Locating Canada's Truth and Reconciliation Commission in Global Trends

 

By
Nicole Enns Fehr

March, 2010

This piece was written while the author was completing a Master of Arts degree in Peace Studies at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame.

On June 15, 2010 the peoples of Manitoba, Canada will gather together at the Forks. A traditional Aboriginal gathering space at the point of convergence of two rivers, the Forks is now in the centre of Winnipeg, one of Canada's cities with the highest Aboriginal population. There, those who experienced the Indian Residential School system either as students or workers will break the silence by participating in the first national event of Canada's Indian Residential Schools Truth and Reconciliation Commission.[1] This essay provides an overview of the Canadian Truth and Reconciliation Commission (TRC) and locates it in the global trend of TRCs, which are being used increasingly as a transitional justice tool. The Canadian TRC is a critical case for analysis due to the fact that it is located outside the normal political dimensions for the use of truth commissions, it is focused on historical crimes committed against an indigenous population, and it lacks a justice mandate.[2]

History of Turtle Island

The great north was not unoccupied upon the arrival of a few Europeans. A series of complex and colourful cultures swept over the mountains, planes, forest and frozen lands of Turtle Island, now known as Canada. The history of relationships between incoming settlers and the indigenous occupants of the land is a complex one, not entirely harmful,[3] but as land became scarce due to the influx of settlers and the notion of a modern nation became stronger, the relationship became framed by Europeans in the terms of an 'Indian problem.'

Treaties were signed across most of Canada, reserves were set up and Aboriginal peoples became subjugated to a class of non-citizenship they had never agreed to.[4] While Aboriginal interpretations of the treaties were that of agreements to share the land and to be two nations inhabiting one land; colonizers interpreted the treaties as a relinquishing of land and independence; the interpretation debate still rages today.[5] This is not a unique story as indigenous peoples worldwide experienced similar subjugation, although the particular methods varied.

One particularly devastating solution to the 'Indian problem' was residential schools. Built to "kill the Indian in the child," the schools were a systematic strategy to remove children from the influence of their families and communities.[6] European culture and religion was imposed on the children,[7] while at the same time punishing them for any usage of their own cultural ways or language.[8] Over the period of a century, more than 150,000 children were separated from their families for varying periods of time.[9]

The residential school system had a devastating impact on not only the students and their families, but on aboriginal communities. The long list of losses resulting from the schools includes loss of language, culture, and family and community relationships. Generational trauma is pervasive, resulting in high levels of domestic violence and addictions.[10] Racism is also pervasive in Canadian society, creating additional challenges for Aboriginal people seeking to navigate the educational, housing, and employment systems.[11] The historical treatment of Aboriginal peoples is now often characterised as cultural genocide.[12]

Indian Residential Schools Settlement Agreement

The Indian Residential Schools Settlement Agreement is the result of a more recent history of Aboriginal people's insistence that their voice be heard following a history of being rendered voiceless.[13] The 1.9 billion dollar Agreement was court approved on May 8, 2006 on behalf of more then 80 thousand residential school survivors.[14] The Agreement was signed between the Assembly of First Nations and Inuit representatives, the Government of Canada, and the Catholic, Presbyterian, United and Anglican churches that administered the schools on behalf of the government.[15] The Agreement included several major actions:[16]

  1. A truth and reconciliation commission with a mandate of five years.
  2. Common experience payment for individual survivors.
  3. An independent assessment process for those submitting physical or sexual abuse claims.
  4. Commemoration fund of $20 million for local and national communities.
  5. A healing fund for the Aboriginal Healing Foundation to continue its work.

On July 2008 Prime Minister Stephan Harper officially apologized to residential school survivors on behalf of the Government of Canada.[17] The apology was received with mixed feelings throughout Canada by survivors. The truth commission and reparation payments[18] were initiated almost congruently.

The goals of the truth and reconciliation commission are:

  • to acknowledge the experiences of survivors
  • to promote awareness in the Canadian public
  • to provide a safe and culturally appropriate space for storytelling
  • to "witness, support, promote and facilitate truth and reconciliation events at both the national and community levels"
  • to support commemoration
  • to identity sources and create a historical record
  • to produce a report with recommendations[19]

Locating the Canadian TRC in Global Patterns

Although the concept of a truth commission is by no means a new phenomenon, the Canadian case fits within the definition described below and follows some of the growing trends, but departs from political and situational trends related to commissions. The three areas of focus for this essay are the lack of the normative link to democratic political transition, the question of timing, and exclusion of justice from the mandate.

