AFTERWORD The Burden of Reconciliation

Legalism and Restitution

Arthur’s search for justice began in 1999, when Tom Stepper, of the Merchant Law Group, arrived in Gleichen, the small Alberta town immediately adjacent to the Siksika reserve. Stepper was there to find clients, and Arthur was one of several who signed up with the firm that evening, on a contingency basis. His decision to take legal action came at the close of a decade during which former students had begun to come forward in ever growing numbers, emboldened by a new public awareness of the reality of residential schools. In October 1990, Phil Fontaine, then the chief of the Assembly of Manitoba Chiefs, revealed on national television that he had been a victim of physical and sexual abuse while a student at Fort Alexander (Pine Falls) Residential School, expressing the hope that his own willingness to speak about his experiences would help others to do the same.² At the same time, abusers themselves were beginning to be exposed and convicted of physical and sexual assault, setting off what John Milloy describes as “a chain reaction of police investigations and further prosecutions.”³ Among those subsequently prosecuted was Arthur’s own abuser, William Peniston Starr. In 1993, Starr pleaded guilty to ten charges of sexual assault involving young boys at the Gordon Indian Residential School, in Saskatchewan, for which he was sentenced to four and a half years in prison. As later became clear, these ten boys, aged seven to fourteen, represented only a tiny fraction of Starr’s victims.⁴

At this time, survivors of abuse had no recourse other than the legal system, and the number of lawsuits steadily escalated, rising especially steeply at the end of the 1990s. By 2000, Arthur was but one of several thousand residential school litigants, and the threat of a successful class action suit loomed on the horizon. As J. R. Miller notes, in responding to individual lawsuits, the Canadian government adopted a policy of cross-suing the church that had been responsible for the residential school named in the case, an action that not only rendered the litigation more complex but “drove several of the churches to the edge of bankruptcy.”⁵ In addition to the financial implications, the sheer volume of lawsuits clearly posed a problem for the court system. As both the government and the churches recognized, it was critical to find a means to resolution that was equitable but that limited their financial exposure.

In 2001, Prime Minister Jean Chrétien created the federal Office of Indian Residential Schools Resolution Canada, which was charged with managing and resolving claims. This was followed, in November 2003, by the introduction of the National Resolution Framework, which set up an Alternate Dispute Resolution (ADR) process that provided individuals with an alternative to legal action.⁶ The ADR option proved to be cumbersome, however, and, inasmuch as his lawsuit was already underway, it was also of no use to Arthur. In fact, after the conclusion of his examination for discovery, in February 2003, Arthur heard nothing of significance from his lawyers, and, as he indicates in his letter to Tom Stepper of 12 May 2003 (see appendix A), he was already becoming more than a little irritated by the lack of progress. Little did he realize then that his wait had only just begun.

In May 2005, the Government of Canada undertook a formal move towards a collective solution to the legacy of residential schools. The government appointed the Honourable Frank Iacobucci, recently retired from the Supreme Court, to enter into negotiations with, on the one hand, legal counsel for the churches that had been responsible for running residential schools and, on the other, legal counsel representing former residential school students, along with a number of Aboriginal organizations, including the Assembly of First Nations and Inuit Tapiriit Kanatami. These negotiations culminated in May 2006, when the Indian Residential Schools Settlement Agreement (IRSSA) was approved by all the parties involved. Legally ratified in March 2007, the agreement went into effect on 19 September 2007. The IRSSA allocated $125 million to the Aboriginal Healing Foundation for measures to support community-based healing, as well as setting aside another $20 million for both national and community commemorative projects. It also established the Truth and Reconciliation Commission, which was provided with a budget of $60 million for the purpose of researching, recording, and preserving the experiences of residential school survivors.⁷

The Truth and Reconciliation Commission was granted no legal authority. Its principal role was not to redress abuse but to document it and, in so doing, to raise public consciousness about residential schools and their legacy, as well as to promote healing. The IRSSA also contained legal provisions for financial restitution, however, of two types. The first was the Common Experience Payment, which any former residential school student could claim, provided that he or she was still alive on 30 May 2005.⁸ Claimants were entitled to $10,000 for the first year of residential schooling and $3,000 for each subsequent year—although, as Arthur’s experience indicates, the government was not prepared to take the survivor’s word for it. Proof of attendance was required, in the form of school records, which were apt to be incomplete and/or inaccurate. Despite the good intentions presumably underlying the CEP, and despite many expressions of sorrow and concern, when it came down to cash, the government was evidently unwilling to include testimony from an Aboriginal person under the rubric of “truth.”

The second form of financial compensation—the Independent Assessment Process (IAP)—was intended for victims of physical and/or sexual abuse. The IAP, which was administered by the Indian Residential Schools Adjudication Secretariat, sought to establish a system that would allow compensation to be awarded to thousands of litigants according to a uniform set of criteria, and, by extension, would discourage former residential schools students from pursuing private litigation. Quite apart from the burden placed on the legal system, individual court settlements would create a welter of precedents, which could potentially be used to justify awards of increasing amounts. Under the IAP, the amount of compensation was calculated on the basis of the type of abuse suffered and its severity, as well as the long-term harms that resulted, with the various categories described in detail both in Schedule D of the settlement agreement itself, as well as in the Guide to the Independent Assessment Process Application.

Each category was assigned a range of points. For example, in the case of sexual abuse, claimants might be awarded anywhere from 5 to 10 points, for Sexual Abuse Level 1 (SL1), all the way 45 to 60 points, for Sexual Abuse Level 5 (SL5). Depending on its severity, physical abuse (PL) earned a claimant 11 to 25 points. “Harm resulting in some dysfunction” (H4) was good for 16 to 19 points, while 20 to 25 points were awarded for H5, “Continued harm resulting in serious dysfunction” (including psychotic disorganization, loss of ego boundaries, and suicidal tendencies). And so on. Once the assessment was complete, the points were totalled and their dollar value assigned. Claimants earning only 1 to 10 points would receive compensation in the range of $5,000 to $10,000, while claimants who earned more than 121 points would receive a payment in the range of $246,000 to $275,000 (the maximum payment).⁹ As the length of the Guide to the Independent Assessment Process Application—forty-four pages in its most recent version—might suggest, applying for IAP compensation on one’s own was no simple matter.¹⁰ Rather, claimants were advised to retain a lawyer, who would, of course, take a cut of the resulting settlement.

