The Harms Caused: A Narrative of Intergenerational Responsibility

Abstract

Born out of the Indian Residential Schools Settlement Agreement, the Independent Assessment Process is a program that provides monetary compensation to former students who suffered sexual and physical abuse at Indian Residential Schools. As “Canada’s Representative” during hearings of the Independent Assessment Process, this author, a young lawyer at the time, bore witness to grizzly accounts of acts perpetrated against claimants that left her unsettled. Unsettled by what was heard, yes, but also in her observations that the process did not satisfy the needs of all claimants, nor did it engage with her own sense of responsibility as a non-Indigenous Canadian. The author weaves together her experiences and observations as “Canada’s Representative” to explore intergenerational justice in a Canadian setting, and what processes might offer a more complete approach in handling the Indian Residential Schools legacy. First, shecanvasses the existing framework of dispute settlement in the context of Indian Residential Schools, namely criminal, tort, and alternative dispute resolution mechanisms. While pointing out the strengths these mechanisms do have to address some of the harms of Indian Residential Schools, she ultimately suggests their inherent legal limitations make them inadequate tools to provide redress to victims and engage society more broadly. The author goes on to define transitional justice, set out its established tenets and themes, and begins to map out a Canadian application of these principles to the Indian Residential Schools policy by drawing on examples from Australia, New Zealand, and the United States. These principles take shape as innovative instruments for advancing the goals of reconciliation and of Canadian society. They are not without their own flaws, however, as the author also points out, that may affect how Canadians—in particular, non-Indigenous Canadians—view their legitimacy. Lastly, the author analyzes prevailing views of societal responsibility to provide a normative underpinning for intergenerational justice in a Canadian context. She concludes by advocating Canadians move from a stance of guilt and blame toward one of a broad assumption of responsibility as they continue to grapple with the legacy of Indian Residential Schools.