Until very recently, examination in scholarly writings of truth commissions' impact remained speculative based on experimental and theoretical grounds. Only recently has scholarship begun to systematically investigate the benefits and drawbacks of truth commissions.[20] As a result there is still significant debate over the definition of truth commissions. Each case has its uniqueness. The wide spectrum of names demonstrates this debate, the trends of which reflect a certain "normative evolution."[21] The most recent naming pattern includes a combination of the terms truth, reconciliation[22] and justice[23]. There is also no consensus over the goal of truth commissions or the methodology by which they are best carried out.[24] Dancy and Weibelhaus-Brahm point to Bronkhorst's definition as the most accurate and widely accepted, reflecting the most common patterns among commissions:

A temporary body, set up by an official authority (president, parliament) to investigate a pattern of gross human rights violations committed over a period of time in the past, with a view to issuing a public report, which includes victims' data and recommendations for justice and reconciliation.[25]

The Canadian Truth and Reconciliation commission, while fitting firmly into the definition above, is unique in several ways. First, it is the first commission of its kind to be mandated by a western government on a national level, as such it is not a transitional tool used to shift a nation towards democracy. Second, it is also the first to address historical colonial harms by focusing on children and aboriginal peoples. As such, "it will also set a precedent in terms of what Indigenous peoples may expect in determining any 'justice' from those states that consumed them."[26] Third, it does not include specific clauses for perpetrators, therefore failing to hold a justice mandate.

A Truth Commission without a Government Transition?

One of Dancy's and Weibelhaus-Brahm's criteria for truth commissions is that they be official sanctioned by the state.[27] What is not encompassed in the definition, but is reflected in normative trends, is the close connection between truth commissions, and political powersharing and shifts towards democratic governance. Forms of transitional justice, including truth commissions, have proliferated with the changing nature of democratic states and civil wars.[28] Since South Africa's highly publicized Truth and Reconciliation Commission, truth commissions have become a common component of political transitions following a civil war, usually mandated by presidential or legislative decree or included in a peace agreement.[29]

TRCs have typically been carried out by relatively new governments, brought together through powersharing agreements. Often both the powersharing arrangement and the truth commission have been mandated in the context of a peace agreement. Since 1989, twelve out of thirty comprehensive peace agreements have included provisions for a truth commission.[30] Weibelhaus-Brahm connects the mandating of truth commissiosn not only to powersharing agreements but particularly to countries transitioning to stable democracies.[31] As Dyzenhaus notes, commissions often result out of a need for political compromise because of two issues: first the oppressors often still maintain a certain amount of power, second those affected society members are too many for a nation's justice system to handle.[32] He therefore argues that truth commission are not adequate as a transitional mechanism to democracy.[33] This is an issue that is highly contested, but none the less, continues to be the trend.

The Canadian commission deviates significantly from these recent political patterns associated. As a western nation using the TRC as a tool to address historical wrongs, the commission is neither recovering from civil war, nor is the goal democratic transition. As such, Dyzenhaus' criticisms do not relate. With concern to powersharing, although there is no political powersharing agreement connected with the truth commission, the commission is part of an agreement in which the Canadian government makes concessions to a minority Canadian group. As such, the commission in Canada fits into the trend of using truth commissions as a tool employed to shift a power balance. It does so by raising awareness of atrocities committed against a certain group by another, in this case upon Aboriginal peoples by the Canadian government; resulting in validation of collective identity and experience, and an increased power in collective voice on both political and social platforms.

The Timing Challenge

There are two main timing questions that commissions face. The first is the time period investigated and the second it the time period mandated for the commission itself.

With concern to the time period under investigation, most truth commissions are mandated and carried out within two years of the transition out of the particular time period being investigated by the commissions.[34] Residential schools operated most prominently from the 1920s to the 1960s, although the last school was closed in 1996 and in all they operated over a hundred years.[35] The Canadian TRC, therefore, stands out as one of the few commissions conducted based on events that occurred longer than 30 years in the past. It fits into a new and growing category of "historical truth commissions."[36] This trend is connected to truth commissions becoming more accepted as adequate tools to address historical grievances. Nations have been employing them to investigate atrocities previously relegated to national amnesia.

