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Beginning in 1874 and for more than a century, state authorities removed indigenous Canadian children from their families and communities and placed them in church-run Indian Residential Schools (IRS) in an effort to assimilate them into Canadian society. By 1920 their attendance at the IRS was compulsory, speaking Aboriginal languages in the schools was generally prohibited, and indigenous cultural practices were suppressed. Many students suffered physical, emotional, and sexual abuse in the schools.

Following years of negotiation by Aboriginal groups and other interested parties, the federal government agreed in 2006 to a package of reparations for school survivors. The estimated $2 billion Indian Residential Schools Settlement Agreement came into force in September 2007. The agreement includes provisions for financial compensation, a truth commission, and additional healing measures for IRS survivors, making it one of the first attempts to comprehensively address legacies of abuse in an established democracy.

ICTJ Activity

Before final approval of the Settlement Agreement the ICTJ began its engagement in September 2005 by organizing a colloquium, "Facing the Legacy of Indian and Inuit Residential Schools in Canada: International Lessons in Truth, Reparation, and Reconciliation," with the University of Toronto's Law Faculty and Munk Centre for International Studies. The purpose of the event, which brought together academics and Aboriginal leaders, was to provide information, analysis, and opportunities for discussion to support and inform the Canadian process of addressing the past. The colloquium featured thematic discussions by Mark Freeman, the ICTJ's senior project manager; Lisa Magarrell, senior associate and head of the Center's Canada program; and Graeme Simpson, ICTJ country program unit director, among others. Alex Boraine, the Center's chair and former president and the former deputy chair of the South African Truth and Reconciliation Commission, spoke about the South African experience. Other international visitors provided insights into the cases of Peru and Australia.

During the negotiation of the agreements the ICTJ served as a resource for stakeholders interested in drawing on the experience of other truth commissions as they tailored international lessons to their own unique context. By June 2007 it seemed very likely that the settlement agreement would become final soon. At that time the ICTJ was invited to participate in an interdisciplinary conference on the Truth and Reconciliation Commission, "Preparing for the Truth Commission: Sharing the Truth about Residential Schools," organized by the University of Calgary Law Faculty and the Assembly of First Nations (AFN). The conference was designed to engage with and inform survivors and the general non-Aboriginal public about the Commission's mandate and participation in the process. It also was to show the interest and support of people who had had similar experiences around the globe. Lisa Magarrell chaired a panel discussion on "International Experience of Truth Commissions: Lessons Learned and Best Practices."

While steps were being taken to legally finalize the settlement, the parties agreed to appoint an interim executive director of the TRC, who then built up a staff for  commissioners still to be named. In July 2007 the ICTJ conducted a workshop on truth commission challenges for the TRC staff and other stakeholders. Since that time the ICTJ has facilitated the exchange of expert advice and fielded specific inquiries about aspects of TRC operation such as statement taking and consent. The ICTJ has also shared its publications on reparations with a number of Canadian policy-makers and aboriginal advocates. In addition to providing support to the TRC staff, the ICTJ has responded to requests for information and advice from the AFN and collaborated with other organizations and groups working on related issues.

The ICTJ expects that the unique undertaking represented by the Canadian TRC and the extensive compensation program will offer important lessons to others around the world seeking to address past abuses of human rights. In that regard the ICTJ is facilitating access to information and expertise by others engaged in similar efforts related to truth-seeking, healing, memory, and reparation.

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Background

In accordance with a policy of assimilation, starting in 1874 the government of Canada and the Anglican, United, Presbyterian, and Catholic churches developed a nationwide system of residential schools for Aboriginal children that operated for more than 100 years-most extensively from the 1920s to the early 1960s. In 1969 the Canadian government assumed full responsibility for operating the residential schools, and by the mid-1970s most had ceased to operate; seven remained open through the 1980s. The last residential school closed in Saskatchewan in 1996.

By 1920 the residential school policy included compulsory attendance for all Aboriginal children aged 7 to 15. Children were removed from their homes and communities and made to reside full-time in the schools, where use of Aboriginal languages was generally prohibited; Aboriginal cultural practices were suppressed and ignored; parental bonds were strained or broken; discipline was often swift and violent; and children were often subjected to sexual, physical, and psychological abuse. Estimates put the number of residential school survivors at about 86,000.

In August 1991 the Canadian government established the Royal Commission on Aboriginal Peoples (RCAP), which had a broad mandate to examine the relationship between Aboriginal peoples, the government, and Canadian society as a whole. Although the Commission's mandate extended far beyond Aboriginal residential schools, it spent considerable time dealing with this problem and delivered its final report in November 1996. The report recommended a full public inquiry into the origins and effects of residential school policies and included proposals for remedial action, community compensation, and an apology.

In January 1998 the government of Canada issued a "Statement of Reconciliation," acknowledging the failure of the residential school policy and admitting that residential schools were designed to assimilate Aboriginals. The government acknowledged that attitudes of racial and cultural superiority led to suppression of Aboriginal cultures and values, resulting in the weakening of Aboriginal identity, languages, and spiritual practices. It released a new public policy, "Gathering Strength, Canada's Aboriginal Action Plan," on respecting Aboriginal people. The minister of Indian affairs also established a $350 million Aboriginal Healing Fund to help those affected by the residential schools.

