Introduction: The residential school litigation and settlement

The removal of Aboriginal children from their families and communities to attend residential schools and the attempt at forced assimilation constitutes one of the gravest injustices in Canadian history.¹ This symposium on the Aboriginal residential school litigation and settlement is part of a necessary attempt to understand better the complex relationship between the Canadian legal system and the massive wrongdoings of the residential schools. Some important and critical accounts of the residential school litigation have already been written,² but much work remains to be done. The articles in this special issue emerged from a conference held at the University of Toronto’s Faculty of Law on 17–8 January 2013. The conference brought together many who had played key roles in the litigation and settlement to reflect on their experiences. These included the Honourable Frank Iacobucci and former Assembly of First Nations (AFN) National Chief Phil Fontaine.

A better understanding of the residential school litigation and settlement is relevant both as a coda to the shameful history of Canada’s residential schools and as a window onto the Canadian legal system. It may be tempting to think that the residential school litigation is simply history because of the 2006 settlement. The reality is, however, that much similar litigation continues to this day. For example, there is ongoing litigation on behalf of residential school survivors excluded from the settlement agreement³ including day school survivors.⁴ A class action has also been commenced on behalf of Aboriginal children,⁵ often the children of residential school survivors, who were adopted out of Aboriginal families and communities in the so-called ‘sixties scoop’ (which, in fact, extended far beyond the 1960s).⁶ Moreover, there has also been litigation in closely related areas involving the abuse of children in institutions, including, for example, the recently settled case of the Huronia Regional Centre.⁷ In addition, sentencing judges have been specifically instructed by the Supreme Court of Canada to take into account background circumstances including residential schools and their harms when sentencing Aboriginal offenders.⁸

The Canadian legal system has had a long relationship to residential schools. Indeed, for much of our history, the legal system sanctioned the residential schools system. The Indian Act enacted by the federal Parliament eventually provided for forced attendance at the schools.⁹ In addition, the Canadian legal system was largely complicit in the operation of the system, generally failing to recognize or prevent the many injustices of the residential schools as they were happening.¹⁰ The legacy of this failure endures. For example, the Missing Women Commission recently concluded that the role of the RCMP in taking children from their families and enforcing their attendance at residential schools still contributes to a lack of trust between the RCMP and Aboriginal communities.¹¹ The word for police in the Carrier language (a North Athabaskan Aboriginal language) is translated as ‘those who take us away.’¹² Many of the children and grandchildren of residential school survivors find the Canadian legal system a negative factor in their lives. The legacy of residential schools helps explain both the gross over-representation of Aboriginal people among those victimized by crimes and imprisoned for committing them.¹³

Over the last two decades, the Canadian legal system has been more actively engaged in attempting to remedy the many wrongs committed in the schools. There have been criminal prosecutions of some of those who sexually and physically abused Aboriginal children in the schools. Nevertheless, these prosecutions have been very few, especially in relation to the approximately 38 000 survivors who have subsequently claimed compensation for sexual and serious physical abuse.

The Royal Commission on Aboriginal Peoples in 1996¹⁴ and the Law Commission of Canada in 2000¹⁵ recommended public inquiries, truth commissions, and redress programs as better alternatives to civil litigation, but these were not pursued. In the face of this inaction, hundreds and then thousands of lawsuits were brought on behalf of residential school survivors. These claims eventually resulted in the largest national class action and settlement in Canadian history, approved by courts...