Introduction
My parents, immigrants from Haiti, settled in Canada. I grew up in Sept-Ⓘles, a town with an Indigenous community. We were the first Black family to put down roots there. One day, Steve, an Indigenous friend, invited me to his home, a brand-new house on the reserve.Footnote 1 I was shocked. The walls were covered with graffiti of despair, “red sacrifice,” and “black mourning.” As an Indigenous person assigned a house by the Federal Government, it “was living in prison.” For Steve, an Indian residential school (IRS) survivor’s descendant, it was the symbol of the “civilizing” society that wiped out his Indigenous values and culture, eradicating the foundation of his identity. The graffiti was a form of resistance.
Steve taught me a lesson: how the impacts of the IRS policy, rooted in colonialism, systemic racism, and violence, derailed Indigenous people’s destinies. This history of oppression of Indigenous peoples is mainly unknown. As a settler state, the Canadian government implemented policies designed to take control of Indigenous lands and eradicate Indigenous identity and culture. The Indian Residential Schools were designed to assimilate Indigenous peoples by eradicating their culture.
In 2005, on behalf of the government of Canada, I led the team that negotiated the terms of Canada’s Truth and Reconciliation Commission. This experience allowed me to be part of a historic settlement recognizing historical injusticesFootnote 2 faced by Indigenous peoples like Steve. In this essay, I will explore how legal principles, such as international law, can inform national settlement aims aimed at healing and reconstructing national relationships with Indigenous peoples.
The Factual Context
Power, control, and isolation were key to the colonization of Indigenous peoples. In the nineteenth century, the Canadian government crafted a policy to educate Indigenous children. Religious entitiesFootnote 3 were responsible for its implementation. This policy was the cause of the loss of Indigenous language, culture, and spirituality.Footnote 4
In 1883, Prime Minister John A. McDonald presented the IRS policy:
When the school is on the reserve, the child lives with its parents, who are savages …. [T]he Indian children should be withdrawn as much as possible from parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men.Footnote 5
According to Duncan Campbell Scott, deputy superintendent of the Department of Indian Affairs (1913–1932), the policy was “a final solution to our Indian Problem.”Footnote 6 In those institutions, Indigenous children were subject to physical, sexual, psychological, and spiritual abuse. The legacy of this colonial experiment extended beyond individual survivors, and intergenerational dysfunctions affected the family and inflicted long-term harm on Indigenous communities.Footnote 7 The Supreme Court’s chief justice, Beverley McLachlin, characterized the effect of the IRS policy as a “cultural genocide.”Footnote 8
Government Responses to the Legacy of the IRS
In 1990, the grand chief of the Assembly of Manitoba, Phil Fontaine, was a whistleblower about IRS abuses. During an interview on national television, he revealed that his experience of abuse arguably changed the course of history.Footnote 9 After his testimony, IRS survivors brought numerous class actions against Canada and religious entities that ran the schools.
The government’s initial response was designed to address the issues raised in the Royal Commission Report on Aboriginal PeoplesFootnote 10 and foster reconciliation as recommended in the Statement of Reconciliation.Footnote 11 The programmatic approach focused on monetary compensation on a case-by-case basis and had traumatic effects on the IRS survivors.
In the Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools (Report),Footnote 12 the Assembly of First Nations’ (AFN) legal team exposed the injustice suffered by the survivors and their communities. They highlighted that the government response gave little or no credibility to the survivors; it ignored the deeper and structural discrimination, disregarding Indigenous knowledge in favor of Western knowledge, an example of epistemic violence.Footnote 13 Further, the IRS experience invalidated and deprived the Indigenous peoples of their experiential knowledge. This loss had consequences beyond material—the loss of Indigenous knowledge impacts the ability of Indigenous peoples to make sense of their lives.
Stressing the urgency to tackle this complex legacy rooted in racism and colonialism, the AFN rejected the government’s response. Ignoring Indigenous voices was not neutral; it led notably to democratic exclusion.
The voices of survivors must be heard. Sharing their experiences was an act of resistance that invigorated social change.Footnote 14 Moreover, in the process, survivors reaffirm themselves as agents. Justice would no longer be left in the hands of politicians, civil servants, lawyers, or judges who had little, if any, understanding of the damages that stemmed from IRS policies based on white supremacy and systemic racism.
