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The Good Pitch Forum: focus on human rights

CLAIHR was proud to co-sponsor the Good Pitch forum at this year’s Hotdocs festival, which focused on human rights issues.

The forum brought together the Toronto Documentary Forum (TDF) hosting Channel 4 BRITDOC Foundation and the Sundance Institute Documentary Film Program’s Good Pitch, an innovative documentary pitching forum that took place as part of the TDF in 2009.

By |May 7th, 2009|News Releases|

Mugabe and the White Africa

CLAIHR was proud to present: Mugabe and the White African at the 2009 Hotdocs film festival.

Director: Lucy Bailey Andrew Thompson
UK, Zimbabwe, South Africa, Namibia

90 mins

By |May 7th, 2009|News Releases|

Reconciling State Sovereignty with the Global Responsibility to Protect

CLAIHR was proud to participate in the inaugural event for the Rule of Law Education Series on Monday, April 6, 2009 at the Law Society of Upper Canada and its Human Rights Monitoring Group. The event featured a panel discussion from 4:00 p.m. to 6:00 p.m. that examined the topic, “Reconciling State Sovereignty with the Global Responsibility to Protect.” Following the discussion, participants were invited to a reception that featured award winning journalist, The CLAIHR is proud to participate in the inaugural event for the Rule of Law Education Series on Monday, April 6, 2009 at the Law Society of Upper Canada and its Human Rights Monitoring Group.

By |April 6th, 2009|News Releases|

Human Rights, Human Wrongs and The Responsibility To Protect with Hon. Allan Rock

On May 21, 2008, CLAIHR launched its new human rights speaker series in the historic Campbell House. Lawyers, law students, academics and other interested professionals gathered to share a glass of wine, enjoy good company and listen to the guest speaker Allan Rock. Allan Rock, Canada’s former Ambassador to the United Nations, the former Attorney General of Canada,Minister of Industry and Minister of Health, spoke from his unique perspective stemming from his broad experience in international human rights issues at the United Nations.

By |May 21st, 2008|News Releases|

Australian experiences with the right to truth

MEMORANDUM

TO: CLAIHR

DATE: March 31, 2008

FROM: Mark Gustafson

AT: University of Toronto, Faculty of Law, International Human Rights Program

RE: Australian experiences with the right to truth

Issues

This memorandum addresses the following questions:

1. How effective has the Australian process and the Bringing them Home Report in particular been in promoting the right to truth?

To answer this question this memorandum will ask the following:

  • How does the Bringing them Home Report incorporate and reflect the right to truth?
  • What has the Bringing them Home Report achieved?
  • Have other initiatives in Australia incorporated and promoted the right to truth?

AND

2. What lessons should Canada apply to its TRC in the context of developing an accurate historical record and in relation to achieving the goal of reconciliation?

Executive Summary

The Bringing them Home Report (“Report”) addresses many aspects that have been recognized as part of the right to truth. First, it traces the history of the violation of the human rights of indigenous children in
Australia in a comprehensive manner. This addresses both the individual and societal aspects of the right to truth: it allows victims to understand the circumstances surrounding their removal and it informs Australian society at large about past violations. Second, the Report makes many recommendations regarding the need to help those who affected by removals to locate their relatives and the need to make records accessible to victims. Finally, the Report promotes the right to truth as a tool for reconciliation by promoting continued testimony by victims.

The effectiveness of the Report in promoting the right to truth has been limited by resistance by the Australian federal government. The federal government has criticized the Report’s methodology. It has claimed the Report presented one-sided evidence. It has attacked the Report’s use of contemporary human rights standards when describing historical events. And it has dismissed the Report for not presenting “legal” truth by not cross-examining all witnesses. These criticisms were used by the Australian government to discredit the Report in order to avoid the Report’s recommendations regarding reparations.

The Report has been more successful in promoting the right to truth on a local level. Local governments responded the National Inquiry’s call for information despite the National Inquiry’s lack of subpoena power and have confirmed the Report’s findings by issuing apologies. Local governments have also been responsive to recommendations regarding setting up Link-Up and archival services and to recommendations regarding public education. The Report has increased awareness in Australian society but has also been divisive.

