7.3.1 Litigation and Agency

Litigation represents a site for significant agency by survivors seeking to assert their rights or allege their experiences of harms. However, several features of litigating regarding non-recent harms will affect this agency. First, criminal trials of non-recent abuses take place in a context ‘disconnected from the normal matrix of physical and circumstantial detail’,Footnote ¹³ associated with an isolated criminal offence close to the period of investigation or trial. Fair trial concerns are thus especially prominent for historical abuses, which will be impacted by the availability of documentary evidenceFootnote ¹⁴ and limited by the deaths and old age of alleged perpetrators.Footnote ¹⁵

Second, the distinctive legal personality of church dioceses and religious orders, which will often be unincorporated associations, or in the case of a bishop a corporate sole, or where the assets are held in a trust, may make it difficult for survivors to sue the correct defendant.Footnote ¹⁶ Canon law concentrates executive, legislative, and judicial power in diocesan bishops, until recently giving individual bishops discretion and authority to respond to allegations of sexual abuse.Footnote ¹⁷ However, recent developments in Canada, the United Kingdom, and Ireland have allowed for dioceses and religious orders to be sued,Footnote ¹⁸ with the most recent changes in Western Australia enabling survivors to sue current holders of religious institutions for historical abuse cases and access the assets of related trusts and corporations for the purposes of satisfying judgments.Footnote ¹⁹

Third, attempts to litigate may be met with aggressive tactics employed by state or church institutions in resisting allegations of historical abuses, including delayed compliance with discovery and interrogations of plaintiffs’ personal histories.Footnote ²⁰ Jo Renee Formicola notes that across multiple dioceses, church leaders would offer significant financial settlements to survivors in exchange for confidentiality and secrecy, allegedly to protect not only the identity of victims but also the reputation of the church and alleged perpetrators.Footnote ²¹ This had the effect of precluding one survivor from knowing about other allegations in the diocese or against their perpetrator. Finally, across several jurisdictions, as discussed below, historically canon law was not an effective form of justice for survivors, in large part because its own standards were not even implemented regarding child abuse cases, with few if any canon trials taking place for contemporary allegations of non-recent child sex abuse.Footnote ²² This combination of factors suggests it has been challenging for survivors to assert their rights and allege wrongdoing against state and church actors, even where the harm was criminal or illegal when it took place. In addition, structural factors compound these limitations to litigation.

7.3.2 The Structure of Litigation

The use of litigation for historical-structural injustices remains particularly challenging due to a number of structural features. First, to bring civil litigation regarding non-recent harms, victim-survivors must overcome the law of limitation, which allows a plaintiff a specific amount of time from a specified date within which to bring an action against a defendant. Ireland has the most restrictive limitation regime in the common law world.Footnote ²³ The lack of a general discretionary judicial power in the Irish limitation regime contrasts with the approach in the United KingdomFootnote ²⁴ and extended approaches in Canada, and with the United States.Footnote ²⁵ However, in Canada, limitation regimes have denied Indigenous peoples the capacity to litigate in several cases outside of the context of sexual abuse.Footnote ²⁶ In Australia, the Royal Commission to Investigate Institutional Responses to Child Sexual Abuse concluded that ‘current limitation periods are inappropriate given the length of time that many survivors of child sexual abuse take to disclose their abuse’.Footnote ²⁷ The Australian States of Queensland and Western Australia recently retrospectively removed the limitation period for child sex abuse cases, enabling a case to be brought at any time in a person’s life.Footnote ²⁸

Second, given the scale of historical abuses, there are a large number of potential litigants, which suggests a benefit to using class actions in civil litigation. In a class-action lawsuit, one party sues as a representative of a larger ‘class’ of people, reducing the cost to individual plaintiffs and the need for repetitive hearings. In jurisdictions with class-action mechanisms, this structure may operate as a form of survivor empowerment, enabling survivors to share the risks and costs of litigation. Third, unlike other forms of litigation, canon law largely operates in secret. It is only in early 2020 that Pope Francis ordered the removal of the ‘pontifical secret’, hiding the existence of canon law trials from national law enforcement.Footnote ²⁹ Until then, no mandatory reporting or cooperation with civil laws was required under canon law, despite repeated national inquiries and United Nations Human Rights Committees recommending the abolition of such secrecy.Footnote ³⁰ Formicola suggests that this structure emerged as successive popes were reluctant to accept the separation of church and state and instead emphasised the theological superiority of church teaching and law.Footnote ³¹ In their relationship to non-recent violence and to the widespread scale of abuse, the structure of civil litigation may both empower and constrain survivors’ ability to address their experiences of harm.

7.3.3 Accountability and Epistemic Injustice

Litigation may also represent a site of fresh epistemic injustice for victim-survivors or their families, where their knowledge may not be believed or acknowledged as true,Footnote ³² especially in contexts of limited corroborating evidence.Footnote ³³ Historically women and girls were often disproportionately disbelieved or blamed if they alleged sexual violence.Footnote ³⁴ Any delay in bringing a criminal complaint regarding non-recent abuse may be heavily scrutinised by a court, which has tended to address such delay by establishing whether post-traumatic stress disorder (PTSD) or repressed memory inhibited an individual from bringing a complaint.Footnote ³⁵ Such approaches frame survivor emotions as relevant only in medical terms and may neglect consideration of the broader political, cultural, and legal circumstances, where the alleged harm may have been authorised or condoned by the state. This approach creates an artificially receptive historical context that may deny victim-survivors access to courts for non-recent events and compound their experience of harm.

