We were particularly committed to working on these issues given the establishment in 2009 of the Truth and Reconciliation Commission of Canada (TRC) as part of the Indian Residential Schools Agreement. The TRC has a mandate that includes working to “promote awareness and public education of Canadians about the Indian Residential School system and its impacts”. Through our initiative, we are seeking to contribute to this important work. The residential schools are part of our shared history and it is essential to ensure awareness and understanding about this chapter of our history.
As a human rights centre in a leading Canadian university, and as strong believers in the ethos of inclusive citizenship, we are committed to engaging with issues of Aboriginal rights and justice.
A. Legacies of Injustice and Residential Schools: Responsibilities and Relationships through the Lens of Law
In response to the call for research proposals by the Truth and Reconciliation Commission of Canada, the Centre submitted a proposal for three working papers on issues related to “Legacies of Injustice and Indian Residential Schools: Responsibilities and Relationships through the Lens of Law” in August 2010.
In 2012, the research is ongoing. The primary objective of the research is to enhance understanding of human rights abuses that occurred during the Indian Residential Schools era through advanced legal and interdisciplinary research.
We also aim to examine how these human rights violations implicate both constitutional and international law and how we can begin to recognize and redress historic wrongs without creating or perpetuating further harms. This research initiative draws on the expertise and research commitments of members of the McGill Centre for Human Rights and Legal Pluralism, and is part of a larger, emerging commitment at the Centre for Human Rights and Legal Pluralism to work on indigenous rights.
Working Papers for the Truth and Reconciliation Commission of Canada - Centre Researchers:
Colleen Sheppard, “Indigenous Peoples in Canada: Understanding Divergent Conceptions of Reconciliation”
Kirsten Anker, “Indigenous Legal Traditions and the Truth and Reconciliation Commission: Law, Sovereignty and Reconciliation in Translation”
Mark Antaki, “Critical Constitutional Law: Aboriginal Rights, Recognition, and Reconciliation”
B. Indigenous Legal Traditions in the Transsystemic Legal Education Program
Researcher: Kirsten Anker
Project co-sponsored by McGill’s Faculty of Law and Justice Canada, with additional funding from the McGill Teaching & Learning Improvement Fund
The project investigates the inclusion of indigenous legal traditions in McGill’s Transsystemic Legal Education Program. It continues a process of curriculum development in the Faculty of Law that acknowledges indigenous legal traditions as a source of Canadian law, alongside the civil law and common law traditions. It aims to address challenges – both in the form that education about indigenous law can take (where law may not be textually transmitted) and in the legitimacy of teaching indigenous law in a largely non-indigenous institution – by engaging in a collaborative process with local and regional First Nations, Inuit and Métis communities. The context of transsystemic legal education provides a unique intellectual approach to understanding the interplay between the various legal traditions that students explore in this course. The links that it will forge between the Faculty of Law and different indigenous communities will likely lead to other kinds of collaborative endeavours, whether in research or teaching, that will enrich the general intellectual community of the Faculty and the University. The hope is that other law faculties would be encouraged by this initiative to introduce students to indigenous traditions as a source of law in their curricula, and to do so via a collaborative path.
C. Research Roundtable and Workshop: Indigenous Peoples, Truth and Reconciliation: Comparative and Critical Perspectives - October 14, 2011
To advance critical and comparative research and dialogue on reconciliation and indigenous peoples, the Centre organized a one-day workshop on October 14, 2011. Short 5-page think pieces were presented at the workshop on the following themes: (i) Truth and Reconciliation: The Continuing Impact of Colonialism; (ii) Pluralistic and Comparative Perspectives on Truth and Reconciliation; and (iii) Rights and Reconciliation: Pathways Forward. (Project funded by the Provost Priority Pool)
PANEL 1 - Truth and Reconciliation: The Continuing Impact of Colonialism
How did colonialism shape and influence the residential schools policies in Canada? How does the continuing impact of colonialism affect the discourse on reconciliation and responsibility for historic wrongs?
