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 childrenages 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 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.

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 schoolsFederal 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 AgreementIRSSA = 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.

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 Statement-Taking/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 non-Aboriginal Canadians

4. Aid in regional and national commemoration initiatives5. 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 ahead18

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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