In contrast, civil liability could contribute to redistributing epistemic and ontological power, by reframing abuse that was once denied and not believed as injury and an abuse of power,Footnote ³⁶ and telling victim-survivors’ stories individually, publicly, and graphically.Footnote ³⁷ Timothy Lytton concludes that tort litigation reframed clerical child abuse: ‘Legal nesting fuelled public outrage, increasing impatience for real reform and making efforts to symbolically placate pro-reform constituencies harder. It also undermined the unquestioning trust and obedience of many Catholics that had been exploited by some to deflect allegations’.Footnote ³⁸ Similarly, reframing an issue of historical abuse as a present-day violation of human rights could offer a significant form of epistemic justice where it results in belief of survivors and responsibility for wrongdoing.Footnote ³⁹ However civil litigation can also remain a potential re-traumatising or marginalising process for victim-survivors.Footnote ⁴⁰ Research disagrees on whether there are sufficient therapeutic benefits to victim-survivors to overcome the potentially harmful or re-traumatising effects of engaging in litigation and the legal process.Footnote ⁴¹ Finally, cases involving Indigenous peoples can provide several instances of epistemic injustice where Indigenous forms of knowledge and identity are denied equal value or recognition in settler colonial legal systems.Footnote ⁴²

7.3.4 Accountability and Ontology

Finally, whether law condemns, condones, or is silent regarding historical-structural injustices will make a significant contribution to either reproducing harms in the present or meaningfully addressing the past. Chapter 2 demonstrated how colonisation, the transatlantic slave trade, or more recently, the process of the institutionalisation of the poor or of women and children were framed as either morally, legally, and religiously justified, or formed part of constituting the nation states that today are challenged to address their legacies of historical abuses. Child sexual abuse by priests, in contrast, was long historically prohibited, albeit with a highly defective system of penalisation and enforcement.

While prior investigations may hold historical legislation or governmental policy as morally or politically unacceptable in present day, separate legislative action would be required to criminalise such harms. Recognition of historical-structural injustice needs more than identifying individual perpetrators who violated pre-existing rules, it necessitates problematising historically accepted but now impugned standards. Several historical abuses were not aberrant violations of laws but instead were historically permitted or encouraged by law, reflecting an unjust baseline by contemporary standards.Footnote ⁴³ Mamdani distinguishes between violence that preserves the law and legal system, such as criminal law offences, and violence that makes the law, such as settler colonial violence or violence otherwise constitutive of the state: ‘A single-minded focus on identifying perpetrators leaves undisturbed the logic of institutions that make nation-building violence thinkable and possible’.Footnote ⁴⁴ As a result, such violence represents an ontological dimension of power.

Canon law also communicates a distinct set of values and world view. Kieran Tapsell describes clericalism as arising out of a theology that priests are ‘ontologically changed’, that is marked out by God through ordination as special people whose very nature has been changed and who are divinely destined to change the world.Footnote ⁴⁵ Byrnes suggests that the result is ‘preserving that indispensable church from scandal was perceived as the central obligation of their positions’.Footnote ⁴⁶ Nicholas Cafardi suggests that the Vatican remains pervasive in its use of a ‘bella figura’ (beautiful figure), that a good external appearance must be presented to the world.Footnote ⁴⁷

Specific forms of litigation also shape the presentation of historical abuses and contemporary responses to them. In civil liability, when the justifications for non-fault-based liability are interrogated, they create problematic narratives for legal responsibility and accountability regarding historical abuses: ‘If liability attaches irrespective of fault, it is no longer necessary for lawyers to probe into how the Church handled abuse cases, and whether it was guilty of negligence or worse’.Footnote ⁴⁸ For instance, Winter notes while vicarious liability cases ‘helped publicize the abuse endemic in Canada’s residential schools system, it was not a trial of that system itself’.Footnote ⁴⁹

As already noted, rights discourses and practices may serve as important sites for reimaging historical abuses in terms of victims’ rights and the duties of states to prevent and repair harms. However, early critical legal studies (CLS) scholarship suggested that rights litigation was part of a legal ideology that was compatible and the cause of the original oppression and injustice.Footnote ⁵⁰ In turn, such concerns were rejected by critical race scholars such as Patricia Williams and Kimberley Crenshaw. Williams asserted that while a CLS critique of rights as empty may be true for white communities, for black Americans, rights represented a site of black empowerment.Footnote ⁵¹ Similarly, Crenshaw argued that rights rhetoric had been a significant force in inspiring black communities to pursue radical reform.Footnote ⁵² For Seán Eudaily, ‘legal activism conceived as tactical resistance may lead to fundamental change in the epistemic, political, and subjective structures in which such practices are articulated’.Footnote ⁵³ While in some instances, rights may be viewed as compatible with existing forms of oppression, there may also remain potential for litigation to disrupt existing ontological orders and provide the basis for resistance and alternative conceptions of the past. As a result, rights litigation may be a site where national and religious myths are challenged, affirmed, or ignored.

7.3.5 Conclusion

This range of factors impact how law will address the initial number of allegations and instances of harm significantly. The criminal law truncates the continuities of harm across different forms and generations of historical abuse discussed in earlier chapters, focuses on allegations of breaching existing law within lived memory, and selects from them, subject to the evidential requirements of a fair trial. Civil law litigation may provide a basis for action against state or church institutions but may do so in a manner limited by the form of liability, the limitation regime, and the availability of suitable defendants, class actions, or affordable costs to victims. Canon law remains nebulous in its capacity to offer a victim-survivor-centred approach to addressing child sex abuse cases. Human rights law may offer the basis for empowerment for survivors and affected communities but, as explored below, will also be likely resisted in its implementation by governments. No single basis for litigation is therefore a panacea to addressing historical-structural injustices. Instead, in employing a range of litigation mechanisms, victim-survivors have demonstrated considerable resilience across the jurisdictions examined in the book in demanding accountability through litigation. Where such demands are not met, the entire enterprise of transitional justice may be undermined in its ability to address the past.