Professor Mark Antaki, Associate Professor, Faculty of Law, McGill University. “Think Piece for the Workshop on Indigenous Peoples, Truth and Reconciliation: Comparative and Critical Perspectives”
My piece for the first panel ― Truth and Reconciliation: The Continuing Impact of Colonialism ― focuses on the second question put to panel members, i.e. How does the continuing impact of colonialism affect the discourse on reconciliation and responsibility for historic wrongs? (as opposed to the first: ―How did colonialism shape and influence the residential schools policies in Canada?) It draws on my research for the TRC on Critical Constitutional Law: Aboriginal Rights, Recognition, and Reconciliation.
Professor Isabel Altamirano-Jimenez, Assistant Professor, Political Science and Faculty of Native Studies, University of Alberta. “Settler colonialism and the “disappearance” of Indigenous peoples”
In this piece, I explored how different forms of colonialism produce specific modes of governance. Specifically, I was interested in discussing how settler colonialism has operated in Canada and has affected Indigenous men and women‘s lives. Some of the questions I raised are: How has settler colonialism shaped Indigenous peoples‘ status in Canada? How has settler colonialism conditioned non-Indigenous Canadians’ understanding of history? I argued that as a specific form of governance, settler colonialism has produced narratives in which Indigenous peoples and their experiences have been erased creating the impression that Indigenous peoples colonialism are part of the past. In my view, this situation raises the question of whether or not can a colonial country be reconciled.
Professor Dale Turner, Associate Professor of Government and Native American Studies, Dartmouth College. “On the Idea of Reconciliation in Contemporary Aboriginal Politics”, published in Reconciling Canada: Critical Perspectives on the Culture of Redress.
PANEL 2 - Pluralistic and Comparative Perspectives on Truth and Reconciliation
What approaches to reconciliation have emerged in settler states to redress historic wrongs against Indigenous communities, particularly the harms linked to residential schools? What are some of the complexities and contradictions in these initiatives? How do diverse Indigenous traditions influence our understanding of reconciliation?
Professor Kirsten Anker - Chair. Assistant Professor, Faculty of Law, McGill University. “From comparison to pluralism: questioning the familiar”
This paper begins by contrasting the approaches of comparative and pluralist studies of law, noting that while the former tends to focus on states in different territories and the latter on overlapping normativity in the same social space, the interpretive process in comparison between different systems in both should open onto a concern with discursivity and intersection. In a brief discussion of reconciliation in Australia and Canada, a first stage of comparison brings to light the two fairly segregated areas of reconciliation discourse in Canada (residential schools and s.35 claims) in contrast to a more holistic and grassroots political movement in Australia, while a second observes the productive nature of this comparison by shifting the terms in which we analyse and understand reconciliation. Finally, the paper acknowledges the importance of Indigenous legal traditions to the process of redressing the harms of Indian residential schools and proposes a more in-depth study, to follow, on the significance of 3 different traditions often cited as relevant to healing and restorative justice: witnessing, circles and condolence ceremonies.
