Commission of Canada,Truth and Reconciliation Commission of Canada: Interim Report (Winnipeg, MB: Truthand Reconciliation Commission of Canada, 2012), online: <http://www.attendancemarketing.com/~attmk/TRC_jd/Interim%20report%20English%20electronic%20copy.pdf>.
74 The comments of Tom Boland, a senior official in Irish Education, that the Canadiancompensation for Indian Residential Schools was ‘de minimus and grudgingly given’were indicative of the Irish perception that the ADR Canadian model was not gener-ous as it stood in 2004; see Kathleen Mahoney, ‘Report on Fact-Finding Mission to Ire-land Regarding Compensation Scheme and Related Benefits for Industrial SchoolSurvivors in Ireland’ [unpublished], online: <http://www3.telus.net/kmahoney/Documents/files/Irish%20report.pdf>. Boland, who was recognized as the main archi-tect of the redress scheme and the government’s policy there, told me that the deci-sion was made early on in Ireland to compensate the survivors for 100 per cent oftheir injuries because it was the right thing to do, whether or not the Church was will-ing to contribute. He said that the attitude that guided the thinking behind the Irishscheme, both in amount of compensation offered as well as in the procedural require-ments and the support services, was generosity. It was also understood that, withoutsome out-of-court resolution, the survivor’s claims would ‘gum up’ the courts, so it wasessential that they be kept out of the courts as much as possible. He knew this was notpossible unless the plan was generous. There was also the fear that the courts mightgrant much higher awards than the current common law provides, given the uniquenature of the harms suffered. By the time the ADR was revised into the IAP, the Cana-dian plan was considerably more generous than the Irish plan.
lost childhood, replace the devastation of childhood sexual and physicalabuse, the loss of language and culture, and most importantly, the loss offamily life. That is why restorative justice principles and reconciliationare so important and why it is of great concern that the reconciliatorybenefits of the Settlement Agreement are now in jeopardy because of at-titudes now on display that are reminiscent of the ‘rounding down’requirement of the old ADR.With the Idle No More movement happening across Canada and
internationally, there is an opportunity for the parties to the SettlementAgreement to reach out together to mobilize public opinion and edu-cate the entire population about the truth of the residential school his-tory and how it relates to Aboriginal discontent. The ignorance of themajority of the Canadian population of the very events at the core of theSettlement Agreement is another challenge that still needs to be con-fronted if reconciliation is to be achieved. But this challenge requiresthe cooperation and collaboration of parties working together – fightingeach other in the courts will have the opposite result.Reconciliation is a multifaceted process that may take decades or gen-
erations to achieve. It will not happen on its own. Reconciliation willrequire much more than the Settlement Agreement, although it is agood start towards remedying the wrongs of the past. Healthier and saferrelationships between Aboriginal and non-Aboriginal peoples in thefuture will require commitment and political leadership at all levels ofgovernment to end the inherited stigma of inferiority that corrupts themajority as much as it corrupts the minority. Political, social, and culturalchange must take place because truth telling without substantive changewill be a hollow and unproductive exercise.This is why the final element of reconciliation, which is forgiveness,
remains a question mark. For those who are able to forgive it may com-plete the circle of their experience and bring some peace. For those whocannot forgive, their wounds will likely continue to fester and the burdenof anger and bitterness may remain and be passed down, generationafter generation. Perhaps the TRC will be able to provide the solace thatmoney cannot and give comfort to those who still struggle with the after-math of the residential school experience in their daily lives. Thenagain, perhaps it will not, if rancour and adversarial attitudes persistbetween Canada, the TRC, and claimants.I believe the Settlement Agreement, if it is implemented in the spirit
in which it was created, is one of which Canada and Canadians canbe proud. It has the potential to enhance Canada’s reputation as aleader in the world at the same time as it increases the stature of andrespect for First Peoples at home and abroad. The longer run success ofthe Settlement Agreement’s objective of reconciliation will depend on
attitudes, commitments, and circumstances hardly knowable at thismoment – including attitudes of Aboriginal peoples about how muchthey wish to seek achievement within mainstream institutions and goals.What is clear is that the goal of reconciliation will not be achieved unlessa climate conducive to reconciliation is nurtured and encouraged by allthe parties. As Canada bears the most responsibility for a devastation vis-ited upon the first peoples that former Justice Minister Irwin Cotler de-scribed as ‘the most disgraceful, harmful, racist experiment everconducted in our history,’ it should take the leadership role and assumethe greatest responsibility for creating the necessary conditions for rec-onciliation.I would like to end this paper on a personal note by saying that the
experience of negotiating and working on all aspects of the SettlementAgreement has not only been an honour; it has been the most reward-ing, educational, and fulfilling work of my life. I continue to learn some-thing new every single day, and the friendships I have made in the FirstNations communities, on the NAC, with the AFN, and above all, with thesurvivors and their families I represent have been transformative and areprecious. I am grateful beyond words to Dennis Fontaine and the AFNfor hiring me and opening the door to this amazing opportunity to bepart of a history that I continue to believe has the potential to prompt adifferent and better course for the country.
