Paul Allen

“Canada’s war against Indigenous People was through law”

“After Confederation, the government of Canada waged war – just like the Americans did. Americans did it through military might – the Indian Wars during Lincoln’s era and afterwards were a big part of American history. But Canada’s war against Indigenous People was through law. We waged war through law. Imagine being subjected to that. If you wanted to challenge it, you’d go to court. Often that’s the answer. You hire a lawyer and go to court. Well, if a lawyer agreed to give you advice, he would be disbarred unless he got permission from the Minister of Indian Affairs to give you that advice. If the individual went to court, the court could not accept an application unless the Minister of Indian Affairs’ consent to be sued was filed as well. The Minister never gave consent to being sued. If you wanted to protest – if you wanted to travel to Ottawa and protest against this – it became illegal to leave the reserve. It became illegal to gather in large numbers. In fact, if three or more Indigenous people gathered together for the purpose of complaining about the government of Canada’s treatment of them, they were guilty of an Indigenous or Indian conspiracy and could be prosecuted and jailed. Indian conspiracy laws were passed in the late 1880s. If your leaders in your community were trying to lobby or trying to effect change – because they were your traditional chiefs, traditional heads-people, traditional women leaders – the government had an answer for that, because in 1891 they passed a law that said those traditional leaders could no longer speak for the community, and only those men, over the age of 21 were allowed to hold office, elected under rules established by the Department of Indian Affairs. They had to give notice to the Indian Agent when they were holding a meeting, and the Indian Agent had to be present when they held the meeting, and he chaired the meeting, and he kept a record of all of the decisions by the Band Council. So, Indian archives were in the hands of the government from the very beginning. And so, the right to protest, the right to go to court, were all taken away from you. Maintaining your culture was taken away from you, not only in the schools, but in the communities, and those schools and the communities suffered under this regime from after Confederation until relatively recently.” ~ The Honourable Murray Sinclair (former Chair, Truth and Reconciliation Commission of Canada), Keynote address to the Tommy Douglas Institute, December 3, 2018, at 34:05.

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Truth and Reconciliation

Volume 1 of The Final Report of the Truth and Reconciliation Commission of Canada (TRCC) described the history of my nation’s Indian Residential Schools.1Truth and Reconciliation Commission of Canada (2015), Canada’s Residential Schools: The History–Origins to 1939 (Volume 1, Part 1), 1939 to 2000 (Volume 1, Part 2). Part 1 included a description of how the federal government fashioned an elaborate framework first to strip Indigenous People of their treaty rights and then to deny them legal recourse against those who were harming them. Part 2 included a description of a complex process that resulted in the signing of the Indian Residential Schools Settlement Agreement (IRSSA) in 2006.

The TRCC lamented that the full extent of child abuse in Canada’s Indian Residential Schools “is likely to remain unknown and unknowable. Many victims are now dead. Many more have been unwilling to speak about their experiences.”2Volume 1, Part 2, p. 399. Numerous individual civil lawsuits and class-action lawsuits were never decided, but were settled out of court under the terms of the IRSSA.3By October 2001, more than 8,500 residential school Survivors had filed lawsuits against the federal government, the churches, related organizations, and, where possible, the individuals who committed the abuse. In 2005, it was estimated that 18,000 outstanding civil suits would take 53 years to conclude, at a cost of $2.3 billion – not including any compensation awarded to Survivors. Nineteen class-action lawsuits were filed in nine provinces and territories. Volume 1, Part 2, pp. 562-563, 569. It must also be admitted that the federal government muddied the waters further by withholding records of criminal convictions connected to Indian Residential Schools.4Volume 1, Part 2, p. 412.

Faced with these limitations, the TRCC relied on three primary sources of information:

  1. Statistics generated by the Independent Assessment Process (IAP) and the Common Experience Payment (CEP) programs established by the IRSSA.
  2. The documentary record, particularly as it related to prosecutions of child abusers affiliated with Indian Residential Schools.
  3. Statements of Survivors, whether made to the TRCC or in other forums.5Volume 1, Part 2, p. 399.

On this basis of its study of these primary resources, the TRCC concluded that governments and churches had failed children and their families in multiple respects:

  • They failed to acknowledge the legitimacy of Aboriginal reports of abuse.
  • They failed to take action.
  • They failed to investigate complaints impartially.
  • They failed to report abuse to the police.
  • They failed to report properly on the prosecution of residential school staff.
  • They failed to screen effectively when hiring.
  • They failed to protect students from abuse by other students.
  • They failed to assist victims.6Volume 1, Part 2, pp. 413-414.