7.4.1 Ireland

Accountability for Irish historical abuses has focused almost exclusively on child sexual abuse. A 2002 documentary regarding clerical child sexual abuse in Dublin prompted a criminal investigation.Footnote ⁵⁴ The 2011 Murphy report considered that this investigation was ‘an effective, co-ordinated and comprehensive inquiry’.Footnote ⁵⁵ Between 1975 and 2014, there were 4,406 allegations of child sexual abuse by priests reported to church authorities and Gardai from across Ireland in non-residential settings. It resulted in ninety-five criminal convictions, based on a church compilation of figures.Footnote ⁵⁶ Only eleven criminal cases were forwarded to the Director of Public Prosecutions based on the Commission to Inquire into Child Abuse (CICA) report regarding abuse in child residential institutions.Footnote ⁵⁷

Several cases that proceeded to trial were ultimately unsuccessful on the grounds of a fair trial being impossible due to the delayed complaint.Footnote ⁵⁸ Sinéad Ring notes the approach of the Irish courts fostered ‘a simple narrative of the passive and traumatised victim paralysed by the domination of the abuser’ and precludes examination of how society kept victims silent for decades after the abuse.Footnote ⁵⁹ Support organisations for victim-survivors of child sexual abuse report that clients who engaged with criminal trials found the processes humiliating and re-traumatising.Footnote ⁶⁰ In addition to individual acts of child sex abuse, the Gardai considered charges for the offence ‘misprision of felony’, where a person who knew that a felony had been committed and concealed it from the authorities,Footnote ⁶¹ but no prosecutions arose for this offence.Footnote ⁶² Finally, there have been no recent criminal prosecutions related to Magdalene Laundries, mother and baby homes, or illegal adoptions.Footnote ⁶³

Colin Smith and April Duff identify several difficulties for victim-survivors of historical abuse in Irish civil litigation.Footnote ⁶⁴ As a smaller jurisdiction without the benefit of class actions, protective costs orders limiting potential financial cost to plaintiffs, or reform of Ireland’s restrictive statute of limitations, litigating historical abuse cases has proven highly problematic. Smith and Duff note a practice from state and religious defendants of ‘procedural delay in historic institutional-abuse cases [which] operates in favour of the defendants’.Footnote ⁶⁵ Despite a strong constitutional bill of rights, Ireland’s courts have not recognised violation of constitutional rights in the context of historical-structural abuses, likely owing to the procedural barriers restricting potential litigants. Enright and Ring conclude that the Irish state ‘has failed to reimagine or supplement frameworks of civil and criminal liability, leaving victim-survivors without adequate conceptual means to give public legal expression to their experiences or to establish new legal discourses of unashamed authority and credibility that might enable them to speak to the state without fear of sanction’.Footnote ⁶⁶

However, Ireland is unique in making use of multiple forms of international law and human rights law to address historical abuse. In 2011, the United Nations Committee against Torture criticised Ireland’s failure to address the Magdalene Laundries,Footnote ⁶⁷ leading to the establishment of an inquiry, discussed in Chapter 6. Similar efforts have been pursued regarding the issue of mother and baby homes in several United Nations human rights treaty body mechanisms.Footnote ⁶⁸

In addition, in O’Keeffe v Ireland, the European Court of Human Rights concluded that Ireland failed to protect Louise O’Keeffe from sexual abuse suffered as a child in an Irish National School and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.Footnote ⁶⁹ The court considered that when relinquishing control of the education of children to non-state church actors, Ireland should have been aware, given its inherent obligation to protect children, of potential risks to their safety if there was no appropriate framework of protection.Footnote ⁷⁰ The decision represents a site of epistemic justice, where the Strasbourg court accepts the reformulation of the case that was originally argued in tort law in Irish courts, as a violation of human rights. However, its impact in Ireland has been circumscribed significantly by the state’s implementation of the judgment through an ex gratia redress scheme that interprets the judgment narrowly.Footnote ⁷¹

In 1996, 2005, and 2009, the Irish Bishops’ conference adopted a new set of canon law guidelines, which provided for all allegations of child abuse to be taken to the civil authorities.Footnote ⁷² However, these documents did not receive official recognition from the Vatican and remained without standing in canon law.Footnote ⁷³ The Murphy report stated that historically the Archdiocese of Dublin ‘did not implement its own canon law rules and did its best to avoid any application of the law of the State’.Footnote ⁷⁴ Similarly, the 2011 Cloyne report concluded that the church had failed to carry out proper canonical investigations or to report all complaints to the Gardai or health authorities.Footnote ⁷⁵ In response to the report, Taoiseach Enda Kenny emphasised in the Irish parliament that the Cloyne report demonstrated the attempts by the Catholic Church and the Holy See to frustrate a government inquiry in the recent past.Footnote ⁷⁶

7.4.2 Australia

Australian jurisdictions have long legislated against the sexual abuse of children.Footnote ⁷⁷ The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) criminal justice report concluded that between 1950 and 2010, a total of 1,880 alleged perpetrators (diocesan and religious priests, religious brothers, religious sisters, lay employees, or volunteers) were identified in claims of child sexual abuse.Footnote ⁷⁸ The RCIRCSA final report concluded that children were allegedly abused in over 4,000 institutions and made 2,562 referrals to the police,Footnote ⁷⁹ leading to at least 127 prosecutions to date.Footnote ⁸⁰ The RCIRCSA also criticised the criminal trial process as unfair and traumatic for victims of child sexual abuse.Footnote ⁸¹ The common law offence of misprision of felony has been abolished in all Australian jurisdictions, but it has been replaced with a series of offences regarding the concealment of or failure to prevent serious offences in several jurisdictions,Footnote ⁸² with one recent prosecution of an archbishop for failure to report abuse overturned on appeal.Footnote ⁸³

The RCIRCSA noted that up to the 1990s, Catholic authorities did not engage with canon law processes or trials for allegations of child sexual abuse.Footnote ⁸⁴ Although national responses (Towards Healing and the Melbourne Response) were established in the 1990s, the RCIRCSA concluded that processes ‘to dismiss priests and religious appear to have been rarely used during the 1990s and early 2000s’.Footnote ⁸⁵ The RCIRCSA concluded that the canon law system ‘contributed to the failure of the Catholic Church to provide an effective and timely response to alleged perpetrators and perpetrators’.Footnote ⁸⁶

Several other areas of historical abuse have not resulted in any criminal accountability, such as the Stolen Generations, genocide against Indigenous peoples, the child migration process, or Aboriginal stolen wages, many of which operated under legislative authorisation or state complicity.