The Canadian Indian
Residential School may avoid many of the criticisms leveled at the Report in light of the fact that the issue of compensation has been resolved in Canada. However, the Report provides important lessons as to where resistance can be anticipated.

Discussion – The Right to Truth

The right to truth is an emerging legal concept connected to the obligation of states to protect and guarantee human rights. In its most basic form, the right to truth pertains to the obligation of states to conduct effective investigations when human rights are violated and to provide victims of human rights violations with information regarding the violations. It is an inalienable and autonomous right. Its purpose is to restore dignity to the victims of manifest human rights violations and to ensure that such violations of human rights law do not recur.[1]Accordingly, the content of the right to truth includes, inter alia, the disclosure by states of:

  • the whole and complete truth about the events that occurred;
  • the specific circumstances attending the events;
  • the whereabouts of victims;
  • the role of the perpetrators involved;
  • the causes and conditions pertaining to the violations that were committed; and
  • the reasons for their commission.[2]

The right to truth has both individual and societal dimensions. While it has most often been invoked by individuals seeking to locate family members who were victims of enforced disappearances, societies can also be victimized by human rights violations and thus can invoke the right to truth.

The Bringing Them Home Report and the Right to Truth

Summary of the Report

The Report was the product of a National Inquiry called in 1995 by the Australian Attorney-General in response to two court cases filed by aboriginal claimants regarding injuries resulting from child removal policies. The National Inquiry had four terms of reference: tracing past laws of child removal, examining the need for changes in laws and assistance for those affected, determining the justification for compensation, and advising on policies of self-determination.[3]

The Report traces the history of the removal of indigenous children in
Australia through the use of testimony given by 535 indigenous persons and through an analysis of official records. Having laid out the historical development of these policies, the Report then examines the consequences of removal policies on indigenous individuals and families. The Report also discusses grounds for reparations, including a finding that the policies of child removal constituted genocide under international human rights law.

[4] The Report also contains 54 recommendations ranging from the need for further testimony, grounds for compensation, the need for an official apology and suggestions for a variety of legislative changes. [5] The Report & the Right to Truth

a. Right to Truth as Right to Effective Investigation

From the very outset, the National Inquiry seems not to have been intended to be a strong investigative body. Unlike the Royal Commission Into Aboriginal Deaths in Custody which took place 6 years before the National Inquiry which had a budget of $30 million with a 4 year mandate, the National Inquiry was funded with $1.5 million and was given 18 months in which to conduct its research.[6] Additionally, only one of the National Inquiry’s four terms of reference was specifically geared towards examining past practices while the other terms of reference focused on what laws and practices needed to be changed.

Yet, because the National Inquiry was conducted independently of direct government intervention it was able to play more of an investigative role than its funding or mandate would suggest. To begin, the Report spends more than 100 pages describing the development of child removal laws in each state and territory from colonization to the 1980s. It then spends the next 80 pages presenting testimony and statistical evidence regarding the effects that child removal policies had on individuals, families and communities. State and territorial governments submitted evidence regarding countless laws, welfare programs and police policies which are presented alongside victim testimony. This allows a very detailed picture of indigenous child removal policies to emerge.

This detailed historical record was the result of voluntary participation by local governments and victims, for the National Inquiry was given no subpoena powers. To get evidence the National Inquiry published an open invitation across
Australia for anyone with relevant information to come forward.

[7] In some respects this voluntary participation was successful. For example, it resulted in over 500 aboriginal survivors or relatives of survivors giving testimony. Additionally, senior officers from every state and territory government, along with churches, “produced voluminous material consisting of the relevant laws, reports and files covering the history of forcible removals of children in their respective jurisdictions. These officers also made themselves available to the Inquiry to discuss particular aspects of the material.”[8] Indeed, so many people expressed interest in testifying that the National Inquiry was not able to hear all of the potential testimony and the state and territorial governments submitted so much evidence that the National Inquiry couldn’t thoroughly examine everything.