Dr. Melissa Martins Casagrande (Curitiba, Brazil) Junior Research Fellow, CHRLP, McGill University; “Indigenous Peoples, Truth and Reconciliation: Lessons for and from Latin America”
Truth Commissions or similar reconciliation initiatives have become an integral part of an effort linked to the concepts of forgiveness, reintegration, and memorialisation in different contexts of widespread conflict and/or other forms of oppression. This study proposes an analysis of the twelve Truth and Reconciliation Initiatives in Latin America from 1982 to 2011 with mandates either concluded or ongoing and excluding commissions exclusively dedicated to judicial or investigative inquiries. The aim of the analysis is to access whether an arguable tendency of restrictiveness in language, mandate and outreach of reconciliation efforts exclude or nearly-exclude intrinsic or parallel sources of abuse and discrimination from the dialogues established and enabled by the Truth and Reconciliation Commissions (TRCs). This non-comprehensive analysis of potential non-inclusive reconciliation initiatives observes and contrasts the twelve TRC initiatives in Latin America from a perspective that surveys the TRCs consideration of indigenous peoples affected by the wrongful actions under scrutiny as well as their participation in reconciliation efforts. None of the TRCs in Latin America has a direct mandate to redress abuses against indigenous peoples despite the fact that most oppressive regimes defended a hegemonic society discouraging not only political pluralism but also social, cultural, religious and linguistic pluralism. Most atrocities analysed by the Latin American TRCs occurred between the 1960s and 1980s yet only some of the TRCs are inclusive towards indigenous peoples relating both their experience when subjected to abuses as persons and as communities and to indigenous peoples’ understandings of reconciliation. The timing of the reconciliation-related inclusiveness, where it exists, suggests a correlation between such measures and the adoption of an increasingly pluralist legal and political model towards indigenous peoples at national and global levels. The comparison demonstrates that on the one hand, exceptionally good practices exist such as inclusive measures adopted in Colombia, Ecuador, Guatemala and Peru and, on the other hand, there is a lack of full-fledged commitment to a pluralist legal model by others such as Brazil, Chile and Paraguay.
Professor Louellyn White, Assistant Professor, First Peoples Studies, School of Community and Public Affairs, Concordia University. “Truth and Reconciliation on Both Sides of the Border: From Carlisle to Canada”
This paper provides thoughts and observations regarding truth and reconciliation efforts in Canada, initiatives in the United States, and the complexities that arise from these movements, particularly in regards to language and cultural revitalization efforts and intergenerational impacts. As an Indigenous person impacted by residential schooling as an intergenerational “survivor,” my professional position as a Mohawk researcher provides me with opportunities for addressing the impacts of residential schooling on a broad scale. I am from Akwesasne, Mohawk territory bisected by the international border between the United States and Canada and am invested in the topic of residential schooling on both sides of the border. Although I am situated in Canada currently, my upbringing and education were primarily within the United States and my family was subjected to the assimilation policies of the United States federal government. However, as I attempt to point out in this paper, we should not forget the underlying racist system of colonialism in both the United States and Canada that attempted to erase Indigenous identities. This paper offers more questions than answers regarding truth and reconciliation efforts particularly as movements in the United States are still in the early stages.
PANEL 3 - Rights and Reconciliation: Pathways Forward
To what extent is human rights discourse helpful in developing ways to redress past wrongs and restructure relationships between individuals and communities? What is the relevance of international and domestic rights in relation to the residential school experience in Canada? What are the limits of rights discourse?
Professor Colleen Sheppard, Chair. Director, Centre for Human Rights and Legal Pluralism, McGill University; “Reconciliation and the Lessons of Systemic Discrimination”
Can reconciliation occur in a context of ongoing violation of rights? Most truth and reconciliation commissions have been established in the aftermath of human rights violations. To a certain extent, the Truth and Reconciliation Commission of Canada follows this pattern. It was established to “acknowledge Residential School experiences, impacts and consequences” and to provide “a holistic, culturally appropriate and safe setting for former students, their families and communities” to speak out about past abuses. Its mandate, however, also extends to identifying “the effect and consequences of IRS (including systemic harms, intergenerational consequences and the impact on human dignity) and the ongoing legacy of the residential schools.” This additional component of the TRC’s mandate speaks to a critical reality. The Indian residential schools experience is only one part of a much larger history and continuing reality of systemic, structural and intergenerational harm. While the closing of Indian residential schools is a significant milestone, it did not mark the end of government policies undermining the rights of Aboriginal peoples in Canada. There have been numerous reports and studies which document historical and continuing violations of the rights of Indigenous peoples in Canada. Thus, it is important to situate the effects and legacies of Indian residential schools in a broader historical, systemic and structural context and to identify ongoing human rights violations. In particular, does the evolving meaning of discrimination shed any light on how we might interpret legal protections to be free of discrimination in relation to Indigenous peoples in Canada, and in particular Indian residential schools and their legacy?