In Australia, civil liability has offered some limited success in addressing historical-structural injustices, particularly around the land rights of Aboriginal peoples. Early attempts to establish a right to traditional customary lands were unsuccessful.Footnote ⁸⁷ However, in Mabo & Ors v Queensland (No 2), the Australian High Court concluded that the Meriam people possessed native title over their traditional lands, defined as the rights and interests over land or waters that exist according to the traditional laws and customs of Indigenous inhabitants of land.Footnote ⁸⁸ In rejecting the doctrine of terra nullius, the court concluded that native title exists when an Indigenous community could show there is a continuing association with the land in circumstances where no explicit act of the Crown has extinguished title.Footnote ⁸⁹ Ann Curthoys et al note: ‘The notion of terra nullius had always been deeply offensive to Indigenous people. The symbolic overturning of the doctrine was an important legal, political and psychological achievement. However, the Mabo case replaced the legal fiction of terra nullius with another legal fiction that Australia was ‘settled’, a legal narrative that also conflicts with the dominant Indigenous perspectives of Australian colonial history’.Footnote ⁹⁰

As in the US Supreme Court decision of Brown, the radical nature of the decision led to a political and popular backlash.Footnote ⁹¹ Short notes that the mining industry was particularly threatened by the case, and lobbied the government, concerned that some existing title could be invalid in the absence of compensation or that future purchases would involve greater control by Aboriginal peoples.Footnote ⁹² The campaign eventually led the government to legislate to provide ‘certainty’ for the commercial lobby by passing the Native Title Act 1993, which established a Native Title Tribunal for assessing native title claims.

Several subsequent decisions used historical documentation from British settlers to deny the claims of Indigenous peoples, which were based instead on oral testimony from Indigenous peoples corroborated with archaeological, anthropological, genealogical, and linguistic evidence,Footnote ⁹³ creating a very high evidential threshold for First Nations peoples to assert land rights.Footnote ⁹⁴ A people group had to show they formed a society, substantially the same as that which existed at sovereignty and had continued to observe a system of laws and customs which were, again, substantially unaltered from those observed by their ancestors at sovereignty.Footnote ⁹⁵ As a result, native title litigation forms a further site of epistemic injustice for Indigenous peoples, with expansions of rights often counteracted. In Wik, the High Court held that native title could coexist with pastoral leases, which represented about 40 per cent of the total area of Australia.Footnote ⁹⁶ In response, the Australian government passed the Native Title Amendment Act in 1998, which complicated the native title claims process for litigants. Native title remains deeply contested in Australia. Jon Altman concludes: ‘If hypothetically all native title claims were successful, as much as 70 per cent of Australia could be under some form of Indigenous title and as much as 40 per cent of the Indigenous population could be resident on these lands’.Footnote ⁹⁷

In addition to cases involving native title, attempts to argue that Australia was responsible for genocide against First Nations peoples have also proven unsuccessful,Footnote ⁹⁸ particularly as Australia had not ratified the Genocide Convention retrospectively. These cases contrast with the findings of the Bringing Them Home report, which noted the potential for child removal to constitute genocide.Footnote ⁹⁹ Curthoys et al note these cases demonstrate ‘the challenges that Indigenous peoples face when using the law strategically to gain recognition of past wrongs’.Footnote ¹⁰⁰ In subsequent cases,Footnote ¹⁰¹ Indigenous applicants were denied in their attempts to litigate regarding the Stolen Generations by an approach to the historical record that relied on ‘the standards of the time’ to judge the policy of child removal for the Stolen Generation. By adopting this approach, the court denied the applicants the ability to use oral evidence to reinterpret or reframe historical documentation in light of their lived experience,Footnote ¹⁰² confirming a narrow approach to epistemic justice. The result is law remains unable to ‘escape its complicity in the colonial project, and its ability to write out, again and again, the experiences of Indigenous peoples’.Footnote ¹⁰³ Buti writes that these decisions ‘brought into relief the multiple legal and evidential obstacles involved in pursuing litigation to redress the alleged wrongs of past Aboriginal child separations or removals’.Footnote ¹⁰⁴

In Trevorrow v South Australia [No 5], the applicant was fostered out without the consent of his parents by the Aborigines Protection Board despite their requests for the child’s return.Footnote ¹⁰⁵ Critically, the applicant’s experiences were all documented in departmental medical records and could be interrogated by testimony from relevant doctors. Gray J concluded that the state was in breach of the limits of relevant legislation at the time, which did not give it the power to foster an Aboriginal child without parental consent,Footnote ¹⁰⁶ a decision affirmed on appeal.Footnote ¹⁰⁷ This finding has value for other members of the Stolen Generations interested in litigating their removals but would likely depend on the existence of similar documentary evidence. With these limited successes, Curthoys et al note: ‘there has been considerable disillusionment among many litigants with the law as a form of redress’.Footnote ¹⁰⁸

Finally, no national bill of rights or regional human rights mechanisms are available in Australia, which impacts on victim-survivors’ capacity to use human rights to examine historical abuse.Footnote ¹⁰⁹ The absence of a strong human rights framework within Australian law has meant there is little to temper or fetter the exercise of power by the federal government in relation to policy on Indigenous people,Footnote ¹¹⁰ despite instances in which the state’s treatment of Aboriginal peoples has been criticised.Footnote ¹¹¹

7.4.3 Canada

Despite the prosecution of child sex abuse being a historical legal possibility since 1892, the TRC report notes that contemporary reporting of abuse to government or church authorities arising from residential schools did not often lead to prosecution or conviction.Footnote ¹¹² As in other jurisdictions, several other inquiries and issues of historical abuse have not led to significant or sustained prosecutions, such as illegal adoptions, or enforced disappearances of Aboriginal women.