While these latter problems could have been overcome with more money and time, it was the Australian federal government that exploited the National Inquiry’s lack of subpoena power. In its submission to the Australian Parliament in 2002, the National Inquiry stated that the federal government had declined to provide historical material relating to the Northern Territory, which had been under federal jurisdiction until 1978 even though the federal government collated that very material for its defense in the Kruger case which took place during the inquiry. When the federal government finally did submit information, it did so after the submission deadline thus denying the National Inquiry of the opportunity to discuss the submission with the government.[9]

In sum, the limitations in the Report’s funding, mandate and powers led some commentators to view the Report’s investigative portions as “the first move in an attempt at understanding” but “definitely not the final word.”[10] Others, as will be seen later, were able to seize on these limitations in order to level serious charges about the truthfulness and validity of the Report. In all fairness, however, the Report was largely able to conduct a comprehensive and detailed investigation into past policies.

b. Individual versus Societal Dimension of Right to Truth

The 2006 Report on the right to truth by the United Nations’ Office of the High Commissioner for Human Rights states that, in the first instance, victims and their relatives are entitled to the right to truth. In particular, as seen in many South American countries, victims of forced removals have a right to know the whereabouts of their family members. This is an individualized notion of the right to truth, as it focuses the right of each victim to obtain information.

Interestingly, addressing the right of individuals to information regarding the location and identity of family members was not in the Report’s mandate. Although this suggests that the Report was not concerned with the individual’s right to truth, the Report is not silent on the matter of individual’s right to truth. Specifically the Report evaluates what governments and non-governmental organizations have done to provide services to help victims find relatives and reestablish connections with their communities and culture and the social and psychological issues surrounding reunions. Additionally, while the Report was not involved in aiding family reunions itself, it still promotes this aspect of individuals’ right to truth in its recommendations: a large number of the Report’s recommendations involve the funding of and access to information and reunion services. How effective the Report’s promotion of this aspect of the right to truth has been will be addressed below.

An individual’s right to truth also involves the right to know the circumstances surrounding the specific violations perpetrated against him/her. In this respect, the right of individuals to obtain information overlaps with the right of society to information. This relationship plays out in the Report. To begin, the Report appears to strongly promote the individual’s right to truth through its presentation of numerous anecdotal stories that are linked to specific laws and events. Yet, the Report’s purpose of including these specific narratives was to illustrate the general trends of the scheme of child removal policies in
Australia rather than providing individual victims with information regarding the reasons for their forced separation from their families. As such, the substance of the Report is focused on providing information to society as the “victim”. The audience of the Report (ie, the people to whom the truth regarding past abuses is being presented) is the Australian government and society. In other words, the Report is concerned with truth as a “social matter” more than an individual matter.[11]

Interestingly, in the early 1990’s, before the publication of the Report, the story of past child removal and assimilation policies in Australia was already publically known to academics through the works of historians such as Peter Read[12] and to government officials through the Royal Commission Into Aboriginal Deaths in Custody. However, the Report was able to bring the evidence regarding these past abuses to a much broader segment of the Australian population, in part because of its focus on the need for reconciliation and redress.

In sum, the Report’s content is geared towards society’s right to know about past violations as a “societal victim” while the Report’s recommendations focus on the rights of individuals to know about the specific violations perpetrated against them. The effectiveness of these efforts depends on government acceptance of the Report’s recommendations and society’s acceptance of the Report’s content which will be discussed later.

c. Right to Truth as Reconciliation and Restoration of Dignity

The right to truth has been linked to concepts of reconciliation and restoration.[13] Although the Report does not made this link explicitly, the Report does in fact promote the right to truth as part of reconciliation in two ways., and the Report frames the historical events and its finding in the language of international human rights.

First, the Report promotes truth as reconciliation by placing a large emphasis on allowing victims to present their experiences. This promotes reconciliation because victims’ testimony can simultaneously have a cathartic effect for victims and serve to diminish the victim’s feeling of alienation from other groups.[14] In this sense, it is the act of contributing to a picture of the “truth” rather than being presented with the truth that emerges from victims’ testimony that is important. The National Inquiry encouraged testimony by going to great lengths to create supportive environments for those victims who wished to testify, including follow-up visits by social workers.[15] Additionally, the testimony of victims plays a dominant role in the Report’s presentation of historical evidence and in describing contemporary realties. The prominence of testimony is obvious on a simply visual level, for testimony excerpts are printed in bold font and often in borders while the rest of the Report’s text is in normal font. Lastly, the Report advocated for the continued collection of testimony after the completion of the Report: in its first recommendation the Report called for the continued recording and preservation of testimony of Indigenous people affected by the forcible removal policies who wish to provide their histories in audio, audio-visual or written form.[16]