The vision of the AFN was detailed in the Report, which explained “how the government’s approach was discriminatory, sexist, under-inclusive, devoid of Indigenous legal traditions and cultural awareness.” The settlement should be rooted in the Gathering Strength Dialogue PrinciplesFootnote 15 reflecting Indigenous values.Footnote 16 It should: (1) be inclusive, fair, accessible, and transparent; (2) offer a holistic and compressive responsibility recognizing and addressing all the harms resulting from IRS; (3) respect human dignity and racial and gender equality; (4) contribute toward healing and reconciliation; and (5) do no harm to survivors and families. As a consequence of this pushback from the AFN, a consultation process was set up.Footnote 17
The IRS Settlement Agreement Considered Numerous Pluralistic Legal Approaches to Alleviate Epistemic Injustice.
Several principles from the Supreme Court of Canada’s decisions on Indigenous law formed the foundation of the policy framework known as the “7 Rs.” The 7Rs were the Recognition of the historic place of Indigenous peoples and the Respect for the Indigenous peoples’ distinct constitutional status,Footnote 18 Redress for historical wrongs, Responsiveness as the duty to consult,Footnote 19 Representation to remedy their overrepresentation in the criminal justice system, Footnote 20 Reconciliation as an underlying dynamic process, and, ultimately, the Renewal of an egalitarian relationship based on those six principles.
Tort law seeks compensation for physical and specific psychological harm. As courts are not designed to address broken social relationships, the IRS experience needed an alternative form of justice to tackle systemic violations. IRS survivors suffered extensive human rights violations recognized by international conventions.Footnote 21 Theodoor van Boven’s Study concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental FreedomsFootnote 22 was one of the key elements used as a foundation for negotiating the settlement.
In addition, Critical Race Theory Footnote 23 informed the settlement approach and required that IRS legacy should be unpacked.Footnote 24 Understanding the historical context is central to analyzing the relationship between race, power, and privilege. Critical Race Theory questions the law that devalues historical groups and interrogates its presumed objectivity and neutrality. Critical Race Theory and Tribal Critical Theory emphasize the necessity for systemic change.Footnote 25 Specifically, Tribal Critical Theory focuses on confronting the lingering effect of colonization within society. To transform the colonial relationship, it is fundamental to hear the voices of Indigenous peoples. Furthermore, since Indigenous women were victims of the IRS system, an intersectional approach was essential, as developed in Indigenous Feminist Legal Theory.Footnote 26
As the Royal Commission on Aboriginal Peoples stated: “Just as social problems spring in part from collective experience, so solutions require change at the collective level. Aboriginal people acting alone cannot shift the weight of disadvantage and discrimination.”Footnote 27 Indigenous and non-Indigenous people must collaborate to build a new partnership. The AFN “reached out to thousands of survivors, elders, and intergenerational survivors to ascertain what they wanted from the process and under what terms.” Addressing the needs of victims was central to the pursuit of justice. Offenders must acknowledge the harm they have caused and make amends. Through accountability and reparation, the perpetrators were offered an opportunity to renew their relationship with the survivors and Indigenous peoples. The Truth and Reconciliation Commission is the primary avenue to achieve that objective.
Elders, as gatekeepers of Indigenous wisdom, knowledge, and history, played a crucial role in developing the settlement and its acceptance by their nations. By sharing their vision of reparative justice in an Indigenous context, the elders’ voices were pivotal to achieving a settlement that would lead to reconciliation.
Terms of the 2015 IRS Settlement Agreement Footnote 28
The landmark IRS settlement agreementFootnote 29 serves as an authoritative legal approach to redress colonialism and address the ongoing impacts of racism on Western societies. Its conceptualization of reparations focuses on “the undoing of colonial relations, modes of domination and patterns of distribution that still structure global relations.”Footnote 30 By recognizing the need for an in-depth understanding of the epistemic injustices suffered by Indigenous peoples, it lays the groundwork for a comprehensive strategy that paves the way for reconciliation.
The IRS settlement comprises multiple components designed to address the multiple harms. “Compensation is ordinarily a central component of the right to an effective remedy,”Footnote 31 it took the form of a fund to provide a Common Experience Payment,Footnote 32 recognizing the IRS survivor’s experience and providing a partial remedy for their loss. With the surplus of this fund (Can$350 million), an education fund for IRS students and their descendants was established, thus acknowledging the intergenerational impact.
