Senator Murray Sinclair
Canadian Senator Formerly Justice of the Court of Queen’s Bench of Manitoba and recent Chair of the Truth and Reconciliation Commission of Canada
The Truth and Reconciliation Commission was formed as a result of the largest class action lawsuit in the history of Canada. It is an entity created by the court-approved Indian Residential School Settlement Agreement reached in 2007. The Settlement Agreement involves several Parties including the Government of Canada; Catholic and Protestant Churches; and the Survivors themselves.
The TRC is not a government commission. It reports to the parties and is subject to the supervision of the courts
Not all schools attended by Aboriginal children over the years are included in the Agreement. 140 schools are listed, and there is provision to ask for others to be added. The initial request to add a school is submitted to the government, which can agree or not, and there is a right to ask an oversight committee to review Canada’s decision. There is also a right to ask the courts to rule on the matter if you don’t like the results of those processes. The Government of Canada takes the position that only those schools where children resided and where it jointly or primarily managed the residential part of the school can be added. Requests have been made to add over 1,300 other schools to the Agreement but Canada has agreed to add only two. In addition, the courts have ordered that two more be added.
There are two compensation funds created by the Agreement, the first one being the Common Experience Payment, to which every student who resided at one of the Indian Residential Schools listed in the agreement can apply and receive a payment. The payment schedule provides that they are entitled to $10,000 for the first year of attendance, and $3,000 for each subsequent year. Approximately 105,542 persons have applied and 79,179 been approved for a Common Experience Payment. The total amount paid under CEP has been $1,619,631,106. The average payment has been $19,412
The second fund is for those who suffered a serious personal injury at the school. There is a list of injuries in the Agreement which they have to prove through testimony and other evidence such as medical reports, that they suffered at the hands of another person, whether a staff or a student, while on the grounds of the school.
Just less than half of those who attended residential schools have made claims for serious personal injuries. The total amount paid so far for the claims that have been resolved total approximately 2.3 Billion Dollars. The average claimant has received approximately $115, 259. There are still thousands of claims to be heard and resolved and it is predicted that claims may take until 2017 to be finalized.
The settlement agreement itself has created its own set of bad feelings among survivors. The exclusion of such a large number of schools attended by Aboriginal children at the insistence of the government but which the government did not manage or run itself or in partnership with a church entity, the exclusion of claimants who can’t testify due to death or infirmity, the treatment of survivors by lawyers, lawyer fees, the slow pace of hearings, and the process by which the claims are heard and resolved have all contributed to an entirely unforeseen set of issues calling for a reconciliation process outside of the TRC mandate, which may never occur.
In addition, students who attended residential schools but did not reside there are not eligible for the first level of compensation despite the fact that while in the schools, they were treated the same as the residents. Metis students who attended church run schools are also left out of the agreement.
This has created a significant class of former students excluded from the Agreement and its compensation processes, although we have included them in our processes. As a Commission, we take the view that, to be effective, any process of reconciliation must include all Aboriginal and non-Aboriginal persons in Canada. The road to reconciliation will not be easy so long as so many Aboriginal people continue to feel similarly aggrieved without having their grievances recognized.
When I say that the Settlement Agreement created the Commission, I mean that it exists because the Survivors negotiated for it. They agreed to set aside $60 million of money that would have gone into their compensation fund for the Commission’s purposes and to ask the Commission to complete its work within five years. Canada and the other parties are legally obligated to support the work of the Commission.
Our mandate originally was five years, and was to end on July 1, 2013. However, the first set of Commissioners appointed in 2008 were unable to continue and in the fall of 2008 the Commission Chair resigned, necessitating the appointment of new Commissioners. We were appointed effective July 1, 2009, with a renewed five year mandate to end on July 1, 2014. That mandate was extended by one year to June 30, 2015 due to the lack of timely document production to the Commission by the Government of Canada and the Catholic Church as was required by the Agreement.
The timeline was understandably short to begin with. Given the average age of survivors at the time of its negotiation, time was of the essence. It is also important that we complete our work – or at least as much of it as we can – while survivors are still around to see the results of their Commission. I feel strongly that as a Commission we should deliver a report to survivors by the end of the time period we have committed to.
However, it is clear that reconciliation cannot be achieved in five years, so we have taken the approach that our role is to identify what reconciliation means, where it should take us, and, in the context of these times, what the parties, as well as Aboriginal and non-Aboriginal people, need to do in order to get there.
The first obligation of the commission is to reveal to Canadians the full and complete story of residential schools. Our second obligation is to inspire and guide a process of healing and reconciliation in this country. Certain rights of the Commission and duties of the Parties are identified in the Agreement to clarify and facilitate those obligations.
The TRC is all about the education of children. We have been directed to investigate the federal government’s educational system for First Nations, Inuit and Metis children that was in place for over 125 years. Educational initiatives are implied in that part of our mandate which requires us to reveal to Canadians the true and complete story of that system. The story of the schools, in an obvious sense, is a lesson in education.
However, it is precisely because education was the primary tool of oppression of Aboriginal people, the and miseducation of all Canadians, that we have concluded that education holds the key to reconciliation.
Education is important.
All students, Aboriginal and non-Aboriginal, need to learn that the history of this country did not begin in 1492, or even with the arrival of Vikings much earlier. They need to learn about the Aboriginal nations that the Europeans met, about their rich linguistic and cultural heritage, about what they felt and thought as they dealt with such historic figures as Champlain, LaVerendrye and the representatives of the Hudson’s Bay Company. They need to learn why they negotiated treaties and that they negotiated them with purpose and integrity and in good faith. They need to learn why Aboriginal leaders and elders fight so hard to defend those poorly worded treaties and what they represent to them and why they have been ignored by Euro-Canadian settlers and governments.
They need to learn about what it means to have inherent rights, what those are for Aboriginal people, and the settler government’s obligations, in those areas where treaties have never been negotiated in the first place. They need to learn of the many issues that are ongoing and why.
They need to learn that the doctrine of discovery – the politically and socially accepted basis for European claims to the land and riches of this country – has never been accepted in Canadian courts and has been repudiated around the world, recently by the United Nations and the World Council of Churches.
But this is not enough. As I said before, mainstream Canadians see the dysfunction of Aboriginal communities but they have no idea how that happened, what caused it, or how government contributed to that reality through residential schools and the policies and laws in place during their existence. Our education system, through omission or commission, has failed to do that and misunderstanding, ignorance, and racism has resulted, on the one hand, and shame, humiliation, a lack of self-respect and anger has occurred, on the other.
The educational systems of this country bear a large share of the responsibility for the current state of affairs. But it can fix what it has broken.
What our education systems need to do is this: it must commit to teach Aboriginal and non-Aboriginal children – our children – how to speak respectfully to and about each other in the future. It begins with teaching them the truth about our history. Knowing what happened will lead to understanding. Understanding leads to respect.
Reconciliation is about respect. The relationship must be founded on mutual respect, but we must not lose sight of the threshold importance of ensuring that firstly, Aboriginal children are given an opportunity to develop their self-respect. That must come first.