The Indian Residential Schools Settlement Agreement was the outcome not only of the negotiations initiated in May 2005 but also of a class action suit brought in August 2005 by the Assembly of First Nations on behalf of former students—“the biggest class action suit in Canada’s history,” as Arthur rightly describes it.¹¹ As in class action suits generally, individuals were given the right to opt out of the settlement, whether because they simply did not wish to receive compensation or because they would prefer to sue privately, in hopes of receiving a better settlement. Otherwise, all former students, even those who had already initiated a private lawsuit, were included in the settlement agreement. The government created a fund for the payment of legal fees, on the understanding that lawyers involved in the settlement would not charge their clients a fee in connection with CEP claims. In the case of claims for abuse, which would now be handled through the IAP, the government agreed to pay lawyers 15 percent of the settlement amount. However, individuals such as Arthur, who had already signed contingency agreements with lawyers, would be obliged to honour those agreements. If the 15 percent payment provided by the government did not cover the total legal fees accrued, the individual would be responsible for paying the balance out of his or her settlement.¹² Individuals were given until 20 August 2007 to opt out of the IRSSA. In the end, relatively few did, but there is no indication that the Merchant Law Group ever informed Arthur of his options.

Almost immediately upon the announcement of a settlement agreement in May 2006, Jane Summers, of the Merchant Law Group, sent a statement of claim on Arthur’s behalf to the Edmonton office of the Department of Justice (see appendix A), along with a transcript of Arthur’s examination for discovery. On the basis of his earlier testimony, Summers argued that Arthur should be awarded 40 points (roughly in the middle of the SL4 range) for having been sexually assaulted by William Starr and another 18 points (in the SL2 range) for the incident with Starr and Nelson Wolf Leg. She further proposed that Arthur be awarded 19 points for physical abuse (at the top of the PL range) and 15 points (the top of the H3 range) for the resulting harm, for a grand total of 92 points. The compensation proposed was $135,000, for general damages, plus an additional $3,500 for future psychological care.

As a glance at settlement amounts listed in the IRSSA’s Schedule D indicates, a total of 92 points falls in the range of 91 to 100 points, for which the recommended compensation is anywhere from $151,000 to $180,000. Arguably, then, the proposed settlement should have been more like $155,000, and it is unclear why Summers chose to ask for only $135,000—a sum that in fact falls below the midpoint of the range for 81 to 90 points ($126,000 to $150,000). Given that Schedule D was finalized in May 2006, it seems unlikely that she was unaware of the compensation amounts it listed. One can only guess, then, that she was hoping for an expeditious settlement, on the assumption that, if the proposed amount had been higher, this might have tempted a government adjudicator to contest the total of 92 points. Arthur is emphatic that the Merchant Group did not consult with him either on the point allocation or on the settlement amount. Had he known that Merchant Law was, in effect, undervaluing his claim, no doubt he would have had something to say on the subject.

Because Arthur had worked for a number of years in government, he was probably somewhat better acquainted with legal processes than were most residential school litigants. But, of course, he was not a lawyer. In the end, he was at the mercy of his solicitors, who were employed by a firm that was processing thousands of other cases. Although Arthur remembers Stepper—who left the Merchant Law Group in 2003—as promising to take his case to court if the settlement offered seemed inadequate, it seems doubtful that the firm would have pursued such a course of action. It was in the best interests of legal counsel to come to a reasonable cash settlement at the discovery phase, rather than waste further time, energy, and money pursuing a court decision that might not be significantly better and could even be worse.

Regardless of an individual claimant’s degree of familiarity with the legal system, however, there remained the obvious imbalance of power embedded in the ongoing colonial relationship between Canada’s Aboriginal peoples and the federal government, with its intricate and daunting bureaucracy. Like thousands of other survivors, Arthur was fighting, not human opponents, but vast institutions, and the treacle-like pace of the process conveyed a message of disregard for the claimant that arguably worked to the advantage of the defendants. The system moved so slowly that by the time Arthur was offered a settlement, he was fed up with waiting. As he puts it, “I just wanted to get my money and get out of there as fast as I could.” When he asked why, if a fund had been established to reimburse legal firms for their expenses, Merchant Law was still keeping 30 percent of his settlement, he did not receive a clear answer.

The bitterness that Arthur still feels is palpable in his account of his lawsuit. “I and many other survivors were treated without regard of our dignity and self-esteem,” he writes, “making us feel that we are still subhuman and of little value to the country.” Arthur is bitter in part about the amount of his settlement, which, in the end, was not the $135,000 that Summers originally requested but only $105,000—with Arthur ending up with a mere $69,000.¹³ As he points out, it appears that those who pursued settlements entirely through the IAP or through the ADR did considerably better. The fact that the government had the audacity to expect him to pay the GST on the settlement only added insult to injury.

But he is also bitter about the whole approach, which he views as an attempt to buy the Indians off, making him feel “like a whore” for accepting the money at all. Arthur’s reaction well illustrates not only the colonization implicit in imposing Western legal principles on people who have their own set of legal traditions, founded on a different way of conceptualizing the world, but also its consequences. Once one accepts the idea that a dollar value can be placed on suffering, the all but inevitable result is competition, in which those who have suffered are encouraged to compare and contrast the size of their suffering, as measured in a sum of money, with the suffering of others.

For roughly a decade, the Merchant Law Group and the Government of Canada have been locked in a legal battle, with the government fighting to recover $25 million paid to the firm in 2008 by court order. It is a war that has no heroes. Having already looked for ways to limit the size of settlements, the government is hoping to avoid having to pay Merchant Law for its services, on the grounds that the firm may (or may not) have been guilty of fraud. For its part, Merchant Law is unable to produce records that would demonstrate that its billing practices were fair and accurate. Inasmuch as allegations on both sides remain unproven, the dispute seems unlikely ever to have a clear resolution.¹⁴ Striking by its absence from this legal saga, however, is evidence of concern for residential school survivors who may have been cheated out of money owed to them. They appear to have been left in the dust, and the spirit of reconciliation is nowhere in sight.