Second, the Report promotes truth as reconciliation through the use of the language and standards of human rights. This was is empowering for victims because the contemporary human rights dialogue is sensitive to issues which may have been judged differently by past norms. Indeed, the Report found that Australia’s past child removal policies had breached The United Nations Charter, 1945, The Universal Declaration of Human Rights, 1948, The International Convention on the Elimination of All Forms of Racial Discrimination, 1965 and The Convention on the Prevention and Punishment for the Crime of Genocide, 1948.[17] It is important to note that although these findings may have helped to restore the dignity of victims in the aboriginal community, it is a version of the truth which was very controversial and opened the door to attempts to nullify the Report’s promotion of the right to truth which will now be discussed

Achievements of the Report respecting the Right to Truth

Federal Reactions & the Right to Truth

By far the greatest challenges to the Report’s promotion of the right to truth have come from the Australian federal government. The government’s response was due, in large part, to its desire to avoid paying compensation and reparations as that issue had not been resolved through comprehensive settlement agreement as in
Canada.

The main method used by the Australian government was to focus on “truth” as a legal concept. This was, in essence, an attack on the Report’s methodology. For example, the government criticized the Report’s inclusion of and reliance on testimony from witnesses who weren’t cross-examined because it deemed this evidence to be uncorroborated and, by extension, something akin to hearsay.[18] Similarly, the government asserted that the Report’s use of testimony created an emotive image of the child removed from its parent’s arms which was misleading.[19] Additionally, the government claimed that the National Inquiry had failed to elicit the views of those involved in administering the policies and practices in question and that therefore the Report was one sided in its presentation of the historical record.[20] Finally, the government attacked the Report’s statistical findings regarding the number of children removed as based on untested and exaggerated evidence.

These are rather disingenuous arguments, for it was the government who chose not to give the National Inquiry subpoena powers or to participate in the scrutiny of evidence. Also, while subsequent studies have indeed found problems with the Report’s statistical data, this was largely a result of the time and budgetary constraints under which the National Inquiry operated.[21] Still, this focus on the accuracy of the statistical data and the correct standard of truth successfully distracted many people from the recommendations of the Report.[22]

Additionally, the government fought the human rights frame through which the Report presented its findings. It argued that the correct method for analyzing the policies and practices of forcible removal was to view them in accordance with the ideas and standards of the day.[23] In essence, these arguments were meant to undercut the Report’s findings of racial discrimination and, in particular, the finding that child removal policies had amounted to genocide. In fact, a government minister even when so far as to suggest that because “forcible” was understood differently in the past than it is currently understood under human rights law, aboriginal children were not “forcibly” removed and thus that there could be no “Stolen Generation” in Australia.[24] Again, the government’s desire to discredit any grounds for reparations and to counter the finding of genocide can be seen as a significant force behind these criticisms.

Despite these negative reactions to the Report, the federal government did respond to certain of the Report’s recommendations. Most of the government’s responses were directed at socio-economic issues such as health care and housing which saw increased government funding after the publication of the Report. While health programs and economic development are important issues, it is unclear how these concepts are related to the right to truth. Still, some of the Report’s recommendations that the government did address did relate directly to victims’ right to information.

First, the government increased funding for existing “Link Up” services which help victims trace their families to $11.25 million for 4 years, although it insisted that state and territorial governments should fund these organizations, not the federal government. Many commentators have argued that this increased government funding was insufficient to meet the needs of victims. Still, the existence of these services is fundamental to victims’ right to truth.

Second, the government acted on the recommendation to continue to collect victim testimony. Unfortunately, in funding a $1.6 million oral history project the government arguably undercut the intention of the Report in this matter.[25] The Report had focused on the collection of testimony as part of the healing process: testimony was to be heard locally so that victims would have community support and so that victims would be close to local link-up groups. However, the federal government placed the oral history project under the control of the National Library. Also, the federal government changed the mandate of the project from recording victims’ perspectives to collecting testimony from all witnesses.[26] This change of mandate emphasizes a tension in the right to truth: the inclusion of testimony of officials and perpetrators who may or may not believe that they have done anything wrong may impede the notion of the right to truth as a tool for healing while simultaneously allowing for a more “complete” historical record.