Professor Brenda Gunn, Assistant Professor, Faculty of Law, University of Manitoba. “Self-Determination as the Basis for Reconciliation: Implementing the UN Declaration on the Rights of Indigenous Peoples”
This paper argues that to move forward and rebuild and renew these relationships, we must rectify the colonial legal history in Canada. In this sense, reconciliation must be about a process of working together to redefine the relationship between Aboriginal people and the Crown. Self-determination, as acknowledged in the UN Declaration on the Rights of Indigenous Peoples, provides the best way to do this.
Professor Ronald Niezen, Dept of Anthropology, McGill University. "The Ethnography of Canada’s Truth and Reconciliation Commission on Residential Schools", excerpt from Public Justice and the Anthropology of Law, Cambridge University Press, 2010.
"The recent creation of the Truth and Reconciliation Commission on Indian residential schools provides an opportunity to examine some of the ways that universal principles of human rights and transitional justice are acted upon in a national venue and interpreted by the participants—and by those who choose to not participate. The category of non-participants in Canada’s TRC includes many of the priests, nuns, and lay people who worked in the schools as well as former government employees and policy makers, a set of exclusions (and self-exclusions) that has important consequences for the effectiveness (and effects) of the Commission. With a methodological starting point in the ethnographic study of public events and processes, this paper will explore the possibility that international law is not only providing venues for human rights redress, but is at the same time reinterpreting common understandings of human life and redefining human experience."
C. Visiting Fellow
Geneviève Painter, doctoral candidate in Jurisprudence and Social Policy at the University of California, Berkeley, was a Visiting Fellow at the CHRLP. Her doctoral research focuses on critical perspectives on human rights, social movements, and settler colonial-indigenous relations. Her current project concerns the human rights dimensions of the Truth and Reconciliation Commission of Canada.
D. Aisenstadt Fellow
Cécile Capela-Laborde, LLB/BCL candidate at McGill University, was the 2013 Aisenstadt Fellow at the CHRLP.
Our paper will reflect on the implications and the meanings of the use of the nosological category of PTSD in the IAP may have as a means for IRS survivors to obtain compensation.
The first part of our paper will examine some of the advantages and disadvantages of using the nosological category of PTSD. We will argue that, on the one hand, using this category to award damages has the advantage of presenting trauma as a ‘normal reaction to an abnormal event’. This understanding normalizes the development of trauma in the face of extraordinary events, and thereby avoids the re-victimization of survivors during hearings. On the other hand, relying on a PTSD diagnosis in the IAP fails to account for intergenerational trauma, since PTSD necessitates that one directly experiences the traumatic event. Moreover, the use of the PTSD category encourages the systemic and self-identification of survivors as victims.
In the second part of our paper, we will argue that this analysis of the pros and cons of using the nosological category PTSD to allocate compensation has to be resituated within, and mitigated by, a critical understanding. Upon closer consideration, the category of PTSD, which is thought of as objective, is in fact highly subjective. It is a historically contingent product, born out of Western twenty first century clinical practices and technologies. The intercultural validity of its diagnostis is thus limited. The political power of a PTSD diagnosis rests precisely in the masking of a subjective decision behind a façade of objectivity. While evaluating compensation for consequential harm, we forget that psychiatry is itself political, normative, and a large source of power. As the judge bases the quantum of compensation on a psychiatrist’s expertise, she justifies her decision on the illusion of a scientific, objective fact. This recourse to a priori objective assessment allows for a subtle form of re-colonization. It forces IRS survivors to adopt the hegemonic Western way of knowing, thought, reasoning and language to obtain compensation. The IAP excludes and suppresses Indigenous ways of knowing the world, and Indigenous voices of what constitutes justice, healing and restoration. Thus, re-colonization in the IAP occurs on two distinct levels. Firstly, it happens as IRS survivors’ claims are heard in the Canadian courts, and secondly it takes place as the judge uses a psychiatrist’s expertise to determine the quantum of compensation.