Apology as Insult

The legal system, which assumes the existence of an adversarial relationship between two parties, has little use for apologies. To apologize is to accept responsibility for wrongdoing: it is an admission of guilt. For this reason, defendants are routinely advised to avoid offering any sort of apology. And yet, as we all know, the process of reconciliation often begins with an apology. In Apologising for Serious Wrongdoing, a report prepared in 1999 for the Law Commission of Canada, Susan Alter observes, “For a victim, an apology is often considered to be the key that will unlock the door to healing. In light of the importance of apologies to survivors of institutional abuse, it is unfortunate and disturbing that traditional justice processes foster intransigence, disrespect and lack of remorse on the part of wrongdoers.”¹⁵ In this regard, the IRSSA was at odds with itself. The processes it put in place to provide financial restitution operated within the universe of the legal system, with claimants obliged to present proof of injury and, in the case of the IAP, to rely on lawyers to make a case for the gravity of that injury. At the same time, the settlement agreement set up the Truth and Reconciliation Commission and included a generous grant to the Aboriginal Healing Foundation.

The Aboriginal Healing Foundation had come into existence at the end of March 1998, as part of an earlier government effort to redress the wrongs done to Canada’s Indigenous peoples. In January 1998, Jane Stewart, the minister of what was then the Department of Indian Affairs and Northern Development, delivered an address announcing the release of Gathering Strength—Canada’s Aboriginal Action Plan, her department’s response to the 1996 report of the Royal Commission on Aboriginal Peoples. Included in her speech was a “Statement of Reconciliation,” which also appeared in the printed document. In it, the Government of Canada acknowledged “the role it played in the development and administration” of residential schools. The statement also contained the following apology:

Particularly to those individuals who experienced the tragedy of sexual and physical abuse at residential schools, and who have carried this burden believing that in some way they must be responsible, we wish to emphasize that what you experienced was not your fault and should never have happened. To those of you who suffered this tragedy at residential schools, we are deeply sorry.¹⁶

Stewart’s speech was the first formal apology offered on behalf of the Canadian government. But it would not be the last.

In her report to the Law Commission of Canada, Alter lays out a blueprint for a successful apology, one that satisfies the ultimate goal of making amends, namely, “to restore dignity and social harmony.” Citing psychiatrist Aaron Lazare, Alter notes that apologies may be prompted by four possible motives: “(1) to salvage or restore a damaged relationship; (2) to express regret and remorse for causing someone to suffer and to try to help diminish their pain; (3) to escape or reduce punishment; and (4) to relieve a guilty conscience.”¹⁷ Multiple motives may be at work in an apology, of course: the question is one of priorities. Someone receiving an apology will naturally be alert to the apparent motive(s), and the perceived sincerity of the apology will depend on whether the motives seem to the recipient relatively altruistic or relatively self-serving. In addition, in the case of an apology delivered on behalf of an institution, the status of the person chosen to offer it serves as a signal of its relative importance.

Arthur received two letters of apology, one in November 2006 from the Anglican Church and another, in March 2007, from Indian Residential Schools Resolution Canada (see appendix B). The first was signed not by the primate—at the time, the Most Reverend Andrew Hutchison—but by the general secretary of the church, Archdeacon Michael Pollesel. Similarly, the second came from the office of the deputy minister, Andrew Harrison, rather than from the minister himself. Aside from the salutation and the name of the residential school in question, neither apology contains anything specific to Arthur: both read like boilerplate letters.

Of the two, the letter from the government is the more straightforward. It is perhaps most notable for its somewhat sanctimonious concluding paragraph, which expresses the hope that, by recounting his painful experiences, Arthur will achieve “a measure of comfort,” enough to enable him and his family to “move forward” with their lives. Given that, as a general rule, adult human beings do not wish for the impossible, simply by giving voice to this hope the letter implies that the hope is a reasonable one—that its fulfilment lies within the realm of possibility. In so doing, it subtly projects blame onto the victim. If, having spoken out about his pain, Arthur in fact does not move forward, he will have failed in his effort to attain a goal that should be within his reach. Given that the effects of serious trauma are not so easily dislodged, this hope for a happy ending seems disingenuous—if also thoroughly understandable. After all, if this wish were to come true, it would certainly do much to relieve the government of its guilt. The letter also contains three references to “you and your family,” a phrase that contains a whiff of cultural insensitivity, as it seems to suggest not an extended family but the nuclear, white variety (presumably intact).

The letter from the Anglican Church is considerably more equivocal. Almost imperceptibly, its central paragraph effects a shift in emphasis from the personal to the general—from Arthur as an individual to the abstract mass of children who attended residential schools, among whom Arthur was clearly but one. By pointing out that the church never had “any intention to cause harm or suffering,” the letter qualifies its apology, offering something closely akin to an excuse. In addition, it blames the need for an apology on the “few staff” who “took advantage” of the children, in the form of physical or sexual abuse, and then goes on to lament that “your school years, which should have been filled with fun and learning, were instead filled with fear and dread.” Implicit in this statement is the suggestion that the standard experience of children at residential schools was one of “fun and learning,” with “fear and dread” caused only by a few bad apples. In fact, when one considers that some 38,000 living residential school survivors filed claims under the IAP, one can only conclude that these bad apples kept themselves busy. On the whole, the letter seems concerned less with apologizing than with projecting an image of the church as a worthy and caring institution.

Pollesel’s letter makes an especially poor comparison to the apology offered in August 1993 by Archbishop Michael Peers, the primate of the Anglican Church prior to Hutchison. His was a personal apology, delivered at the National Native Convocation directly to those for whom it was most immediately intended. “I have heard with admiration the stories of people and communities who have worked at healing,” Peers said, “and I am aware of how much healing is needed. I also know that I am in need of healing, and my own people are in need of healing, and our church is in need of healing. Without that healing, we will continue the same attitudes that have done such damage in the past.” His language of his apology was simple:

I am sorry, more than I can say, that we were part of a system which took you and your children from home and family.

I am sorry, more than I can say, that we tried to remake you in our image, taking from you your language and the signs of your identity.

I am sorry, more than I can say, that in our schools so many were abused physically, sexually, culturally and emotionally.