Third, the government played a mixed role in responding to the recommendation to preserve records relating to removals. The federal government funded a $2 million project to index materials at the National Archive and simultaneously argued that records were a matter of local government control and not federal responsibility.[27] Record preservation will be discussed further below.

Lastly, until this year the government has side-stepped the recommendation regarding an official apology. Although an apology adds nothing new to the historical evidence, an apology has been seen as vital to legitimizing the Report.

In sum, the federal government has leveled strong criticism at the Report as not presenting a verifiable and balanced version of the historical record. These criticisms are largely a result of the desire to avoid reparations and the perceived need to rebut the genocide finding. Still, while rejecting the findings of the Report, the government has been somewhat more responsive to addressing the victims’ right to truth regarding removals and family reunions.

Local Government Reactions & the Right to Truth

Local governments have been much more receptive to the Report and have even taken steps to promote the right to truth.

First, within 3 years of the Report, all local governments, other than the
Northern Territory, had apologized for abuses relating to child removal policies and other discriminatory policies.

[28] This is an important part of the Report’s promotion of the right to truth because it legitimizes the evidence presented by the Report.

Second, local governments have been involved in creating archives for the preservation of information relating to past abuses. It appears that most state and territorial governments have created some sort of archival system. For example, a centralized archival service is provided in
Western Australia: the Family Information Records Bureau of the Department of Community Development (WA) provides family history information from records held in its own archives and assists with access to records held by other departments and organizations.

[29] In contrast, in New South Wales, where the majority of Indigenous peoples live, applications for government records still need to be made to at least two separate departments – Archives and Aboriginal Affairs. Processes for managing the privacy of individuals named in the records were found wanting in 2001.

[30] However, New South Wales appears to be the only state that has reciprocal arrangements with other states.

[31] Access to information was a central part of the Report’s promotion of the right to truth.

In respect of the recommendation to prohibit the destruction of relevant records, local governments’ responses have been varied: in Tasmania the government has agreed not to destroy record and New South Wales passed a moratorium on the destruction of records.[32] The Northern Territory Government stated that it would consider withholding relevant records from destruction and the ACT government indicated its intention to ‘examine the whole records management regime’ but it is unclear what has actually been done.[33] Issues of access fees, access assistance, and national coordination are still issues that need to be resolved.[34]

Finally, local governments have also been active in promoting the right to truth through education. Specifically, mandatory education programs about the Stolen Generation and aboriginal culture have been included in public schools across the states and territories.[35] In addition, to varying degrees local governments have initiated professional training programs regarding working with indigenous people with a particular emphasis on the needs of aboriginal people who were forcibly removed from their families.[36]

Societal Reaction & the Right to Truth

It is beyond doubt that the Report was instrumental in bringing the issue of indigenous child removal policies into the fore of social consciousness in Australia. According to one commentator, even though the story of past child removal and assimilation policies in
Australia was already publically known to some degree before the publication of the Report, “no inquiry in recent Australian history has had a more overwhelming reception nor, at least in the short term, a more culturally transforming impact.”

[37] This success was due in large part to the Report’s effective manner of presenting historical evidence with anecdotes from victims.

Yet, as with the federal government, this appeal to emotion in order to convey historical truth has had unintended results. According to one commentator:

“After its publication two possibilities existed. One was an extended national discussion would be conducted in which understanding would be tested and refined. The other was that the issue of the stolen generations and the assessment of Bringing Them Home would be overtaken by a bitter, polemical struggle between left and right. It was this second possibility which came to pass.”[38]

Many commentators argue that the source of this divide is the Report’s finding of genocide, which has polarized the discussion of child removal policies even among moderates who support reparations.[39] However, it is unclear how much of the resistance to the genocide finding was a result of the government’s strong (and well publicized) reaction to the issue as opposed to genuine outrage.