With concern to the number of years investigated, the standard deviation in other studied TRC's is 14.5 years.[37] Canada's scope is well over that. This reflects an upward trend in the number of years investigated by truth commission mandates.[38] There are significant additional challenges that come with investigating historical atrocities, including the absence of a significant portion of victims and perpetrators due to death or relocation.

The second timing issue is how quickly to institute the commission after it is mandated and for how long. This is particularly an issue for those nations undergoing political transition and even more so, when a commission's success is linked to political success.[39] Canada, thankfully, does not face this challenge in the same manner. However, the Canadian commission has taken careful steps to maintain its independence.[40] The Canadian commission has a mandate of five years, a significant period in comparison to the majority of commissions mandated for under a year in length.[41] Once the decision was made to have a commission in Canada, there was a great push to move it forward quickly. This was partially due to the fact that many survivors have already passed on without their stories being recorded. The great distance from the operation period of the schools also plays into the lack of a justice mandate. Many of the perpetrators, school administrators and staff have passed on, as most were adults while the survivors were children. This leads to the question of justice, one that all commissions face.

A Mandate for Justice?

The Canadian TRC lacks any power to employ punitive measures or subpoena persons for truth telling.[42] Although the churches, as institutions, acting as government agents to carry out residential school policies, and the Canadian government have officially apologized and are contributing to the compensation payments, individuals who worked in the school systems can not legally be individually "named and shamed" as part of the truth commission.[43] Although the hope is that some perpetrators will come forward and present their stories for the sake of the victims, there is no way to guarantee that such will happen.

The issue of naming perpetrators is controversial among commissions. In Hayner's study of fifteen commissions, only four chose to name perpetrators publicly.[44] The naming issue is often connected with the need to purge political and military offices of those involved in the atrocities. On the other hand, not naming publicly during a truth commission is connected to ensuring due process for perpetrators, in that they have the right to not be labelled guilty until a fair trial has been conducted.[45]

Although the purging argument does not stand in Canada, there is some fear that the Canadian TRC will only be attended by victims, not perpetrators. The consequence would be a failing to document the entire truth, assert the importance of individual accountability, and to educate the broader Canadian society. There is also frustration that the lack of a justice mandate will fail to meet the needs of the aboriginal community. Accusations of a failure to demonstrate a strong justice mandate is not new to TRCs. Unlike the Canadian case of absentee perpetrators, most often the justice failure argument is connected to the offering of partial or full amnesty for perpetrators in exchange for the truth.

Conclusion

The Canadian Truth and Reconciliation Commission is a significant step in the development of truth commissions by expanding their use beyond the bounds of political transition circumstances. It is the first Western nation to use a truth commission in an effort to redress historical wrongs committed against indigenous groups, despite a significant lapse of time since the abuses took place. On the other hand, an inclusive justice mandate for individual perpetrators was purposefully excluded from the mandate, which will potentially result in only partial historical truth being revealed, and the lack of individual accountability.

The short and long term effects of the usage of a truth and reconciliation commission in Canada to address historical colonial harms will be unknown for some time to come. Upcoming analysis of the Canadian case will be an important addition to future truth commission comparative studies. More importantly, hopefully its goals of furthering reconciliation and understanding in Canada through truth telling and commemoration will come to fruition.

Bibliography

Brahm, Eric. "Truth Commissions." Beyond Intractability. Ed. Guy Burgess and Heidi Burgess. June 1, 2005. Conflict Research Consortium, University of Colorado, Boulder, Colorado, USA. http://www.beyondintractability.org/essay/truth-commissions/< /a>.

Brandwein, Jessica, Njuhi Chege, Mike Lindburg, and Fasihun Nisa-Qadri. "Recommendations for the Successful Creation and Implementation of the Truth and Reconciliation Commission of Nepal." Unpublished work. Class paper for Contemporary Peace Processes, University of Notre Dame.

Dancy, Geoff, Hunjoon Kim, and Eric Wiebelhaus-Brahm. "The Turn to Truth: Trends in Truth Commission Experimentation." Journal of Human Rights 9, no. 1 (Jan, 2010): 45-64.

Dyzenhaus, David. "Survey Article: Justifying the Truth and Reconciliation Commission." The Journal of Political Philosophy 8, no. 4 (2000): 470-496.

Government of Canada and Stephen Harper. Statement of Apology - to Former Students of Indian Residential Schools, July 11, 2008. http://www.ainc-inac.gc.ca/ai/rqpi/ap o/sig-eng.pdf.