“We failed you,” Peers said. “We failed ourselves. We failed God.”¹⁸

Peers’s apology also offers an instructive counterpoint to Stewart’s apology, delivered five years later on behalf of the Canadian government. “Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride,” Stewart said, perhaps understating the case. Acknowledging that “attitudes of racial and cultural superiority led to a suppression of Aboriginal culture and values,” she went on to express “profound regret for past actions of the federal government which have contributed to these difficult pages in the history of our relationship together” and to speak of the need “to find ways to deal with negative impacts that certain historical decisions continue to have in our society today.” She also spoke of of the importance of learning from the past. Noting that “reconciliation is an ongoing process,” she declared that “in renewing our partnership, we must ensure that the mistakes which marked our past relationship are not repeated.”¹⁹

In contrast to Peers’s apology, which was generally perceived as heartfelt, Stewart’s statement seemed to lack sincerity. As is often the case in government communications, the language is abstract and guarded. While no doubt the “suppression of Aboriginal culture and values”—or, as some might say, the oppression of Aboriginal peoples—is “not something in which we can take pride,” this falls short of saying, for example, that this history is “something of which we are deeply ashamed.” Her repeated emphasis on the past seems to imply that the government’s assimilationist policies (including, of course, residential schools) were grounded in unenlightened attitudes that have since been abandoned, while it also asserts that these “mistakes” are a matter of history—a feature of “our past relationship.” One might also ask what “partnership” once existed that has now to be renewed.

The plan that Stewart unveiled, Gathering Strength, received a mixed reception, ranging from cautious optimism to outright skepticism.²⁰ In contrast to the very specific recommendations laid out in the report of the Royal Commission on Aboriginal Peoples, the plan was rather broad, consisting largely of promises. In her accompanying address, Stewart acknowledged that “our words must be supported by concrete actions,” and yet the plan itself, while brimming with statements of good intention, did not itself amount to concrete action. As the months went by following its introduction, optimism began to wane, and not only within the Aboriginal community. In its annual report for 2000, the Canadian Human Rights Commission argued that, while some progress in the area of Aboriginal rights had been made over the past decade, “it has been too little and too slow.” Pointing out that Gathering Strength was now “several years old,” the report deemed it “discouraging that many of the Royal Commission’s recommendations have yet to be given the consideration they deserve.”²¹

A little over a decade after Stewart offered her “Statement of Reconciliation,” the Canadian government made a second attempt at an apology. On 11 June 2008, Canada’s then prime minister, Stephen Harper, delivered a speech in the House of Commons in which he formally apologized to Canada’s Aboriginal peoples for the harm done to them by the residential school system. “The treatment of children in Indian Residential Schools is a sad chapter in our history,” he began, echoing Stewart’s remarks. He went on to describe the wrongs that had been committed and to acknowledge that the residential schools policy “has had a lasting and damaging impact on Aboriginal culture, heritage and language.” As if in tacit admission that Stewart’s earlier effort had failed, he also spoke of the government’s recognition that “the absence of an apology has been an impediment to healing and reconciliation.” Then, addressing “the approximately 80,000 living former students, and all family members and communities,” he offered a new apology:

The Government of Canada now recognizes that it was wrong to forcibly remove children from their homes and we apologize for having done this. We now recognize that it was wrong to separate children from rich and vibrant cultures and traditions, that it created a void in many lives and communities, and we apologize for having done this. We now recognize that, in separating children from their families, we undermined the ability of many to adequately parent their own children and sowed the seeds for generations to follow, and we apologize for having done this. We now recognize that, far too often, these institutions gave rise to abuse or neglect and were inadequately controlled, and we apologize for failing to protect you.

If solely for its use of repetition, this apology bears an unmistakable resemblance to that of Michael Peers fifteen years earlier.

Admitting that the burden of responsibility is “properly ours as a Government, and as a country,” Harper concluded by pointing to the Indian Residential Schools Settlement Agreement, describing it as “new beginning and an opportunity to move forward together in partnership.” In his closing words, he declared that the Truth and Reconciliation Commission would contribute to “forging a new relationship between Aboriginal peoples and other Canadians, a relationship based on the knowledge of our shared history, a respect for each other and a desire to move forward together with a renewed understanding that strong families, strong communities and vibrant cultures and traditions will contribute to a stronger Canada for all of us.”²²

Alter argues that, to be successful, an apology must contain five fundamental elements: an acknowledgement of the wrong done; the acceptance of responsibility for that wrong; the expression of “sincere regret and profound remorse”; an assurance that the wrong will not recur; and “reparation through concrete measures.”²³ Although someone speaking for a government can express regret and remorse, a government is an abstract entity and, as such, cannot feel anything. How far Stephen Harper (or Jane Stewart) actually experienced a sense of regret and remorse, no one can really know, and, in any case, it is largely beside the point. Harper did not commit the wrongs himself, which were also far removed in time from the apology he offered. When a government apologizes, the sincerity of its regret and the depth of its remorse will ultimately be judged by the final of the five elements: concrete reparations. And, in this respect, the Canadian government has so far done poorly.

The failure of the Harper government to follow through on the implications of its apology to residential school survivors has been widely recognized. “It was as if the prime minister thought that the apology completed the agenda and he could close the residential school file,” Miller comments. He continues:

His government took no more measures to implement the commitments in the apology, folded the unit of the civil service that had had responsibility for residential school matters back into the mammoth Indian and Northern Affairs Canada department, and short years later gave notice that it would not extend the life of the Aboriginal Healing Foundation that had been created in 1998 to help survivors and communities cope with the damage residential schooling had caused.²⁴

The government also adopted what one legal commentator, writing in June 2013, described as “a strategy of delay” with respect to the Indian Residential Schools Settlement Agreement, “litigating for narrow interpretations of the Agreement, refusing to provide documents to the Truth Commission, and imposing of arbitrary new rules on the process”—a trend she characterized as “moving in the opposite direction from reconciliation.”²⁵

However moving Harper’s apology may have been at the time (and reactions to it varied), his government’s subsequent actions successfully rendered it hollow. Once again, promises were made and broken: there was little sign of a “new beginning” or the promised “partnership.” Indeed, despite Harper’s closing vision, it is debatable how far Aboriginal peoples are prepared to view themselves as “Canadians” whose history is “shared” with that of their oppressors. As Alter observes, an apology that is found to be “insincere, insufficient or otherwise unacceptable can deal a crushing blow to an emotionally scarred survivor.”²⁶ It can, in other words, compound the original injury, deepening resentment and a sense of betrayal, rather than serving as a step towards reconciliation.