Following the issuance of the RCAP report residential schools were the subject of extensive litigation. A small number of prosecutions of perpetrators of physical and sexual abuse and extensive civil proceedings against the government and churches have taken place. In 2003 the Canadian government launched an out-of-court dispute resolution (DR) program to compensate and offer therapeutic services to survivors of the residential schools who had suffered sexual and physical abuse and wrongful confinement. According to official data, by July 2005 only 147 claims had been settled, while 1,992 applications had been filed and were awaiting hearing or adjudication. Meanwhile, 12,455 tort claims had been filed in the courts and several class actions were pending by September 5, 2005.

In 2004 the AFN and the University of Calgary undertook a comprehensive evaluation of the DR program that found it inadequate to meet either the government's stated goals or the AFN's desire for "a just and fair settlement for residential school survivors." In May 2005 the government and the AFN signed a political agreement in which the government recognized that the DR program was not fully achieving reconciliation between Canada and the former residential school students. It accepted "the need to develop a new approach to achieve reconciliation on the basis of the AFN report." The parties agreed that the government would "work and consult with the AFN to ensure the acceptability of the comprehensive solution, to develop truth and reconciliation processes, commemoration and healing elements, and to look at improvements to the Alternative Dispute Resolution process."

The government appointed former Supreme Court Justice Frank Iacobucci as its representative and mandated him to work and consult with the AFN and other stakeholders. He was to recommend a comprehensive resolution of the residential schools legacy, including proposals for a truth-seeking process, commemoration and healing, and improvements to the DR program, by late March 2006.

On November 23, 2005, various representatives from the government, churches, the AFN, and legal counsel for former residential school students reached an Agreement in Principle on reparations, truth, and reconciliation. In January 2006 elections brought a new government to power, temporarily stalling the negotiation process. Nevertheless, in May 2006 the Conservative government cabinet approved the $2 billion Indian Residential Schools Settlement Agreement. As a precondition the settlement agreement required a series of consent decrees in courts across Canada and a 150-day period for former residents to opt out. The agreement would have fallen apart had more than 5,000 survivors rejected the settlement; but by the deadline only some 200 had chosen to do so. Thus the Indian Residential Schools Settlement Agreement came into force September 19, 2007.

Under the agreement former residential school students are entitled to a lump sum called the "Common Experience Payment," which recognizes the group harms that resulted from the schools. Former students who spent at least part of one scholastic year living at the schools are eligible for a payment of $10,000, plus $3,000 for every year thereafter. The average payment was expected to be $28,000. To speed up the compensation process for elderly survivors, former students aged 65 or over at the time of the May 2005 political agreement could apply for an advance payment of $8,000. More than 10,000 applications for the advance payment were approved at a cost of $82.6 million. Survivors who received an advance payment would have the amount deducted from their Common Experience Payment; in the event of a death after May 2005 the family would receive the compensation.

As of July 7, 2008, the government had received 94,085 applications for the Common Experience Payment and issued payments to 66,232 survivors. Payments have been somewhat lower than anticipated, primarily because of problems with documenting attendance, and a significant number of cases are being contested.

The new Independent Assessment Process, which replaces the earlier dispute resolution procedure, provides for compensation of up to $275,000 for sexual abuse, serious physical abuse, or other abuses that caused serious psychological effects. Although most claims are expected to be dealt with at hearings, the most complicated claims may still have to go to court.

Following the appointment of Justice Harry S. LaForme as the chair of the Truth and Reconciliation Commission (TRC), and of Claudette Dumont-Smith and Jane Morley as the two commissioners, the TRC officially began its work on June 1, 2008. The Truth and Reconciliation Commission is mandated to undertake a series of national and community events to allow school survivors to share their experiences and to educate the public about the schools' history and consequences. The Commission will operate for five years, but it is to deliver a report on historic findings and recommendations after two years. It is also to establish a research center by the end of its five-year term. Under the settlement agreement $60 million has been allocated to fund the Commission's work.

The agreement also provides for investments in aboriginal education and health services; $125 million to the Aboriginal Healing Foundation; and $20 million for events and memorials to commemorate the legacy of the residential schools.

As a complement to the settlement agreement, Aboriginal groups have long advocated for an official apology by the government of Canada. Although the House of Commons apologized for the residential schools policy on May 1, 2007, the executive branch was previously unwilling to issue a formal apology and hinted that it might come at the end of the TRC process. That changed when the Harper government announced in October 2007 that it would formally apologize to survivors. The formal apology was delivered in the House of Commons on June 11, 2008 with several Aboriginal representatives and residential schools survivors invited to receive the apology in person.

The settlement agreement marks an important attempt to comprehensively address legacies of abuse in an established democracy. Its existence as a product of court settlement and the consequent judicial oversight of the process are unique features, as is a TRC structure that allows a greater amount of time to develop the process locally through community events. By focusing on victims who were children at the time of the events and by bringing to the fore policies of forced assimilation of indigenous people and their intergenerational consequences, this truth commission process may explore important new terrain. It may also develop new approaches to truth seeking in contexts of unresolved historical abuses that cast a long shadow into the present day.

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(Updated July 2008)