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Instructive Past: Lessons from the Royal Commission on Aboriginal Peoples for the Canadian Truth and Reconciliation Commission on Indian Residential Schools

Published online by Cambridge University Press:  02 January 2013

Jula Hughes
Jula Hughes
Affiliation:
Faculty of Law, PO Box 4400,University of New Brunswick, Fredericton, NB E3B 5A3,jhughes@unb.ca
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Abstract

Over time, the Canadian state has used a variety of mechanisms to address its troubled relationship with its indigenous population, the most prominent of which so far was the Royal Commission on Aboriginal Peoples (RCAP). RCAP was mandated to develop both a constitutional framework and a comprehensive social-welfare policy. Staffed predominantly with constitutional lawyers, it articulated a sophisticated constitutional theory, which was not implemented, and did little to ameliorate the living conditions of Aboriginal people. The Truth and Reconciliation Commission on Indian Residential Schools (TRC), while arising from the settlement of a national class action, can be seen as a successor commission to RCAP. It follows in the procedural footprints of RCAP in a number of ways, including in the profile of its key appointments. This article argues that looking back at the successes and failures of RCAP can be instructive for the TRC as it carries out its mandate, allowing us to predict some areas that will be particularly challenging. In these areas, the TRC will require a departure from the RCAP blueprint if it is to achieve the ambitious goals of a TRC in a non-transitional-justice context.

Résumé

Au fil du temps, l'État canadien a utilisé toute une variété de mécanismes afin de se pencher sur les relations parfois difficiles qu'il a entretenues avec la population autochtone. Le plus remarquable jusqu'à présent a été la Commission royale sur les peuples autochtones (CRPA). Cette dernière avait le mandat d'élaborer un cadre constitutionnel ainsi qu'une politique exhaustive en matière de bien-être social. Composée essentiellement d'avocats de droit constitutionnel, cette commission a développé une théorie constitutionnelle très élaborée, qui n'a pas été mise en œuvre; et n'a pas fait grand-chose pour améliorer les conditions de vie des Autochtones. La Commission de vérité et de réconciliation concernant les pensionnats indiens (CVR), qui découle de l'établissement d'une action collective nationale, peut-être perçue comme la remplaçante de la CRPA. Elle suit les traces procédurales de la CRPA de plusieurs façons, y compris dans le profil de ses nominations-clés. Cet article soutient que se remémorer les succès et les échecs de la CRPA peut être instructif pour la CVR lors de l'exécution de son mandat. Cela nous permet de prévoir les domaines qui seront particulièrement compliqués à gérer. En ce qui concerne ces derniers, la CVR devra s'écarter du plan de la CRPA si elle veut atteindre les objectifs ambitieux d'une CVR dans un contexte de justice non transitoire.

Keywords

Canadian Truth and Reconciliation CommissionIndian Residential SchoolsRoyal Commission on Aboriginal Peoplesestablishing and mandating truth commissionsevaluating truth commissionsCommission canadienne de vérité et de réconciliationpensionnats indiensCommission royale sur les peuples autochtonesétablir et mandater des commissions de véritéévaluation des commissions de vérité
Type
Truth, Reconciliation and Residential Schools
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 27 , Issue 1 , April 2012 , pp. 101 - 127
Copyright
Copyright © Canadian Law and Society Association 2012

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References

2 On the importance of mandates for the outcomes of truth commissions see Hayner, Priscilla, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd ed. (London: Routledge, 2011)Google Scholar, ch. 6.

3 On the composition and appointment process of TRCs in international comparison see Freeman, Mark, Truth Commissions and Procedural Fairness (New York: Cambridge University Press, 2006), 28–31CrossRefGoogle Scholar.

4 Tanja Zinterer's extremely insightful monograph Politikwandel durch Politikberatung (Wiesbaden: Verlag für Sozialwissenschaften 2004)Google Scholar is the most comprehensive study of the RCAP process. In addition to reviewing the archival and documentary record, Zinterer interviewed all the RCAP commissioners and a number of others directly involved in the process. This article is indebted to her work throughout. I have not quoted from her book because it is written in German, but have indicated specific reliance on her ideas as appropriate. A translation would make a very welcome addition to the RCAP literature in Canada, a literature that is particularly sparse on procedural issues.

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10 Stanton, Kim, “Truth Commissions and Public Inquiries: Addressing Historical Injustices in Established Democracies” (PhD diss., University of Toronto, 2010), https://tspace.library.utoronto.ca/handle/1807/24886Google Scholar, similarly argues that the TRC should be understood as being in the nature of a public inquiry, looking back to the Berger Inquiry.

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24 This development could be usefully compared to the extraordinarily successful efforts at public education by the Stolen Generations process in Australia. Particularly noteworthy in this regard are the mobilization of popular-culture modes of knowledge transmission and the efforts of the Australian Human Rights Commission. See also Kennedy, Rosanne, “Subversive Witnessing: Mediating Indigenous Testimony in Australian Cultural and Legal Institutions,” WSQ: Women's Studies Quarterly 36, 1/2 (2008), 60Google Scholar; Kennedy, Rosanne, “Reconciliation from Below: The Sorry Book Campaign and the Emergence of a Witnessing Public in Australia” (Paper presented at Beyond Reconciliation conference, Cape Town, December 2–6, 2009)Google Scholar.

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26 It should be acknowledged that some focused inquiries have taken a long time and that some with broad mandates have concluded more quickly. These appear to me to be exceptions that do not disprove what would intuitively seem to be the case: more area to cover takes more time and resources. See also Sharpe, and Roach, , Brian Dickson, 458Google Scholar.

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29 Including solicitor-client, litigation, mediation, and settlement privileges, to name only the most important.

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31 In his practice, on the bench, in his academic work, and as an advisor to government, Justice Iacobucci focused on the areas of corporate law and tax law.