A. Student-Led Seminar on Truth, Reconciliation and Indigenous Perspectives, Fall 2011
The initiative around the residential schools and the TRC prompted a student-initiated seminar which was conducted in the fall 2011. It was entitled “Reconciliation, Truth and Indigenous Perspectives.” Centre Director, Professor Colleen Sheppard was the Faculty Supervisor for the seminar.
B. Seminar on Truth, Reconciliation and Indigenous Peoples, Winter 2013
Instructor: Colleen Sheppard
In Winter 2013, Professor Colleen Sheppard drew on the materials of the student-led seminar to teach a seminar herself. See the Syllabus [.docx]
A poster featuring the abstracts of the students’ research was put together for the TRC events of April 2013, and one of the students had the honour to make a statement to the TRC on behalf of the class, reinstating the importance for university students to learn about Indigenous history and knowledge.
Statement Poster [.pdf]
C. Human Rights Internships related to the Aboriginal Human Rights Initiatives
Law students have had the opportunity to do internships at the following two organisations:
- The Truth and Reconciliation Commission – Winnipeg, Canada
- Maliiganik Tukisiiniakvik Legal Services – Iqaluit, Nunavut
For further information, see the Human Rights Internships Program 2012 Report [.pdf].
The Treaty of Niagara 1764 and Canadian constitutionalism today: Crown/First Nations relations 250 years in, September 15, 2014
The CHRLP and the Aboriginal Law Students’ Association were proud to host this event as part of Indigenous Awareness Week 2014, in partnership with the Office of Social Equity and Diversity in Education. It was a great opportunity to learn about the Treaty of Niagara and its implications for understanding the Royal Proclamation, the development of present-day Canada, and the Crown/First Nations relationship.
The speakers were Al Corbière, a carrier of a Niagara wampum replica, who explained the historical context in which the Treaty of Niagara was negotiated, as well as the meaning of wampum belts that embody the Treaty of Niagara; and Aaron Mills, Trudeau & Vanier scholar and PhD candidate at U. Vic., who discussed the significance of the Treaty of Niagara from the perspective of Anishinaabe law and constitutionalism and its implication for Canadian constitutionalism.
The event recording is available here: bcooltv.mcgill.ca/Viewer1/?rid=f9d7e688-6a42-4040-b63e-0efd37fcb763
Wallenberg Annual Conference, 25 September 2013
Law vs. Justice: How the Courts are preparing the way for one last, fatal, round of treaty negociations with Indigenous Peoples in Canada.
Speaker: Me Mary Eberts
Romeo Saganash, Keynote Address at the Annual National RightsWatch Conference, October 2012: "Civil Liberties – People, Power and Protest"
The Honourable Romeo Saganash delivered a keynote address on the opening reception of the conference. Co-sponsored with the Canadian Civil Liberties Assocation.
Plan Nord: Perspectives, Challenges and Promises for Northern Indigenous Communities, Feb 2012
The Aboriginal Law Students’ Association, Environmental Law McGill and the McGill Journal of Sustainable Development Law jointly organized a cross-disciplinary panel discussion bringing together indigenous leaders and community members, researchers, legal practitioners and representatives of civil society organizations to discuss some of the issues arising from the implementation of Plan Nord, from the perspective of indigenous communities. Panelists discussed the issues affecting Northern indigenous communities with regards to consultation processes and the eventual implementation of the Government of Quebec’s commitments and constitutional obligations towards Aboriginal communities. They also addressed the potential impacts of large-scale development projects on indigenous cultures, governance and livelihoods, the promises and pitfalls of sustainable development as a framework for the implementation of Plan Nord and issues of participation in decision-making, governance and self-determination.