In addition, Prime Minister Harper apologized.Footnote 33 The Indigenous leaders received and accepted the apology on the floor of the House of Commons. Indigenous ceremonies were held to acknowledge the importance of Indigenous culture. This gesture of recognition and respect paved the way to reconciliation.
The religious entities had formally apologized for their role in the IRS. In 2022, the Pope apologized to IRS survivors on Canadian soil,Footnote 34 depicting the IRS experience as genocide.Footnote 35 In 2023, the Doctrine of Discovery, one of the bedrocks for racist theories that led to the IRS policy, was rejected by the Vatican.Footnote 36
Looking forward, the Independent Assessment Process, a streamlined alternative dispute resolution process, was established, respecting Indigenous traditions and values. In addition, the Aboriginal Healing Foundation, which aimed to strengthen communities’ capacity to meet their long-term healing needs based on Indigenous knowledge, received additional funding.
Elements of the Settlement Aimed at Social Transformation
For Phil Fontaine, then the national chief of the AFN, no settlement could be reached without a truth-telling process. This was the key element to bringing about social transformation. The Truth and Reconciliation Commission, the first in a non-post-war conflict, provided a context for Common Experience Payments by preventing them from being seen as payments buying the survivors’ silence or being cast as “blood money.” As strongly advised by the Elders, the Commission was the space where survivors shared their stories in a non-adversarial process informed by Indigenous traditions.
By unveiling the multiple facets of the truth about the IRS, the Commission highlighted the social problems linked to the IRS that still afflict Indigenous communities, opening the door to healing the relationship with Canadians. The effects of the Commission are akin to “social therapy.” It has received nearly 7,000 statements from survivors and their families. More than 155,000 Aboriginal and non-Aboriginal individuals attended its hearings.
In 2015, What We Learned: The Principles of Truth and Reconciliation,Footnote 37 the Commission report, and the ninety-four calls to actionFootnote 38 were presented to Prime Minister Justin Trudeau,Footnote 39 who accepted them on behalf of the government. The calls to action were designed to address systemic racism by reforming policies at all levels of government. The report provides a roadmap for reconciliation between Indigenous peoples, Canadians, and states by promoting respect for human rights, addressing historical injustices, and ensuring that Indigenous peoples participate in decisions affecting them. From an Indigenous perspective, it offers hope and inspiration for a better future grounded on a new relationship based on mutual recognition and respect. The first principle is: “The United Nations Declaration on the Rights of Indigenous PeoplesFootnote 40 is the framework for reconciliation at all levels and across all sectors of Canadian society”; another principle is that “a process of healing relationships … requires truth-sharing, apology, and public commemoration that acknowledges the wrongs of the past.”Footnote 41
The National Research Centre was created to preserve the Commission’s archives and historical records. The settlement provided money to commemorate the IRS experience and ensure it would never be forgotten.
Conclusion
Can the justice system heal Indigenous peoples? Can settlement be a tool for social reconstruction in the face of human rights violations? These are some of the questions the IRS settlement has sought to answer, drawing on Indigenous knowledge and international law principles to address the IRS experiences fully.
Without recognition of the multiple violations of human rights, reconciliation and healing will be nothing more than wishful thinking. To address systemic violations of the rights of Indigenous peoples, justice must be reconceptualized.
The innovations of the IRS settlement mark a significant milestone that broadens the horizons of how disputes rooted in systemic violation of human rights and racism can be resolved. This agreement paved the way for other settlements, like the LGBTQ purge settlement.Footnote 42
The United States and Australia, nations stained by colonialism, will have to face their troubled legacy. The holistic approach was developed to address the Canadian experienceFootnote 43 should serve as a model, notably creating a Truth and Reconciliation Commission in a non-post-war conflict.
A scene from the movie “Call Me Human” by Kim O’Bomsawin stands out in my mind: the Innu poet and elder Joséphine Bacon cuts off the head of a fish, recounting the history of the territory, its inhabitants, and the mythology of her people. This powerful scene serves as a poignant reminder of the importance of culture, not only as an element of epistemic justice but also in the process of reconciliation.
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