Changes in Canadian law between 1991 and 2003 for class actions led to a situation where 18,000 outstanding civil lawsuits related to abuse in residential schools would take fifty-three years to conclude at a cost of $2.3 billion, not including the value of any compensation awarded to survivors.Footnote ¹¹³ The pressure of such litigation led to negotiations between Aboriginal organisations, religious organisations, and the federal government that would lead to the IRSSA. Regarding the Sixties Scoop process of transfer of Indigenous children into foster homes and adoption by white families, class-action litigation began in 2011, and in 2017 a $800 million settlement was announced based on a ruling that the Canadian government was liable for the harms caused by this process.Footnote ¹¹⁴ However, Bruce Feldthusen noted that the adversarial nature of civil litigation necessitated aggressive cross-examination of victim-survivors with the potential for re-traumatisation.Footnote ¹¹⁵ In addition, the length of proceedings, limited testimony from victim-survivors, and the complexity of potential liability of both church and/or state institutions created further difficulties for pursuing accountability.Footnote ¹¹⁶ In particular, ‘a recognition of “power disparities and the special vulnerability of children” were mostly “absent from the judgments of most members of the High Court”’.Footnote ¹¹⁷

In Canada, efforts to address clerical sex abuse began in 1987 in response to the Mount Cashel orphanage crisis.Footnote ¹¹⁸ Several subsequent reports were commissioned to address the issueFootnote ¹¹⁹ but have not produced national figures on the number of allegations or canon trials. A Committee for Responsible Ministry and the Protection of Minors and Vulnerable Adults was established in 2018 as a consultative body established within the Canadian Conference of Catholic Bishops (CCCB). Their 2018 report notes that each Canadian province now has mandatory reporting laws for child abuse.Footnote ¹²⁰ However, the document suggests a preference for out-of-court settlements and mediation as a form of accountability.Footnote ¹²¹ As in other jurisdictions, such an approach may spare victim-survivors interrogating through the process of a court trial but also hides the scale and extent of the problem from public scrutiny and disables accountability for the systemic nature of the abuse.

There remains a significant practice of land disputes between Indigenous nations and Canada that reflects some of the epistemic and ontological injustices in Australia. In Calder v British Columbia in 1973, while the Nisga’a people were unsuccessful in seeking a declaration of their Aboriginal title to ancestral lands in British Columbia,Footnote ¹²² the court recognised the existence of Aboriginal rights in Canadian law before the Royal Proclamation in 1763. The decision led to a change in government policy on native land claims and ultimately an amendment to the Canadian Constitution in 1982 to recognise and affirm ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’ under section 35(1). Borrows suggests: ‘In the moment, the constitution appeared to present a path to genuine reform. Then the idea of originalist history re-emerged and became the touchstone for proving Aboriginal rights’.Footnote ¹²³ In 1996, the Supreme Court ruled in R. v Van der Peet that Section 35(1) offered protection of Aboriginal rights but only for those practices, customs, and traditions that were ‘integral to the distinctive culture’ of particular groups prior to European contact.Footnote ¹²⁴ Borrows notes the Supreme Court placed a search for ‘original’ understandings of Aboriginal rights as central, narrowing the scope of evolving knowledge, power, and epistemic justice.Footnote ¹²⁵ In Delgamuukw v British Columbia, the Supreme Court stated the test to determine what constitutes a justified infringement on Aboriginal rights and title, and in doing so, placed the onus on Indigenous nations to prove occupation prior to sovereignty and subsequent continuous occupation,Footnote ¹²⁶ as ‘aboriginal title crystallized at the time sovereignty was asserted’.Footnote ¹²⁷

In Tsilhqot’in Nation v British Columbia, the Canadian Supreme Court found that the Tsilhqot’in Nation was entitled to a declaration of Aboriginal title in their traditional territories,Footnote ¹²⁸ due to evidence of sufficient and exclusive historical occupation at the time of Canadian sovereignty. The Court in Tsilhqot’ in stated that the doctrine of terra nullius never applied in Canada.Footnote ¹²⁹ Borrows suggests that while a significant decision and victory for the Tsilhqot’in Nation, the case represents the continuation of a problematic treatment of Indigenous history in Canadian law: ‘This test requires proof of what was integral to distinctive Aboriginal societies upon contact. If a practice developed after contact it cannot be protected as an Aboriginal right within Canada’s Constitution.’Footnote ¹³⁰ Thus, courts’ use of history is providing a significant structural constraint on Indigenous rights in Canada.Footnote ¹³¹

Canada has also addressed historical-structural injustices through a human rights lens. In 2007, the First Nations child agency, the Assembly of First Nations, alleged that state-run child welfare services provided to First Nations children and families on reserve were flawed, inequitable, and discriminatory on an ongoing basis.Footnote ¹³² In 2016, the Canadian Human Rights Tribunal found that Canada was racially discriminating against First Nations children. The Canadian government is currently seeking judicial review of this decision, which may cost between $2 and 15 billion to implement. Rauna Kuokkanen argued that even if successful, the discriminatory treatment of First Nations peoples must be addressed through examining other relations of domination, including heteropatriarchal gender relations, ‘which often displace Indigenous women, and consequently, their children from their communities’.Footnote ¹³³

In terms of employing international human rights, Kuokkanen notes: ‘Traditionally, there has been no strong Indigenous engagement with international human rights instruments at the national level, although this has somewhat changed with the adoption of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).’Footnote ¹³⁴ A notable exception is Lovelace v Canada, where the United Nations Human Rights Committee concluded that Canada had violated the International Covenant on Civil and Political Rights as the Indian Act violated the cultural and language rights of Indigenous woman Sandra Lovelace.Footnote ¹³⁵ This led to an amendment of the Indian Act aimed at removing gender-based discrimination but denied Indigenous women the means to transfer their Indigenous status to their children. Subsequent cases have attempted to overcome this but have only removed ‘the specific discrimination identified by each case, rather than addressing the foundational sex-based hierarchy in the status provisions’.Footnote ¹³⁶

