Transcript Slide 1

An Overview of the TRC
Mandate
Brad Morse, Dean of Law
University of Ottawa
Faculty of Law
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Introduction
• Brief Overview of:
– Indian Residential Schools (IRS) – The Vision
– IRS: The Reality
– The Settlement Agreement & its key terms
– The Mandate of the TRC
– The National Research Centre
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Indian Residential Schools (IRS) – The Vision
Some people have suggested that IRS, which also captured some Inuit and Métis
children, were created from good intentions to share European education and
technology believed to be essential for survival in the 19th and 20th century
economies.
Governments saw IRS as an effective means of killing off traditional Indigenous
values for European ones. Removing children from their homes & communities to
isolate them in distant schools was intended to produce assimilated members of
the dominant society, unconnected to their territories, families and traditions.
Catholic, Anglican, Presbyterian and United Churches saw IRS as an ideal method
to Christianize.
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Location of Residential Schools
1857 - Gradual Civilization Act passed to assimilate Indians.
1867 - Canada became semi-independent
1868 – Federal law used to define & affect lives of Indians
1870-1910 - Assimilation of Aboriginal children = clear objective
1920 - Compulsory attendance for all children
ages 7-15 years. Aboriginal children seized by
priests, Indian agents and police officers.
1931 - 80 residential schools operating in Canada.
1948 –72 IRS with 9, 368 students.
1979 –12 IRS with1,899 students.
1996 - Last federally funded IRS closes
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Residential Schools – The Reality
•Reality of IRS for over 150,000 students bore little
resemblance to values of higher or even basic education
promised with few learn marketable skills while lose traditional
knowledge
•Schools were understaffed and teachers under-qualified
•Food shortages left students weakened & susceptible to
disease, such as tuberculosis
•Bryce Report of 1907 reported death rate in IRS to be at least
24% - possibly as high as 42%
•Neglect and violence were staples within IRS; punishments
frequent and severe, including lashes to the face and the forced
feeding of spoiled meat
•Incidences of attempted escapes and suicide were not
uncommon; unknown numbers died from exposure when ran
away; results for many others unknown; graves unmarked
•Claims of physical and sexual abuse within residential schools
characterized 90% of individual court actions filed against the
churches and government
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Criminal Cases
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R. v. Frappier
One of 1st cases against IRS employee; Claude
Frappier was sentenced to 5 years in prison
after pleading guilty to 13 counts of indecent
assault against boys aged 8 to 11 years.
R. v. O’Connor
Hubert O’Conneo, a Catholic priest and
principal of Cariboo Indian Residential School,
was convicted of one count of rape and one
count of indecent assault in 1996.
A healing circle was eventually established in
which 38 people participated and at the end
the now Bishop O’Conner apologized to his
victims.
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R. v. Maczynski
A former supervisor, Maczynski, was convicted
on 29 of 30 counts of gross indecency,
indecent assault and buggery offences for
which he received a total of 117.5 years.
He exhibited no remorse and understanding of
the horrific nature of his offences
R. v. Leroux
In 1998, Leroux, a former supervisor, was
sentenced to 10 years imprisonment for
various sexual offences committed against 14
young men in their teens.
Leroux did admit what he had done was wrong
and did not try to shift responsibility to the
victims.
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Civil Cases
By March 2001, over 7,200
individuals had filed civil suits
vs. CDN government
In 1999, a person known as
F.S.M. successfully sued
Anglican Church & CDN
Government for negligence,
breach of fiduciary duty and
vicarious liability.
Court held Federal Government
& Anglican Church both liable
and shared liability at 40% &
60% respectively.
Blackwater case = breakthrough.
7 years after trial, Supreme Court
of Canada held United Church
and CDN Government vicariously
liable for sex assaults -75%
Federal liability and 25% to the
United Church
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Criminal Proceedings and Civil Litigation: An
Unsatisfactory Process
RCAP Report of 1996 recommended :
• The commissioning of a public inquiry
• The issuing of apologies by those responsible
• Compensation and treatment
• The establishment and funding of a repository of records related to residential
schools
Federal Government produced Gathering Strength: Canada’s Aboriginal Action Plan in
1998. The Plan articulated a four-fold approach to address Indian Residential
School issues:
• An expression of regret - but no full apology
• The creation of the Aboriginal Healing Foundation with $325 m endowment
• New alternative strategies to litigation
• The establishment of an alternative dispute resolution framework.
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IRS Settlement Agreement - Process
• Hon. Frank Iacobucci appointed by then Prime Minister Paul Martin as
federal representative to seek a settlement triggered by Ontario Court of
Appeal class action certification in 2004.
• An Agreement in Principle (AIP) reached in November 2005
• Newly elected Harper government reaffirmed the AIP
• In May 2006, IRS Settlement Agreement (IRSSA) signed by CDN
Government, Assembly of First Nations, regional Inuit representatives, three
Protestant churches and 44 Roman Catholic dioceses & religious orders along
with the many lawyers on behalf of thousands of individual clients.
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Indian Residential Schools Settlement Agreement
IRSSA = out-of-court settlement representing consensus reached
among Canada, legal counsel for former students, Churches,
Assembly of First Nations and other Aboriginal organizations.