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Denialism

The TRCC’s conclusions about Indian Residential Schools are becoming better known and are gaining broader acceptance among Canadians. Yet a pernicious “residential school denialism” is also taking hold in some political quarters:

Let’s join with Indigenous leaders and other public thinkers who understand that truth must come before reconciliation – for now is not a time to be complacent.

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TRCC and the law

Two chapters in the TRCC’s Final Report recount the history of Survivors of Indian Residential Schools seeking justice in Canada’s courts:

  • “Abuse: 1940-2000,” Chaper 41, Volume 1, Part 2, pp. 399-451.
  • “Getting to the Settlement Agreement,” Chapter 45, Volume 1, Part 2, pp. 551-579.

A third chapter views this history through a “denial of justice” lens and argues that Canada’s justice system continues to discriminate against Aboriginal persons:

  • “A denial of justice,” Chapter 5, Volume 5, pp. 185-276.

The Final Report cites many primary legal sources (legislation, legal decisons, court documents, etc.) to support its findings and recommendations. The discussion revolves around three major themes relating to justice:

    1. The failures of the criminal justice system in protecting residential school students and punishing those who abused them physically, sexually, and emotionally (vol. 5, pp. 188-198).
    2. The failures of the civil litigation process to provide justice to the Survivors of the residential schools and their families (vol. 5, pp. 199-218).
    3. The criminal legacies of the schools, the myriad harms and inter-generational damage inflicted by the government policy of removing children from their homes and forcibly separating them from their families and communities, language, and cultures, all of which have contributed to the disturbingly high over-representation of Aboriginal people in prison (vol. 5, pp. 218-234).

Justice is at the centre of 18 of 94 Calls to Action issued by the TRCC.7“Calls to Action,” Volume 5, pp. 284-295.

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Data

For convenience, we have converted the TRCC’s primary legal resources into three machine-readable formats:

  1. A webpage (HTML format).
  2. A spreadsheet (XLSX format) that includes:
    1. Appendix A.1 – Lists the TRCC’s references to legal resources (legislation, legal decisions, court documents etc) alphabetically by volume.
    2. Appendix A.2 – Provides the TRCC’s alternative citations for a given legal decision, and our choice for a common citation for every decision.8The number of the volume in which an alternative citation appears is given in curly parentheses.
    3. Appendix A.3 – Identifies the TRCC’s 154 unique references to Canadian legal decisions.9We exclude one U. S. Legal Decision referenced in Appendix A.1 (United States v. Winans, 198 U.S. 371, 25 S.Ct. 662 (1905). We also exclude four Court Files referenced in Appendix A.1: Cardinal v. Canada (Attorney General). Court File No. 550-06-000308-502; House v. Canada (Attorney General). Court File No. 550-06-0000210-056; Lalibertie v. Canada (Attorney General) (2005). Court File No. T-1620-05; and Sparvier v. Canada (Attorney General) (2005). Court File No. T-848-05. Alongside its Common Citation, we provide links to all but two of these legal decisions (Her Majesty the Queen, and Harold Daniel McIntee. Reasons for Judgment, Judge C.C. Marnett, Provincial Court of British Columbia, 1 June 1989; and R. v. Constant (2005) Man. QB (Dauphin) (CR03-05-00069)) which we were unable to locate online.
  3. A spreadsheet (XLSX format) that links the TRCC’s 154 unique references to Canadian legal decisions to two online legal databases (CanLII and LexisNexis), including these data fields:10Again, we excluded two decisions: Her Majesty the Queen, and Harold Daniel McIntee. Reasons for Judgment, Judge C.C. Marnett, Provincial Court of British Columbia, 1 June 1989; and R. v. Constant (2005) Man. QB (Dauphin) (CR03-05-00069).
Table 1. Citations for Canadian Legal Decisions in the TRCC’s Final Report
Field Description
TRCC_VOLUME Volume(s) of the TRCC’s Final Report citing a legal decision
CITATION_TRCC Citation in the TRCC’s Final Report.
CITATION_CANLII Citation in CanLII.
CITATION_LEXIS Citation in LexisNexis.

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Licence

We are publishing this material under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International licence. If you find use for our work, please credit Paul Allen (https://paulallen.ca).

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