In 2021, on National Indigenous People’s Day, Canada formally adopted An Act respecting the UNDRIP. The Act provides that the Canadian government must ‘in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration’. In particular, the Act provides that relevant government ministers must prepare and implement action plans to achieve the objectives of the Declaration. While this may offer the basis for advancing the potential of UNDRIP provisions, Section 2 of the Act nonetheless provides that ‘[t]his Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them’. It remains to be seen whether this Act will make a material difference to the Canadian government’s treatment of First Nations peoples. Although the Canadian government rhetoric recognises the need for ‘transformative change’ with Indigenous peoples, Rosemary Nagy notes its practices continue to cause concern.Footnote ¹³⁷ Rights have proven problematic and limited as a mechanism to achieve the empowerment of First Nations peoples, rights discourse and practice remains one element of addressing historical-structural injustices but one that risks framing First Nations interests, such as self-determination, as something to be granted by the state, affirming existing settler colonial structures.Footnote ¹³⁸

7.4.4 United Kingdom

English criminal law has long prohibited offences relevant to historical abuse, such as rape, child cruelty, or assault or neglect of a child in the care of another.Footnote ¹³⁹ The UK demonstrates the potential and risks of criminal prosecution for historical sexual violence. Following a television documentary alleging abuse by English celebrity Jimmy Savile, Operation Yewtree was established as a police investigation into child sexual abuse led by the Metropolitan Police Services (MPS). A 2013 MPS report concluded that Saville, deceased, had committed at least 450 acts of child sexual abuse.Footnote ¹⁴⁰ The operation led to nineteen arrests of other high-profile public figures and to seven convictions. More broadly, a ‘Yewtree effect’ was reflected in part in a 124 per cent increase in the reporting of rape since 2012.Footnote ¹⁴¹ In response, MPS Operation Hydrant was established in 2014 to oversee and coordinate all ‘non-recent’ investigations concerning persons of public prominence and those historical institutional sexual offences. Figures in early 2020 indicate that ‘4,024 allegations led to guilty verdicts at court after police investigations since 2014 into decades-old child sex offences’.Footnote ¹⁴² Since Hydrant’s launch, 7,000 suspects have been identified, with 11,346 allegations of attacks received from 9,343 victims, all concerning sexual abuse of children. Such figures relate to both institutional and non-institutional contexts of historical child sexual abuse. These figures have encouraged some victim-survivor representatives.Footnote ¹⁴³ Other forms of historical abuse, such as institutionalisation per se, child migration, and illegal adoption, have not formed the object of criminal prosecutions but have been pursued through civil litigation.

The experience of victim-survivors in UK civil litigation continues to risk distress or re-traumatisation. The Independent Inquiry into Child Sexual Abuse (IICSA) report on accountability and reparations noted that for many victim-survivors ‘the litigation process was emotionally challenging and that it compounded the trauma they had already suffered as children. They also felt dissatisfied with the outcome, either because their claims had failed or because they had succeeded, usually by accepting a settlement offer, but they had never received any explanation or apology for what had happened to them and did not feel that justice had been done’.Footnote ¹⁴⁴

The IICSA report on the safeguarding within the Roman Catholic Church confirms that in the church’s historical responses to child sex abuse allegations, ‘resistance to external intervention was widespread’.Footnote ¹⁴⁵ The Nolan report in 2001 recommended the need for a single set of rules to address such allegations across the Catholic Church in England and Wales, leading to the eventual establishment of independent child commissions and child protection offices. The 2007 Cumberlege review of this process found the church had made some progress regarding child protection, though noted the limited change for religious orders compared to dioceses.Footnote ¹⁴⁶ The IICSA report concluded: ‘The absence of published data about the number of priests laicised for child sexual abuse offences (whether in crimes in civil or canonical law) diminishes confidence in the Church’s handling of such cases.’Footnote ¹⁴⁷

Beyond individual criminal and civil cases, the 2012 case of Mutua & Ors v Foreign and Commonwealth Office represented the first time that victims of colonialism were given the right to claim compensation from the British government. The claims arose from the systematic abuse and torture inflicted on the Kenyan people by British colonial officials and Kenyan ‘home guards’ under British command, including castration, systematic beatings, rape, and sexual assault with bottles; all of which were known about and sanctioned at the top levels of the British government.Footnote ¹⁴⁸ Justice McCombe noted that a fair trial was possible due to the existence of extensive and meticulous colonial records that had been found in discovery.Footnote ¹⁴⁹ The case extended principles of vicarious liability in tort law to the joint activities of British government and colonial administrations.Footnote ¹⁵⁰ In 2013, the British government apologised and agreed to pay £19.9 million in compensation to over 5,000 claimants who had suffered abuse.Footnote ¹⁵¹ Balint notes that the settlement ‘was couched in terms of being important for future economic and political relations, rather than as an important acknowledgement of British responsibility for these harms as integral to Empire’.Footnote ¹⁵² Balint suggested the case offered the potential for a new constitutive moment ‘ushering in a new legal order in which colonial harms can be heard and redressed as well as changing the public and political landscape of how the British Empire is collectively remembered and discussed’.Footnote ¹⁵³ However, she concludes that ‘the absence of a broader public appreciation of the structural nature of these harms – as constitutive of Empire, not exceptional to it – means that the claims brought and heard in their particularity will fail to have a more extensive constitutive impact’.Footnote ¹⁵⁴ The potential impact of the case has been circumscribed by subsequent decisions and legislation.