Hayner, P. B. "Fifteen Truth Commissions--1974 to 1994: A Comparative Study." Human Rights Quarterly 16, no. 4 (1994): 597.

International Center for Transitional Justice. Canada: Submission to the Universal Periodic Review of the UN Human Rights Council. Fourth Session: February 2-13, 2009, September 8, 2008. http://www.ictj .org/static/UPR/UPR-Canada-ICTJ__September-2008.pdf.

--- . Factsheets: Canada's Truth and Reconciliation Commission, 2008. http://www.ictj.org/st atic/Factsheets/ICTJ-CanadaTRC-fs2008.pdf.

Miller, J. R. Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada. 3rd ed. Toronto; Buffalo: University of Toronto Press, 2000.

Million, D. "Felt Theory: An Indigenous Feminist Approach to Affect and History." Wicazo Sa Review 24, no. 2 (2009).

Neu, Dean E., and Richard Therrien. Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People. New York: Zed Books, 2003.

Truth and Reconciliation Canada website. "Schedule 'N': Mandate for the Truth and Reconciliation Commission," Indian Residential Schools Settlement Agreement (May 6, 2006). http://www.trc-cvr.ca/pdfs/SCHEDU LE-N_EN.pdf.

Where are the Children website, "Lifelong learners," http://www.wherearethechildr en.ca/flash/WATCSite.html accessed February 27, 2010.

Woolner, Christina. "Re-Storying Canada's Past." Beyond Intractability. Ed. Guy Burgess and Heidi Burgess, March 2009, Conflict Research Consortium, University of Colorado, Boulder, Colorado, USA. http://www.beyondintractability.org/casestudy/woolner-r e-storying.


[1] For details and updates on the Canadian Truth and Reconciliation Commission see their website at http://www.trc-cvr.ca.

[2] International Center for Transitional Justice, Canada's Truth and Reconciliation Commission (2008), http://www.ictj.org/st atic/Factsheets/ICTJ-CanadaTRC-fs2008.pdf (accessed February 27, 2010); D. Million, "Felt Theory: An Indigenous Feminist Approach to Affect and History," Wicazo Sa Review 24, no. 2 (2009).

[3] J. R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, 3rd ed. (Toronto; Buffalo: University of Toronto Press, 2000), 48-49.

[4] Ibid., 125.

[5] Dean E. Neu and Richard Therrien, Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People (New York: Zed Books, 2003), 70.

[6] Government of Canada and Stephen Harper, Statement of Apology - to Former Students of Indian Residential Schools (July 11, 2008), http://www.ainc-inac.gc.ca/ai/rqpi/ap o/sig-eng.pdf.

[7] Neu and Therrien, Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People, 105.

[8] Government of Canada and Harper, Statement of Apology - to Former Students of Indian Residential Schools.

[9] Ibid.

[10] International Center for Transitional Justice, Canada: Submission to the Universal Periodic Review of the UN Human Rights Council. Fourth Session: February 2-13, 2009, (September 8, 2008). http://www.ictj .org/static/UPR/UPR-Canada-ICTJ__September-2008.pdf; Where are the Children website, "Lifelong Learners," http://www.wherearethechildr en.ca/flash/WATCSite.html accessed February 27, 2010.

[11] See Christina Woolner's essay, "Re-Storying Canada's Past," at http://www.beyondintractability.org/casestudy/woolner-r e-storying for a more comprehensive history of the relationship between Aboriginal peoples and the Canadian government.

[12] Neu and Therrien, Accounting for Genocide : Canada's Bureaucratic Assault on Aboriginal People, 15-17.

[13] Christina Woolner, "Re-Storying Canada's Past." (Ed. Guy Burgess and Heidi Burgess, March 2009, Conflict Research Consortium, University of Colorado, Boulder, Colorado, USA).

[14] Million, Felt Theory: An Indigenous Feminist Approach to Affect and History, 76.

[15] Indian Residential Schools Settlement Agreement (May 8, 2006), http://www.residentialschoolse ttlement.ca/Settlement.pdf accessed February 21, 2010.

[16] Assembly of First Nations, "Key Elements of the Indian Residential Schools Settlement Agreement," May 2006, http://www.afn.ca/residentialschools/PDF/06-06-29-IRS-SettlementAgreementHighli ghts-Final.pdf accessed February 21, 2010.