The Talking Cure

On 18 December 2015, the Truth and Reconciliation Commission of Canada closed its offices. The commission left in its wake an array of publications, including the six volumes of its final report, all now available on the website of the National Centre for Truth and Reconciliation (NCTR), which was created to continue the work of the commission.²⁷ In addition to other educational projects, the NCTR has compiled a digital archive that contains statements from some 7,000 survivors, approximately 5 million documents from churches, schools, and the government, an estimated 35,000 photographs, and audio and video recordings of oral testimony and other events sponsored by the TRC—upwards of 200 terabytes of information. The NCTR describes the archive as a “sacred bundle that the NCTR will protect and preserve for all time, for the benefit of all Canadians.”²⁸ According to its mandate, the organization’s goal is, in part, to ensure that “survivors and their families have access to their own history.”²⁹

It is difficult to know what to make of such statements. The assumption seems to be that, without the work of the Truth and Reconciliation Commission and its successor, survivors and their families would not have access to their own history. Undeniably, this “sacred bundle” will be of enormous benefit to researchers and educators. Yet one wonders precisely who, apart from them, will read these millions upon millions of words or how a digital archive will benefit First Nations individuals living on reserves that lack safe drinking water, to say nothing of high-speed Internet connections. In other words, one begins to suspect that this massive record of Indigenous experience has relatively little to do with the realities facing the descendants of those whose testimony it preserves—and, in so preserving, tacitly consigns to the realm of history.

Canada’s Truth and Reconciliation Commission was, as Ronald Niezen notes, unusual in a number of respects—in its focus on the abuse of children, for example, and on the psychological impact of institutional trauma. It was also deliberately shorn of legal power, and, unlike many such commissions, was not associated with war crimes or with a change of regime. Instead, the TRC was “an outcome of civil litigation.”³⁰ As Kim Stanton puts it, “the TRC was not created out of a groundswell of concern about IRS survivors by the public,” and, as a result, it was obliged to confront “the need to prompt Canadians to invest in and take ownership of a process that they did not instigate.”³¹ Insofar as the TRC’s mission was one of public education, it first had to convince the Canadian public of the value of the proceedings. How far it succeeded in this is a matter of debate. After an initial burst of media attention, public interest predictably waned, and non-Aboriginal attendees at the hearings were apt to be people who already had some knowledge of residential schools and were sympathetic to the situation of survivors.

As part of its mandate, the NCTR similarly seeks to ensure that “the public can access historical records and other materials to help foster reconciliation and healing.” But, quite apart from restrictions on access required in the interests of privacy, one also wonders how many members of the public will take the time not merely to access these materials but to reflect on them. That is, one wonders about the mechanism whereby such archiving will contribute to reconciliation, if by “reconciliation” we mean the process of achieving some measure of emotional rapport and mutual understanding between settler Canadians and those they so grievously injured. Rather, this massive exercise in the documentation of abuse seems to share something of the character of rituals of expiation. If we (the colonizers) can amass a sufficiently thorough catalogue of our sins, thereby offering a full confession, surely then our guilt will be absolved. We will then be reconciled to ourselves, at which point we can breathe freely again, put the past behind us, and assume no further responsibility for present-day realities.³²

Implicit in the TRC process was the assumption that telling one’s story is the first step towards healing—what Niezen describes as the commission’s “goal of healing through self-revelation.”³³ The notion that, left unspoken, secrets fester and make us ill has acquired the status of common wisdom (at least in Western cultures), as has its corollary, namely, that personal unburdening is cleansing and cathartic. And yet, as Niezen points out, the ubiquitous presence of health support workers at the TRC hearings testified to the commission’s recognition that telling one’s story (or hearing the stories of others) can serve as a “trigger,” bringing about an emotionally devastating reawakening of the original trauma. Special concern focused on Private Statement Gathering, sessions during which a survivor could delve into his or her memories in as much detail as desired—a process the commission identified as “a locus of particularly intense emotion with an accompanying high risk of sudden-onset mental health crises.” As a result, health support workers were “on hand to sit with statement providers throughout their interviews,” and the interviewee could also invite “personal supports” to be present.³⁴

Arthur Bear Chief chose not to take part in the TRC hearings. He had already told his story, in circumstances so humiliating as to transform the process of self-revelation into a further act of abuse. Counsellors who work with victims of trauma are well aware of the possibility of retraumatization, and one could very reasonably argue that lawyers should have at least a passing acquaintance with the concept—or, if nothing else, have enough common sense to recognize that recounting experiences of serious physical and emotional abuse could be quite upsetting. One could, in fact, argue that it was morally irresponsible to demand that Arthur relive his experiences without prior advice from a counsellor, who should also have been present in the room. As Arthur’s account of his reaction illustrates, the risk of suicide is very real. Not that voluntarily testifying at TRC hearings was anything equivalent to Arthur’s examination for discovery, of course, but one can readily understand why he might be reluctant to participate in the proceedings.

Another factor may, however, have been at work in the decision of some survivors to forgo participation in TRC events. In the vast documentary record generated by the TRC, the individual voice is easily overwhelmed. Although comfort can be found in the realization that one was not alone in one’s suffering, the generalization of pain tends to deflect attention from the lived reality of individual trauma. Indeed, the focus of the commission arguably fell on collective trauma and, by extension, on collective, rather than personal, healing. As Niezen observes, it is unclear whether “giving testimony can maintain the effects of a sense of common belonging in the absence of consistent, effective therapeutic support.”³⁵ In this respect, the purpose of self-revelation must be interpreted not in the context of individual healing, of the sort associated with the confession of sins, but as a means of giving voice to the experience of historical trauma, which is, in its very nature, the outcome of shared suffering. In other words, self-revelation must be understood as part of a process in which those victimized by the wrongs of others are finally given an opportunity to speak out—to arrive at a collective truth and thus to create a counternarrative, from which they can hopefully draw strength.

To those who stand outside a community of sufferers, those who have no experiential basis of understanding, the notion of historical trauma tends to remain an abstract concept, lacking tangibility. Perhaps for that reason alone, its impact is far more easily ignored or dismissed than that of an individual voice, one that speaks of personal pain. While Arthur’s narrative well illustrates the manner in which trauma is transmitted across generations, its power attaches more to its capacity to concretize historical trauma, to give it shape and substance. His memories are also offered in the spirit of Indigenous storytelling, which is always a two-way process that places a burden of responsibility on the listener.