In Kimathi & Ors v The Foreign and Commonwealth Office, in 2018, Stewart J dismissed similar group litigation, where over 40,000 Kenyans brought claims for damages against the UK Foreign & Commonwealth Office (FCO), alleging abuse in Kenya during the 1950s and early 1960s.Footnote ¹⁵⁵ Stewart J held the claim was barred by the statute of limitations and that it would not be equitable to extend time in the claimant’s favour due to the severe effects of the passage of time on the defendant’s ability to defend the claim.Footnote ¹⁵⁶ The judgment emphasised that civil litigation is distinct from a public inquiry and that ‘the claims must stand or fall on established principles of civil litigation’.Footnote ¹⁵⁷

In Keyu v Secretary of State for Foreign and Commonwealth Affairs, the UK Supreme Court was asked whether the FCO should be required to hold a public inquiry into allegations of British soldiers shooting and killing twenty-four unarmed civilians in 1948 in Malaysia.Footnote ¹⁵⁸ The UK government had rejected the claim for a public inquiry. The Court rejected the claim to compel the government to establish an inquiry, concluding that a historical claim that predates the European Convention on Human Rights needed a supervening event to create an obligation under the Convention to create an obligation to investigate.

Although these cases represent attempts to address the legacy of the British Empire through litigation, the future capacity of litigants to build on these approaches has been undermined by government legislation. Schedule 2 of the Overseas Operations (Service Personnel and Veterans) Act 2021 restricts a court’s discretion, under the Limitation Act 1980, to disapply time limits for civil actions in respect of personal injuries or death which relate to overseas operations of the armed forces. The minister John Mercer in introducing the bill spoke of the need ‘to lance the boil of lawfare and to protect our people from the relentless cycle of reinvestigations against our armed forces’.Footnote ¹⁵⁹

7.4.5 United States

In the United States, there has been a significant focus on the criminal prosecution of clerical child sexual abuse but little systemic efforts to prosecute other forms of sexual abuse or non-sexual historical abuses. Attempts to hold priests accountable for child sex abuse began in 1984, in Louisiana,Footnote ¹⁶⁰ but it would not be until 2002 and revelations of clerical abuse and its cover-up in Boston that the issue garnered national attention and forced the church to attempt to change its approach to dealing with abuse allegations. Formicola suggests that the successive investigations and litigation challenged the primacy of canon law and created expectations of legal cooperation from church institutions,Footnote ¹⁶¹ with secular governments less deferential to churches and as a result more powerful in how the past is addressed.Footnote ¹⁶² Most recent figures published by the United States Conference of Catholic Bishops (USCCB) indicate that 7,002 priests ‘not implausibly’ and ‘credibly’ were accused of sexually abusing minors in the period 1950 through 30 June 2018.Footnote ¹⁶³ However, criminal convictions are not recorded in USCCB annual reports. Figures in the United States may continue to underestimate the extent of abuse as they rely on survey responses filled out by church officials without independent verification and are based on church personnel files, which may be incomplete or have removed incriminating material from personnel files to secret archives.Footnote ¹⁶⁴ In addition, the US-based Survivors Network of those Abused by Priests (SNAP) unsuccessfully petitioned the International Criminal Court (ICC) alleging that Vatican officials had superior responsibility for consciously disregarding information that showed subordinates were committing or about to commit sexual violence. The request was rejected on the basis of lack of jurisdiction and because some of the allegations concerned events prior to the court’s founding in 2002.Footnote ¹⁶⁵ Similarly attempts to sue the Holy See in US court directly in tort law were also unsuccessful.Footnote ¹⁶⁶

Criminal prosecutions in the United States largely fail to address other areas of historical abuse involving state apparatus, involving racially motivated violence against African Americans, systemic assessment of police brutality, or violence against Native Americans. According to Manfred Berg, of all lynchings committed after 1900, only 1 per cent resulted in a perpetrator being convicted of a criminal offence of any kind.Footnote ¹⁶⁷ In contrast, litigation has formed a key part of seeking to address the legacy of slavery, Jim Crow laws, and racial discrimination. Early decisions of the US Supreme Court affirmed both the Doctrine of Discovery and white supremacy.Footnote ¹⁶⁸ However, the litigation strategies addressing injustice against Native peoples and black Americans are significant in their differences. In Brown v Board of Education in 1954, the applicant successfully argued that the principle of ‘separate but equal’ was unconstitutional, thus prohibiting the racial segregation of public schools.Footnote ¹⁶⁹ Brown remains the canonical example of how the US legal system addresses the nation’s legacy of past racial violenceFootnote ¹⁷⁰ but perhaps remains of limited ontological value. Joshi notes that while significant for demonstrating that racially separate public schools are ‘inherently unequal’, the decision is also notable for its failure to mention white supremacy and the degrading treatment of black children.Footnote ¹⁷¹ Angela Onwuachi-Willig suggests that such an approach left intact and unchallenged pre-existing notions of white superiority and black inferiority pervasive in American society.Footnote ¹⁷²

The potentially radical nature of the decision was limited by the Court’s own approach to its implementation. In Brown II the Supreme Court turned over the implementation of school desegregation to local judges, who were to act not immediately but with ‘all deliberate speed’.Footnote ¹⁷³ After Brown, segregation persisted significantly for ten further years and the Civil Rights mass movement was required to realise its potential.Footnote ¹⁷⁴ This mass movement and legal changes in turn led to retrenchment and resistance to racial integration,Footnote ¹⁷⁵ ultimately finding expression in the Supreme Court with the successive appointment of conservative judges throughout the end of the twentieth century, who largely deny continuities of historical injustices to present inequalities.Footnote ¹⁷⁶

Other significant victories have been achieved through litigation, such as prohibiting voter discrimination,Footnote ¹⁷⁷ but have equally been undermined by subsequent retrenchment in the Supreme Court.Footnote ¹⁷⁸ Joshi suggests: ‘In trying to disassociate the United States of today from its antebellum and Jim Crow histories, the Court denounced blatant forms of racism from the past while discounting the racism present today and denying continuities between past and present racism’, and emphasises the Court’s preoccupation with an end point to racial transition at which any exceptional measures would no longer be justified.Footnote ¹⁷⁹ As a result, the most high-profile forms of litigation to address historical-structural injustices, such as Brown, are limited both by the structure of litigation requiring subsequent government action and by the relatively narrow framing adopted by the Courts in relation to the nature of the injustices addressed.