[17] Government of Canada and Harper, Statement of Apology - to Former Students of Indian Residential Schools.

[18] It is important to note that the reparation payments were paid before the public truth commission events took place as one of the major criticisms of past truth commissions is the delay in monetary compensation for those who testify, while perpetrators who testify often receive amnesty directly following the testimony.

[19] Truth and Reconciliation Canada website. "Schedule 'N': Mandate for the Truth and Reconciliation Commission," http://www.trc-cvr.ca/pdfs/SCHEDU LE-N_EN.pdf accessed February 21, 2010, 1-2.

[20] Geoff Dancy, Hunjoon Kim and Eric Wiebelhaus-Brahm, "The Turn to Truth: Trends in Truth Commission Experimentation," Journal of Human Rights 9, no. 1 (Jan, 2010), 46.

[21] Ibid.

[22] South Africa, South Korea, East Timor, Peru, Serbia and Montenegro, Sierra Leone, Morocco, Liberia, Burundi, Chile, and Canada.

[23] Kenya, Haiti, Ecuador.

[24] Dancy, Kim and Eric Wiebelhaus-Brahm, "The Turn to Truth: Trends in Truth Commission Experimentation," 48.

[25] Ibid.

[26] Million, Felt Theory: An Indigenous Feminist Approach to Affect and History, 76.

[27] Dancy, Kim and Wiebelhaus-Brahm, The Turn to Truth: Trends in Truth Commission Experimentation, 50.

[28] See Eric Brahm's essay, "Truth Commissions," at http://www.beyondintractability.org/essay/truth-commissions

for a more comprehensive overview of truth commissions.

[29] P. B. Hayner, "Fifteen Truth Commissions--1974 to 1994: A Comparative Study," Human Rights Quarterly 16, no. 4 (1994), 636.

[30] Jessica Brandwein and others, "Recommendations for the Successful Creation and Implementation of the Truth and Reconciliation Commission of Nepal" (Class paper for Contemporary Peace Processes, University of Notre Dame, 2009). This data is taken from the Peace Accord Matrix study being conducted at the Kroc Institute for International Peace Studies. The data is not yet available publicly, but will be at an upcoming date and will be found at http://www.peaceaccords.org.

[31] Eric Brahm, "Truth Commissions," Beyond Intractability (Ed. Guy Burgess and Heidi Burgess, June 1, 2005, Conflict Research Consortium, University of Colorado, Boulder, Colorado, http://www.beyondintractability.org/essay/truth-commissions

, accessed February 27, 2010).

[32] David Dyzenhaus, "Survey Article: Justifying the Truth and Reconciliation Commission," The Journal of Political Philosophy 8, no. 4 (2000), 471.

[33] Ibid., 471.

[34] Dancy, Kim and Wiebelhaus-Brahm, The Turn to Truth: Trends in Truth Commission Experimentation, 57.

[35] International Center for Transitional Justice, Factsheets: Canada's Truth and Reconciliation Commission, 2008. http://www.ictj.org/st atic/Factsheets/ICTJ-CanadaTRC-fs2008.pdf accessed February 26, 2010.

[36] South Korea, Uruguay, and Panama are examples of TRCs conducted on events occurring previous to five year. Dancy, Kim and Wiebelhaus-Brahm, The Turn to Truth: Trends in Truth Commission Experimentation, 55-64.

[37] Ibid., 56.

[38] Ibid.

[39] Hayner, Fifteen Truth Commissions--1974 to 1994: A Comparative Study, 640. Philippines is an example of a truth commission that was never completed due to the loss of political support by the leading party.

[40] Currently the TRC is moving their headquarters to Winnipeg in an attempt to be closer to the survivor population and assure their independency by moving further away from a heavy-handed Canadian government.

[41] Ibid., 640-641, 645-646.

[42] Truth and Reconciliation Canada website, "Schedule 'N': Mandate for the Truth and Reconciliation Commission," http://www.trc-cvr.ca/pdfs/SCHEDU LE-N_EN.pdf accessed February 21, 2010, 2.

[43] International Center for Transitional Justice, Canada: Submission to the Universal Periodic Review of the UN Human Rights Council. Fourth Session: February 2-13, 2009, 4; Truth and Reconciliation Canada website. "Schedule 'N': Mandate for the Truth and Reconciliation Commission," 3.

[44] Hayner, Fifteen Truth Commissions--1974 to 1994: A Comparative Study, 648.

[45] Ibid.