Law students get in-depth look at residential schools litigation

Learning about residential schools and their effects on Indigenous Peoples across Canada is an essential part of the truth and reconciliation process to moving forward as a nation.

The residential schools were funded by the Canadian government as part of a concerted effort towards assimilating the Indigenous Peoples into Canadian culture. Throughout the latter part of the 19th and 20th century, the operation of these boarding schools had a devastating impact on Indigenous Peoples across Canada by systematically depriving Indigenous children of their cultures, languages, and connections to their home communities, often also exposing them to neglect and abuse. Immeasurable cultural harm occurred as a result of the actions of the Canadian government, which first came to light when Phil Fontaine made his allegations of abuse public in 1991, and culminated with the Indian Residential Schools Settlement Agreement, which recognized the widespread harm and provided a means for survivors to be compensated by the government. This settlement also created the Truth and Reconciliation Commission, which has contributed to awareness and knowledge of this event, the support of victims of residential schools, and the healing process moving forward.

A critical part of any civil suit is demonstrating that a harm has occurred. Although it is clear that many harms occurred as a result of the residential schools, this settlement was the first time where a social or cultural harm, such as intergenerational trauma and loss of language and culture, were recognized as a harm in a legal sense. The enormity of the harm done to the Indigenous Peoples and the extraordinarily large number of claimants necessitated a giant structure for resolution beyond anything that had been contemplated before in Canada’s legal history.

UCalgary brought together scholars in early stages

The University of Calgary Faculty of Law played a significant role in the settlement process by co-hosting a conference with the Assembly of First Nations (AFN) in March 2004 focusing on the question, “What will bring about reconciliation?” At that time, scholars and experts came from across the world to the University of Calgary in order to provide support and knowledge to a conversation about how to move forward. The consensus was that what the government was proposing at that time would be inadequate and counterproductive, and so the conference provided a basis, through the AFN Report authored by Professor Kathleen Mahoney, for what eventually became the Indian Residential Schools Settlement Agreement.

Today, students at the Faculty of Law are able to gain a unique perspective on the events leading up to this settlement and how this process worked through a new course, Legal Theory: Residential Schools Litigation (Law 579), and Mahoney’s first-hand experience. As the chief negotiator for the Assembly of First Nations for the largest settlement agreement in Canadian history, Mahoney and her team had an instrumental role in influencing the processes leading up to the settlement as well as the wide range of remedies it contained.

Students learn there are many paths to justice

In teaching students about the important issues that relate to this area in the Indigenous litigation course, Mahoney points out that, “Class action lawsuits almost invariably lead to settlements. The Indian Residential Settlement Agreement demonstrated however, that there are a wide range of remedies that can be negotiated using principles from Indigenous legal traditions, post colonial theory, feminist legal theory, critical race theory and restorative justice.

“The use of strong theoretical underpinnings that challenged traditional remedies, combined with authentic involvement of survivors resulted in a settlement that pushed the boundaries of the law to new places with wide-ranging results that are actually shifting societal norms,” she continues. “The remedies in the agreement such as compensation for loss of language and culture, the truth and reconciliation commission, healing funds, commemoration funding, memorialization, apologies, a research centre and intergenerational education resources that had never before been considered in Canada, are now available to be used as a precedent for future class-action settlements.

“This is a far cry from traditional personal injury damages which are the mainstay, and only remedy in most class-action lawsuits,” she adds.

Course teaches students how issues may affect future practice

There are many immeasurable benefits to taking a course such as this and bringing an awareness to a significant issue that continues to impact Canadian society. For law students, this course represents learning about more than simply the black letter law in this area, but the potential to gain perspective and understanding about how this type of issue may influence their practice in the future.

As third-year student Amy Matychuk notes, “Almost every area of law practiced in Canada in some way touches on Indigenous issues.” Whether in practice a law student will end up looking at the overrepresentation of Indigenous populations in the criminal court systems or Aboriginal land claims in oil and gas transactions, having a broad understanding of the effects of such a significant case on Indigenous Peoples across Canada will have a significant, positive impact for people.

The University of Calgary’s Indigenous Strategy will launch on Nov. 16.