32 Indian Residential School Settlement Agreement between Canada and the Plaintiffs of the National Class Action on Indian Residential Schools (May 8, 2006), http://www.residentialschoolsettlement.ca/settlement.html.

33 The statement was offered by the Honourable Jane Stewart, Minister of Indian Affairs and Northern Development, on the occasion of the unveiling of Gathering Strength—Canada's Aboriginal Action Plan; it can be found at http://www.itk.ca/page/statement-reconciliation.

34 The principles developed by the Working Group on Truth and Reconciliation and those of the Exploratory Dialogues (1998-1999) were the result of a country-wide consultative process with survivors, Aboriginal healers and leaders, legal counsel, church leaders, and senior government officials. A report on the group's work was published by the Department of Indian Affairs and is available at http://www.glennsigurdson.com/wp-content/uploads/2010/09/Reconciliation_healing.pdf.

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39 I am not aware of any study of the self-interpretive acts of RCAP. This absence reflects a general lack of academic engagement with the process of RCAP. A comprehensive study of press releases, forewords, introductory remarks at hearings, and other self-interpretive acts of RCAP would make an important contribution to our understanding of the RCAP process. Overall, the academic literature on RCAP to date falls short of what might be expected from such a momentous commission.

40 Hayner, Unspeakable Truths, ch. 1; Anthonissen, Christine, “Framing Testimonial Narratives: Constructing a Trade-Off between Justice and Reconciliation” (paper presented at Beyond Reconciliation conference, Cape Town, December 2–6, 2009)Google Scholar. Leebaw, Bronwyn, “The Irreconcilable Goals of Transitional Justice,” Human Rights Quarterly 30, 1 (2008), 95CrossRefGoogle Scholar, analyses a number of transitional-justice objectives that may turn out to be in tension rather than mutually enforcing.

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47 I borrow the notion of a creative absence from French symbolist theory, in which the aesthetic object is evoked through absences in the text rather than named and produced. In this sense, healing is the unspoken ultimate goal of the process, a goal too elusive to be named and one that might be rendered impossible once spoken.

48 “The Aboriginal Healing Foundation is an Aboriginal-managed, national, Ottawa-based, not-for-profit private corporation established March 31, 1998 and provided with a one-time grant of $350 million dollars by the federal government of Canada as part of Gathering Strength—Canada's Aboriginal Action Plan. The Aboriginal Healing Foundation was given an eleven-year mandate, ending March 31, 2009, to encourage and support, through research and funding contributions, community-based Aboriginal directed healing initiatives which address the legacy of physical and sexual abuse suffered in Canada's Indian Residential School system, including inter-generational impacts.” Aboriginal Healing Foundation, “What Is the Aboriginal Healing Foundation?” http://www.ahf.ca/faqs (Aboriginal Healing Foundation, 2012)Google Scholar.

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53 The issue of gender relations and related power structures among commissioners would certainly warrant a separate study, but goes beyond the scope of this article.

54 This is not to suggest that they were lacking in professional expertise, merely to argue that this was not the dominant basis for their appointment.

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57 Indeed, it has become part of the post-RCAP rhetoric to point to areas of non-implementation and conclude from these that RCAP was a wholesale failure.

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61 For a careful, if somewhat defensive, review of the public image of lawyers in Canada see Fernandez, Angela, “Polling and Popular Culture (News, Television, and Film): Limitations of the Use of Opinion Polls in Assessing the Public Image of Lawyers,” in In the Public Interest; The Report and Research Papers of the Law Society of Upper Canada's Task Force on the Rule of Law and the Independence of the Bar, ed. Sossin, Lorne, 209–31 (Toronto: Irwin Law/Law Society of Upper Canada, 2007)Google Scholar.

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63 Wilson, Marie, in an interview with the United Church Observer, November 2, 2009Google Scholar: “Q Former colleagues at CBC North, where you worked for close to two decades, have called you ‘tough’ and ‘strong.’ How will those qualities serve you as you listen to the stories of residential school survivors? A I fully expect to be both hardened and softened by this experience. I'm not going to be any use to anyone if I'm sitting there blubbering through a terrible story. On the other hand, I don't ever want to lose my heart for the humanity behind that story.”

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66 The peaceful progress of the Aboriginal Day of Action in 2007 may be cited as evidence that there has indeed been significant change since RCAP. While this annual day of action or protest as it is variously called, which is organized by First Nations communities from across the country, saw a number of roadblocks and street protests in 2007, the atmosphere tended to be festive rather than fearful. One of the modes of change has been in policing. While Oka represents a low point in the relationship between First Nations and the RCMP, the management of the 2007 event was an example of cooperative and consultative policing. Much of the credit for this development goes to Aboriginal officers in the RCMP, particularly Superintendent Shirley Cuillierrier, who managed the national policing strategy for the Aboriginal Day of Action. However, neither the violence turned inward nor the violence perpetrated against indigenous people has abated.

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68 Zinterer, Politikwandel durch Politikberatung, asks whether policy change can be effected through a commission process giving policy advice and concludes that despite its successes, RCAP was ultimately unable to produce the necessary paradigm shift in indigenous policy.

69 It has also tended not to identify obstacles to implementation, because barriers are seen to exist at a fundamental or philosophical level. For example, a legal or jurisprudential debate on Aboriginal sovereignty has tended to obscure the bureaucratic resistance to change at the Department of Indian Affairs and Northern Development or unilaterally imposed federal accountability rules as implementational stumbling blocks. For a discussion of the latter example see Shepherd, Robert, “Moving Tenuously toward Lasting Self-Government for First Nations: Understanding Differences with Respect to Implementing Accountability” (PhD diss., University of Toronto, 2006)Google Scholar.

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