In any oral tradition, storytelling is, above all, a mode of teaching. As such, storytelling—or what Jo-ann Archibald aptly terms “storywork”—is oriented more towards the future than the present: stories are told for future generations. Even when the story told is drawn from personal experience, its recounting is intended not to address the current emotional needs of the teller but to impart knowledge, knowledge that may someday evolve into wisdom. It is expected that those who listen to a story will do so respectfully and thoughtfully, giving the speaker’s words their undivided attention. It is also the responsibility of listeners to reflect on the story, seeking to understand and deepen its message in relation not only to their own lives but to the network of relationships within which human beings exist. In Blackfoot Ways of Knowing, Betty Bastien explains that knowledge consists in “communicating with the natural and cosmic world of Siksikaitsitapi and integrating the knowledge that transpires into one’s own being.” As she observes, “knowing results from being aware, observant, and reflective.”³⁶

Such an understanding of story stands in obvious contrast to contemporary notions of “telling one’s story” as a means of personal catharsis, in which the focus falls on the teller, while the listener (assuming one is present at all) is expected to do little other than offer expressions of sympathy.³⁷ In traditional oral storytelling, teller and listener exist instead in a reciprocal relationship, and both are reshaped, however subtly, by the exchange. By retelling the story within the context of his or her own experiences, the listener imbues it with new life, with the results that the meaning of the story is endlessly reinterpreted and reconfigured. It is no surprise that, in addition to writing down his memories, Arthur recounted them orally as well, in the presence of a listener, often elaborating on what he had initially written. He understood, whether consciously or not, that storytelling is an open-ended dialogue, a process that may have a beginning but ideally will not have an end.

It may seem that, by choosing to publish his story as a book, Arthur has frozen it in time. Although his journey of healing is far from over, readers cannot know its future. But then no story is ever complete. Arthur’s lived story will evolve, and so will his written story, which will have its own future. It will reach a far wider audience, and it will affect others in ways that cannot be predetermined. Like listeners, readers have a responsibility not only to approach Arthur’s story with respect and open themselves up to his words but to ponder the relationship between his story and their own lives—to find in his experiences truths about themselves. Readers are also responsible for “retelling” the story by sharing what they learn with others. In this way, what is written will become oral. It will not be tucked away in an archive. As any story should, it will live and grow—and in that there is hope of reconciliation.