Speakers included Professors Jaye Ellis and Colin Scott, Mr Harry Tulugak, Aurélie Arnaud, Ugo Lapointe, Me John Paul Murdoch and Chief Ghislain Picard. Professor Richard Janda moderated the first panel while Professor Kirsten Anker moderated the second.
The event was sponsored by the Law Students’ Association, the Hydro Quebec Fund for Sustainable Development Law, the Centre for Human Rights and Legal Pluralism, the McGill Alumni Fund and Café Santropol.
See poster [.pdf].
D. Other events
The Centre also partnered with the dynamic Aboriginal Law Students Association at McGill for this endeavor and participated and/or organized the following events in the academic year 2010-2011:
“Stolen Sisters: A Critical Perspective on Missing and Murdered Aboriginal Women in Canada” Panel Discussion, March 2011
An estimated 583 to 3000 Aboriginal women have gone missing or been murdered in Canada since the 1980s. This event featured a roundtable discussion between community members and researchers that have dedicated themselves to bringing awareness to this issue. The general lack of information or proper coverage, as well as an absence of police investigations of missing and murdered women raised cause for concern. Speakers shared their perspectives on the scope of this issue, the factors that aggravate, and the actions that need to be taken to address the continued disappearance of our sisters.
The John P. Humphrey Lecture in Human Rights: A Dene Perspective in Canada: its Laws and its Institutions, January 2011
Stephen Kakfwi (Former Premier of the NWT & Dene leader) gave the 2011 annual Humphrey Lecture. See flyer [.pdf].
A Courage to Remember: Stories of Our Labrador Residential School Experience
Documentary screening, November 2010, followed by discussion led by Joseph Flowers (BCL/LLB'12). The Courage To Remember narrates the multi-generational impacts of residential schools. Joseph Flowers shared some of his experiences as a son, nephew and grandson of residential school survivors.
A. Aboriginal Field Studies Course - Summer 2013
This yearly 4-week intensive field course (3 weeks at McGill, 1 week at Kahnawake, Mohawk Territory) provides an opportunity for Social Work, Law, Medicine and Anthropology students to learn about Haudenosaunee cultures and worldviews, with particular emphasis on linkages to students' practice areas. Attention given to effects of Canadian policies on contemporary Aboriginal society.
B. Aboriginal Law Portfolio, Human Rights Working Group
The Human Right Working Group and the Aboriginal Law Student Association are working closely to give more visibility to Aboriginal issues within the McGill Faculty of Law through the activities of the Aboriginal Law Portfolio.
C. Truth & Reconciliation Commission of Canada
Truth & Reconciliation Commission of Canada has a mandate to learn the truth about what happened in the residential schools and to inform all Canadians about what happened in the schools. The Commission will document the truth of what happened by relying on records held by those who operated and funded the schools, testimony from officials of the institutions that operated the schools, and experiences reported by survivors, their families, communities and anyone personally affected by the residential school experience and its subsequent impacts.
D. Aboriginal Law Student Association
Aboriginal Law Student Association: un groupe d’étudiants en droit de l’Université McGill qui s’engage à sensibiliser le public sur les enjeux juridiques touchant les peuples autochtones au Canada. Aboriginal Law Students' Association members also seek to expose students at the Faculty to the legal traditions of Aboriginal peoples in Canada. ALSA is a non-hierarchical club open to everyone.
E. McGill University’s First Peoples’ House
McGill University’s First Peoples’ House strives to provide a “home away from home” for First Nations, Inuit and Métis students at McGill University. FPH is a space where students can find academic support and stay connected to Indigenous culture. Playing many roles, including those of residence, gathering place and resource centre, FPH is first and foremost a community.
F. QPIRG McGill
QPIRG McGill – Kanata, Indigenous Studies Community. This is McGill-based student support community that explores, shares, and provides learning opportunities for anyone interested in Indigenous Studies and highlights information on the various organizations, events, and ongoing initiatives that are of interest to the indigenous community.