IRSSA = largest class action settlement in Canadian history;
approved by all parties May 10, 2006. Implementation began
on 19 September 2007 after opt-out vote finished.
IRSSA includes:
• Common Experience Payment (CEP) to all eligible former students who
resided at a recognized Indian Residential School
• Independent Assessment Process (IAP) for claims of sexual and serious
physical abuse
• Measures to support healing such as IRS Resolution Health Support
Program and a further endowment to the Aboriginal Healing Foundation.
• National apology by Prime Minister
• Truth and Reconciliation Commission
• National and local Commemoration Activities
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Implementation of the Settlement to Date
• Over CDN $1 billion distributed to date to survivors under CEP
component of the Settlement Agreement.
• The missing - but essential - element of the Agreement, a formal
statement of apology on behalf of all non-Indigenous
Canadians by the Prime Minister, was fulfilled on 11 June 2008.
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TRC Mandate
Schedule N of IRSSA establishes TRC with 5 year term of 3
Commissioners with staff, Regional Liaisons and assistance of
the Indian Residential School Survivor Committee to:
1. Facilitate the gathering of the ‘Truth’ through Individual StatementTaking/Truth Sharing by former students, their families and communities
as well as from those involved in the schools
2. Support the holding of 7 national events and many community events
across the country to contribute to truth, healing and reconciliation
3. Foster public education among all about IRS & its continuing legacy so as to
assist in building a new relationship between Aboriginal and nonAboriginal Canadians
4. Aid in regional and national commemoration initiatives
5. Encourage reconciliation on a personal, community, regional and national
level between and among all those individuals, churches, and government
agencies who were directly involved in attending, working at, authorizing
and operating residential schools
6. Create as comprehensive an historical record as possible
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National Research Centre (NRC)
• NRC is a major element of achieving the last goal as the
“record shall be preserved and made accessible to the
public for future study and use” (1(e))
• TRC must “establish a research centre and ensure the
preservation of its archives” (3(d))
• NRC will continue to grow after TRC’s closing ceremony
and final report as NRC is open to receive statements
“with no time limitation” (4(f) and 10(C)) and from IAP,
litigation and Dispute resolution processes (11)
• NRC is, thus, not just an historic archive keeping
documents for safe-keeping and use of researchers
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Purpose of NRC
• Permanent preservation of “all materials created
or received” by the TRC “with a purpose and
tradition in keeping with the objectives and spirit
of the Commission’s work”
• NRC must reflect the openness of the TRC’s work
toward its goals: to aid in acknowledging the
“injustices and harms experienced”, the “need for
continued healing”, to “pave the way to
reconciliation”, & to establish “new relationships
embedded in mutual recognition and respect that
will forge a brighter future”
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Access to NRC’s collection
• NRC must be “accessible to former students, their
families and communities, the general public,
researchers and educators who wish to include
this historic material in curricula”
• All church parties and Government of Canada
have obligated themselves to support TRC and
provide all relevant materials – subject to privacy
rights of individuals, solicitor-client privilege and
applicable legislation; these legal limits =
potential source of major conflict
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How to Maximize Access?
• Preserving documents requires ‘A’ place for
repository, but that does not mean only One
place for access
• Modern technology enables a vast array of
strategies to bring access to collection into
people’s homes, offices & classrooms; in audio,
video and print formats
• Establish Regional centres with computer access
to online holdings along with core library?
• Create Travelling educational displays?
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Management of NRC
• Many possible management structures:
1. Within Library & Archives Canada (LAC)?
2. Standalone Centre with own Board?
3. Distinct branch of LAC but with own Board?
4. Partnership between LAC or CMCC with Survivors
or Aboriginal organizations?
5. Partnership with a string of universities?
6. Foundation with statutory base & ongoing
funding (CRRF) or not (AHF)
7. Others?
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Ensuring Permanency
• TRC required to establish NRC out of a portion
of its budget (Article 12)
• TRC’s Balance at end of 5 yrs unlikely to be
sufficient to provide capital endowment of
enough size to guarantee NRC survives forever
• Require archival capacity; commitment to
effective access yet privacy protection; &
trusted by all parties, especially Survivors
• = major challenge ahead
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Scope of NRC
• Fulfill IRSSA terms only OR more?
– Part of a broader National Aboriginal Archives that
extends beyond IRS to encompass records on a
wider range of issues & from many other sources?
– Undertake functions beyond preservation and
enabling access to IRS & TRC records, e.g., Public
Education? Advocacy? Support for related future
litigation? Ability to compel transfer of further
records inn the future? Others?
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Conclusion
• TRC is not a federal commission like RCAP or virtually
all others – its source is IRSSA = an out of court
settlement binding on all parties & subject to judicial
scrutiny
• The Commissioners carry the yearning for true
recognition of the horrendous harms done, the desire
for healing from generations, the hopes for
reconciliation and renewal shared by millions in
Canada, and the goal to always remember so it never,
ever happens again
• This Forum will provide valuable guidance in charting
the path forward to leave the NRC as one of the TRC’s
tremendous permanent legacies
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