Frits Pannekoek

Notes

1. 1For a detailed overview of the report, see “Highlights from the Report of the Royal Commission on Aboriginal Peoples,” Indigenous and Northern Affairs Canada, https://www.aadnc-aandc.gc.ca/eng/1100100014597/1100100014637 (last modified 15 September 2010). See also Mary C. Hurley and Jill Wherrett, “The Report of the Royal Commission on Aboriginal Peoples,” In Brief, 4 October 1999 (revised 2 August 2000), Parliamentary Research Branch, Library of Parliament, http://www.lop.parl.gc.ca/content/lop/researchpublications/prb9924-e.htm.
2. 2Fontaine spoke about his experiences in an interview with Barbara Frum on the CBC program The Journal, which is available in the CBC Digital Archives, http://www.cbc.ca/archives/entry/phil-fontaines-shocking-testimony-of-sexual-abuse. The Fort Alexander school, located in southeastern Manitoba on what is today the reserve of the Sagkeeng First Nation, was run by the Missionary Oblates of Mary Immaculate. Just prior to his interview with Frum, Fontaine had spoken with representatives of the Catholic Church about the need to investigate abuses at the school.
3. 3John S. Milloy, A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999), 297–98. As Milloy notes, the first wave of convictions, in 1989 and 1990, coincided with revelations surrounding the physical and sexual abuse of non-Aboriginal children at an orphanage in St. John’s, Newfoundland, the Mount Cashel Boy’s Home, and at the St. Joseph’s Training School, in Alfred, Ontario, both operated by a Catholic lay order known as the Christian Brothers. Aboriginal accounts of abuse at residential schools thus dovetailed with mounting concern, among non-Aboriginal Canadians, about the victimization of children in institutional settings (298).
4. 4Starr served as the director of the residential school on the Gordon reserve (located to the north of Regina) from 1968 to 1984. On the Gordon scandal, see Murray Mandryk, “Uneasy Neighgours: White-Aboriginal Relations and Agricultural Decline,” in Writing Off the Rural West: Globalization, Governments and the Transformation of Rural Communities, edited by Roger Epp and Dave Whitson (Edmonton: University of Alberta Press and the Parkland Institute, 2001), 210–11.
5. 5J. R. Miller, “Residential Schools and Reconciliation,” ActiveHistory.ca, 19 February 2013, http://activehistory.ca/papers/history-papers-13/, para. 9. For contemporary reportage, see, for example, James Brooke, “Indian Lawsuits on School Abuse May Bankrupt Canada Churches,” New York Times, 2 November 2000, http://www.nytimes.com/2000/11/02/world/indian-lawsuits-on-school-abuse-may-bankrupt-canada-churches.xhtml?_r=0.
6. 6On the ADR process, see Jennifer J. Llewellyn, “Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR and Restorative Justice,” University of Toronto Law Journal 52, no. 3 (Summer 2002): 253–300. The ADR process offered two models, with claimants obliged to choose one or the other. Model A covered claims for serious physical abuse (defined as abuse resulting in injuries that lasted more than six weeks and/or required hospitalization or sustained medical treatment) and sexual abuse; Model B was intended for claims involving less serious physical abuse and/or wrongful confinement. Awards under Model A ranged from $5,000 to $245,000; the maximum award under Model B was $3,500. “Apply for Alternative Dispute Resolution,” n.d., http://www.survivingthepast.ca/robohelp/aboriginalResidentialAbuse/!SSL!/WebHelp/3-4.1_Apply_for_Alternative_Dispute_Resolution.htm.
7. 7For an overview of the settlement, see “Indian Residential Schools,” Indigenous and Northern Affairs Canada, https://www.aadnc-aandc.gc.ca/eng/1100100015576/1100100015577 (last modified 24 August 2016).
8. 8The IRSSA set aside $1.9 billion for the CEP, with an application deadline of 19 September 2011. “Common Experience Payments,” Indigenous and Northern Affairs Canada, http://www.aadnc-aandc.gc.ca/eng/1100100015594/1100100015595 (last modified 22 April 2013). As of 31 March 2016, payments totalling upwards of $1.6 billion ($1,622,422,106) had been made. “Common Experience Payment (CEP) Map,” Indigenous and Northern Affairs Canada, http://www.aadnc-aandc.gc.ca/eng/1353514851338/1353514981910 (last modified 5 June 2016).
9. 9For a full description, see Schedule “D”: Independent Assessment Process (IAP) for Continuing Indian Residential Schools Abuse Claims, May 2006, http://www.residentialschoolsettlement.ca/schedule_d-iap.pdf, 3–6. The deadline for applications was 19 September 2012. A total of 38,094 claims were received, of which 35,730 (94%) had been resolved as of 31 August 2016. At that point, payments totalled $3.048 billion. “Adjudication Secretariat Statistics,” Indian Residential Schools Adjudication Secretariat, 31 August 2016, http://www.iap-pei.ca/information/stats-eng.php.
10. 10See Guide to the Independent Assessment Process Application, v3.2, 4 April 2013, http://www.iap-pei.ca/information/publication/pdf/pub/iapg-v3.2-20130404-eng.pdf, esp. 34–37.
11. 11On the AFN’s action, see Paul Barnsley, “AFN Launches Class Action Lawsuit,” Windspeaker, September 2005, 8, http://www.ammsa.com/publications/windspeaker/afn-launches-class-action-lawsuit.
12. 12See the “The Indian Residential Schools Settlement Has Been Approved,” http://www.residentialschoolsettlement.ca/detailed_notice.pdf, 4 (question 9) and 8 (questions 32–34). This is the “Detailed Notice” available on the website of the Indian Residential Schools Adjudication Secretariat, http://www.residentialschoolsettlement.ca/english_index.xhtml, where one can also find a copy of the full settlement agreement.
13. 13As it happens, $105,000 is the uppermost amount in the 61-to-70-point range, which suggests that, in the final analysis, Arthur “earned” only 70 points. Moreover, given the amount that he ultimately received ($69,000), the Merchant Law Group must have retained roughly 34 percent of the total settlement—possibly 30 percent plus tax.
14. 14The debate began even before the IRSSA was signed, when Tony Merchant claimed to Frank Iacobucci that the federal government would owe his firm $80 million for services to more than seven thousand residential school clients between 1997 and 2005. Iacobucci had his doubts about the accuracy of the firm’s records, and, on 20 November 2005, he and Merchant signed an agreement laying out the verification process to which the firm’s legal fees would be subject. The agreement—which was appended to the IRSSA as Schedule V (“Agreement Between the Government of Canada and the Merchant Law Group Respecting the Verification of Legal Fees,” available at http://www.residentialschoolsettlement.ca/ScheduleV.pdf)—stipulated that if the two parties were unable to agree on an appropriate amount, the matter would be settled by binding arbitration but that the final amount “shall in no event be more than $40 million or less than $25 million.” After disputes arose, a Saskatchewan court decision in August 2008 ordered the government to pay the firm $25 million, even in the absence of adequate verification. The government proved unwilling to let the matter rest, however, and a subsequent court decision ordered Merchant Law to provide the government with billing statements in support of its claims. This the firm was ultimately unable to do in a manner satisfactory to the government. Early in 2015, the government filed a civil suit demanding that the firm repay the $25 million, whereupon Merchant Law filed a countersuit, arguing that instead the firm was owed an additional $20 million. As this book goes to press, the case is before the Saskatchewan Court of Appeal, which has reserved its decision—although it seems highly unlikely that, whatever the final outcome, Arthur (and others) will ever receive reimbursement for fees paid out of pocket. On the history of the dispute, see Jonathon Gatehouse, “The Residential Schools Settlement’s Biggest Winner: A Profile of Tony Merchant,” Maclean’s, 11 September 2006, reprinted 4 April 2013, http://www.macleans.ca/news/canada/white-mans-windfall-a-profile-of-tony-merchant/. See also Bonnie Allen, “Tony Merchant's Law Firm Files Lawsuit Against Ottawa Following $25M Claim,” CBC News, 30 January 2015 (updated 2 February 2015), http://www.cbc.ca/news/canada/saskatchewan/tony-merchant-s-law-firm-files-lawsuit-against-ottawa-following-25m-claim-1.2937297; Sarah Kraus, “Merchant Law Group in Legal Battle of Its Own,” Global News, 30 January 2015 (updated 5 October 2016), http://globalnews.ca/news/1804029/merchant-law-group-in-legal-battle-of-its-own/; and Barb Pacholik, “Ottawa Wants Back Millions Paid to Merchant Law Firm for Residential School Work,” Regina Leader-Post, 4 October 2016, http://leaderpost.com/news/local-news/ottawa-trying-again-to-claw-back-25-million-from-merchant-law-firm-from-residential-school-work.