There have been several cases litigating the issue of reparations for slavery, but these have proven largely unsuccessful due to structural barriers in litigation, in particular the doctrine of sovereign immunity, that a political subject cannot sue the government without its consent, has barred two attempts.Footnote ¹⁸⁰ In addition, descendants of slaves’ claims for reparations have been rejected as courts concluded that the descendants had not been directly harmed themselves.Footnote ¹⁸¹ Emma Coleman Jordan notes the limited potential to achieve reparations for slavery: ‘The litigation-for-reparations strategy suffers from the old problem of using the master’s tools to tear down the master’s house.’Footnote ¹⁸²

The use of civil and constitutional rights has also been limited and risky for Native peoples. In the 1950s, Native claims were limited to those under the Indian Claims Commission, which allowed for the recovery of money but not return of Native lands,Footnote ¹⁸³ and is discussed further as a limited form of reparation in Chapter 8. By the 1960s, Native tribes began to pursue the advancement of their interests through litigation through the development of the Native bar of attorneys.Footnote ¹⁸⁴ This strategy led to a trend of the recognition of native rights to title in the 1970s and 1980s, recognising that federal Indian law was based on a government-to-government relationship between tribes and the United States.Footnote ¹⁸⁵ Wilkinson notes that these successes became more limited in the 1980s and 1990s, similar to retrenchment against addressing racial injustice, with Justices Rehnquist, Scalia, and Thomas refusing to take seriously existing Native treaties.Footnote ¹⁸⁶ Kirsten Matoy Carlson notes that at the US Supreme Court, Indian nations lose over 75 per cent of the cases litigated.Footnote ¹⁸⁷ This rate suggests that efforts of Native tribes to assert their rights and power and address past injustices may be better pursued through Congressional legislation, through both general and tribal-specific legislation.Footnote ¹⁸⁸

The Court’s approach to addressing Native sovereignty and jurisdiction has fluctuated in its effects as a form of epistemic injustice. In Oliphant, the Supreme Court declined to acknowledge criminal jurisdiction for Indian tribal courts over non-Indians.Footnote ¹⁸⁹ In doing so, the Court concluded that the relevant treaty text was silent on this issue and as a result the Court could examine ‘the common notions of the day’ and ‘the assumptions of those who drafted [the texts]’ to resolve the issue.Footnote ¹⁹⁰ Blackhawk is critical of this approach that remained rooted in a dominant ideology that sought to restrict the textual recognition and impact of Native sovereignty.Footnote ¹⁹¹ In contrast, in Solem v Bartlett, the Supreme Court concluded that three principles would evaluate the existence of any Congressional intent to diminish the borders of a Native reservation.Footnote ¹⁹² First, the Court affirmed that an explicit provision from Congress is required to diminish the boundary of a reservation. Second, the language must specifically state the intent to diminish a reservation or make a blatant statement from which the intent to diminish is presumed. Third, the Court made clear that historical evidence of intent to disestablish the reservation must be ‘unequivocal’ in order to be dispositive.Footnote ¹⁹³ Such an approach raised the burden to displace existing reservations and Native borders. Maggie Blackhawk suggests that rights-based frameworks, such as that in Brown, have been used as a tool of settler colonialism against Native peoples. Instead, recognition of tribal sovereignty has benefited Native peoples as a recognition of power, not rights.Footnote ¹⁹⁴ The potential of Native litigation in the United States thus remains predicated on recognition of Native sovereignty, not individual or collective rights granted by the state. Such litigation has the potential to redistribute ontological power, affirming the shared sovereignty and power on the territory of the United States/Turtle Island.

A recent Supreme Court decision illustrates the potential of an approach focused on power, rather than rights for Native peoples. In 2020 in McGirt v Oklahoma, the Supreme Court held that ‘three million acres and most of the city of Tulsa, Oklahoma’ was recognised by the United States as within reservation lands of the Muscogee (Creek) Nation, potentially leading to one-third to one-half of Oklahoma being part of a reservation.Footnote ¹⁹⁵ In McGirt, the United States and the Muscogee (Creek) Nation had agreed on the borders of the reservation in a treaty that recognised Native sovereignty. The Supreme Court held that the text of the treaty would determine the outcome and that subsequent practices aiming to usurp sovereignty had not changed or made law. It notably stated: ‘Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right’.Footnote ¹⁹⁶ Such an approach affirms the potential for litigation to serve as a mechanism to address historical-structural injustice directly, providing measures of truth and reparation through the recognition of native title.

In contrast, Blackhawk suggests that the dissents by Justices Roberts, Alito, Kavanaugh, and Thomas are notable for their attempts to perpetuate national myths regarding American western frontier expansion, such as manifest destiny. The dissent’s approach would shift the epistemic power away from a textual analysis that emphasised Native sovereignty and allow a contextual approach that would empower the court to find sufficient Congressional intent to diminish the borders of the reservation in the treaty.Footnote ¹⁹⁷ In doing so, the dissent would have made legal an infringement of Native sovereignty that was non-consensual and violent.Footnote ¹⁹⁸ The broader impact of the decision remains to be seen, with the Court noting that delay, laches, and other doctrines of civil litigation may bar Native nations from exercising power and jurisdiction.Footnote ¹⁹⁹ Blackhawk argues that generations of Native advocacy have sought to emphasise the language of sovereignty, power, and conquest into law, ‘thereby making the experience of Native people legible to formal lawmaking institutions’.Footnote ²⁰⁰ Such an approach can enable advocates ‘to fracture the law in order to lower the barriers to reform’ as a means of recognising and remedying historical-structural injustices.Footnote ²⁰¹