15. 15Susan Alter, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations, Final Report for the Law Commission of Canada, May 1999, https://dalspace.library.dal.ca/handle/10222/10273, 2.
16. 16Gathering Strength—Canada’s Aboriginal Action Plan (Ottawa: Minister of Public Works and Government Services Canada, 1997), http://www.ahf.ca/downloads/gathering-strength.pdf, 3; emphasis in the original. The full text of Stewart’s address, delivered on 7 January 1998, is available on the website of Indigenous and Northern Affairs Canada, at https://www.aadnc-aandc.gc.ca/eng/1100100015725/1100100015726.
17. 17Alter, Apologising for Serious Wrongdoing, 3. Alter cites Aaron Lazare, “Go Ahead, Say You’re Sorry,” Psychology Today, January–February 1995.
18. 18“Apology to Native People: A Message from the Primate, Archbishop Michael Peers, to the National Native Convocation, Minaki, Ontario, Friday, August 6, 1993.” The text of Peers’s apology is available in twelve languages on the website of the Anglican Church of Canada, at http://www.anglican.ca/tr/apology/.
19. 19Gathering Strength—Canada’s Aboriginal Action Plan, 2, 3.
20. 20See, for example, Paul Barnsley, “‘Gathering Strength’ Not Strong Enough,” Windspeaker, February 1998, 2, http://www.ammsa.com/publications/saskatchewan-sage/gathering-strength-not-strong-enough.
21. 21Canadian Human Rights Commission, Annual Report, 2000 (Ottawa: Minister of Public Works and Government Services, 2001), 7. See also the “Commentary” section in Hurley and Wherrett, “The Report of the Royal Commission on Aboriginal Peoples,” which notes concerns expressed in December 1998 by the United Nations Committee on Economic, Social and Cultural Rights and, in February 1999, by the United Nations Human Rights Committee.
22. 22The text of Harper’s speech is available on the website of Indigenous and Northern Affairs Canada, https://www.aadnc-aandc.gc.ca/eng/1100100015644/1100100015649. For a close reading, see Matthew Dorrell, “From Reconciliation to Reconciling: Reading What ‘We Now Recognize’ in the Government of Canada's 2008 Residential Schools Apology,” English Studies in Canada 35, no. 1 (March 2009): 27–45.
23. 23Alter, Apologising for Serious Wrongdoing, 14.
24. 24Miller, “Residential Schools and Reconciliation,” para. 11.
25. 25Kathleen Mahoney, “The Indian Residential School Settlement: Is Reconciliation Possible?” ABlawg.ca (University of Calgary, Faculty of Law), 26 June 2013, http://ablawg.ca/wp-content/uploads/2013/06/Blog_KM_Settlement_June2013.pdf, 4.
26. 26Alter, Apologising for Serious Wrongdoing, 2.
27. 27Released in 2015, the six-volume final report of the TRC—Canada’s Residential Schools: Final Report of the Truth and Reconciliation Commission of Canada (available at http://www.trc.ca/websites/trcinstitution/index.php?p=890 and in print from McGill-Queen’s University Press)—is the definitive history of Canada’s Indian residential schools policy. Also well worth reading is an earlier report, They Came for the Children (2012). All the TRC’s publications can be accessed through the NCTR’s website, at http://nctr.ca/reports.php. The creation of a research centre that would preserve a permanent record of the commission’s work was part of the mandate of the Truth and Reconciliation Commission, as laid out in Schedule N of the Indian Residential Schools Settlement Agreement, http://www.residentialschoolsettlement.ca/schedule_n.pdf: see article 3 (d) and article 12.
28. 28“Our Future—Canada’s Indigenous Archive,” National Centre for Truth and Reconciliation, 2016, http://umanitoba.ca/centres/nctr/future.xhtml; see also the NCTR’s “About” page, at http://nctr.ca/about.php. Regarding the contents of the archive, see “Terabytes of Testimony: Digital Database of Residential School Stories Opens to the Public,” Unreserved, with Rosanna Deerchild, CBC Radio, 1 November 2015, http://www.cbc.ca/radio/unreserved/opportunities-for-reconciliation-pop-up-in-unexpected-places-1.3294030/terabytes-of-testimony-digital-database-of-residential-school-stories-opens-to-the-public-1.3296657.
29. 29“Our Mandate,” National Centre for Truth and Reconciliation, 2016, http://umanitoba.ca/centres/nctr/mandate.xhtml. In addition to public testimony from survivors, the NCTR has been seeking to preserve transcripts of private testimony provided by approximately 38,000 survivors who filed claims for compensation under the Independent Assessment Process (IAP). In August 2014, the Ontario Superior Court of Justice ruled that these documents should be destroyed unless a claimant specifically requested that his or her records be preserved, and in April 2016 the Ontario Court of Appeals upheld this decision, which the TRC had challenged. See “Ontario Court of Appeal Upholds Decision on Destruction of IAP Documents” Indian Residential Schools Adjudication Secretariat, 2016, http://www.iap-pei.ca/media-room/media-eng.php?act=2016-04-04-eng.php. For background, see “IAP Records Disposition,” Indian Residential Schools Adjudication Secretariat, n.d., http://www.iap-pei.ca/records/main-eng.php; and “The IAP Records,” National Centre for Truth and Reconciliation, 2016, http://umanitoba.ca/centres/nctr/iap_records.xhtml.
30. 30See Ronald Niezen, Truth and Indignation: Canada’s Truth and Reconciliation Commission on Indian Residential Schools (Toronto: University of Toronto Press, 2013), 3–6; the quotation is from p. 3. The mandate of the TRC specified that the commission “shall not hold formal hearings, nor act as a public inquiry, nor conduct a formal legal process” and “shall not possess subpoena powers” (Indian Residential Schools Settlement Agreement, Schedule “N”: Mandate for the Truth and Reconciliation Commission, article 2 [b] and [c]).
31. 31Kim Stanton, “Canada's Truth and Reconciliation Commission: Settling the Past?” International Indigenous Policy Journal 2, no. 3 (August 2011): 4.
32. 32In Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada (Vancouver: University of British Columbia Press, 2011), Paulette Regan argues that settler Canadians cannot meaningfully take part in reconciliation without assuming responsibility for cleansing themselves of their own comforting colonial assumptions. Although the home page of the now-archived TRC website (“Thank You for Visiting trc.ca,” Truth and Reconciliation Commission of Canada, n.d. [2015], http://www.trc.ca/websites/trcinstitution/index.php?p=905) announces that “the journey of Truth and Reconciliation is far from over,” the NCTR faces a challenge similar to that with which the TRC was originally confronted: it must persuade settler Canadians to continue on that journey.
33. 33Niezen, Truth and Indignation, 110.
34. 34Ibid., 106. Concerns about possible retraumatization were, and still are, evident in warnings and telephone numbers of 24-hour crisis hotlines printed on relevant documents, such as the Guide to the Independent Assessment Process Application, and also posted on web pages. See, for example, the “Indian Residential Schools” page on the website of Indigenous and Northern Affairs Canada, https://www.aadnc-aandc.gc.ca/eng/1100100015576/1100100015577.
35. 35Niezen, Truth and Indignation, 111.
36. 36Betty Bastien, Blackfoot Ways of Knowing: The Worldview of the Siksikaitsitapi (Calgary: University of Calgary Press, 2004), 5. The term Siksikaitsitapi means “Blackfootspeaking real people,” that is, those Niitsitapi (“real people”) whose native tongue is Siksikaitsipowahsin, the Blackfoot language.
37. 37This conception of storytelling, as intended to produce catharsis in the teller, is at odds with the ancient Greek model of catharsis, elaborated most extensively in the context of drama. In this model, which is arguably far closer to the Indigenous model, the telling of a story aims to produce catharsis not in the teller but in the audience, whose members respond emotionally to the events portrayed or described.