Still, the genocide finding aside, the public has been accepting of the historical materials presented in the Report: the general public embraced HREOC’s recommendations for apology and acknowledgement. In 1998 over half a million people signed ‘Sorry Books’ and thousands took part in ceremonies on the first National Sorry Day.[40] A ‘Journey of Healing’ was commenced in 1999 and hundreds of events have taken place across the country since then.[41] In 2001 the Journey of Healing focused on the families and communities left behind when children were removed, with many healing ceremonies for communities in rural areas. In 2002 the focus was on two themes – making known the effect of removal on rural and remote regions and helping to build understanding of the effect of removal on the children of those removed.[42]

In sum, the Report has increased Australian society’s awareness of the details regarding past human rights violations against aboriginal people despite partially polarizing public opinion.

Other Initiatives inAustralia and the Right to Truth

As stated above, Link-Up services have played a direct, though less publicized, role in promoting the right to truth. These organizations provide the means which enable victims to learn about the events surrounding their removal from their families and the current whereabouts of their relatives. Numerous Link-Up organizations exist in each state and territory in
Australia and continue to work with victims. While Link-up services existed before the Report, the Report has helped to increase their funding and prominence.

Organizations such as Aboriginal Legal Services of Western Australia have been able to create documents similar to the Report which collect victims testimony in specific areas and then present their findings. In its report, Telling Our Story, the Aboriginal Legal Services of Western Australia collected testimony from over 600 victims and members of their families and made recommendations regarding the need for more link-up funding, improved access to state files, better provision of evidence to victims and greater public education within Western Australia.[43]

Additionally, organizations such as the Public Interest Advocacy Centre [PIAC] have done research into the findings of the Report and the responses of local and federal governments to the Report. In its 2002 report, Restoring Identity, PIAC called for increased funding of Link-Up programs as well as new tribunals and hearings to collect testimony and address issues of reparations.[44]

Lessons for Canada

Before applying any of the lessons of the Report’s attempt to promote the right to truth to Canada, it must be noted that the Canadian Indian Residential School TRC will be taking place in much different environment than the National Inquiry which produced the Report in
Australia. The $60 million budget for the TRC is a part of that difference, for it will potentially allow the TRC to more thoroughly check the evidence it presents to the public. However, it is the fact that Canada has largely resolved the issue of compensation through the Indian Residential Schools Settlement Agreement that will likely allow the TRC to avoid many of the problems encountered by the Report in pursuing the right to truth. The fact that the Australian government did not want to pay reparations was the largest factor behind most of its attempts to challenge and undermine the Report.

Still, while the hostility that comes with reparations has been removed, the testimony and information presented to the TRC is still likely to cause hostility on a number of levels which may impede the right to truth.

First, the experience of the Report suggests that “truth” may be hindered by the absence of subpoena power. To a large degree, the National Inquiry in Australia was not overly hindered by its lack of subpoena power: the National Inquiry in
Australia was successful in obtaining information from local governments and victims even when it did not specifically invoke the right to truth. The Australian federal government was the exception: it refused to comply with document requests and then sought to discredit the Report for not presenting all of the evidence. While the Australian government’s reluctance to provide evidence was largely tied to the fear of having its evidence lead to the recommendation that compensation be paid to aboriginal parties, the general point is clear: governments are reluctant to provide evidence that hurts their image, even when the abuses being investigated took place in the past and are already publicly known.

Second, the experience of the Report shows that there is a tension between the aspect of the right to truth which promotes full and balanced investigations and the aspect of the right to truth which promotes reconciliation. The Report used victim testimony to give emotive force to the facts presented in official documents and to allow victims to participate in a healing process. However, this victim centered approach has been used by the Australian government as a tool for discrediting the Report as presenting uncorroborated “truth.” Whether this criticism is legitimate or not, the Canadian TRC must be aware of this tension. Incorporating non-indigenous voices may dampen criticisms but may not accord with the concept of truth as reconciliation.

Third, the lens through which evidence is presented is an important aspect in the right to truth. While the Australian government agreed with many of the facts in the Report, it was the interpretation of these facts through the lens of contemporary international human rights which created much of the controversy around the Report. Specifically, the finding of genocide increased the amount of attention the Report received but also led many to dismiss all of its findings. While such findings may be necessary, the Canadian TRC should be aware of the potential backlash.

Third, recommendations regarding continued access to information for victims and society may need consistent oversight to ensure implementation.
Australia has taken a decentralized approach to archiving records which can make accessing information easier to some degree but which can create consistency and coordination issues. A unified standard of access fees and preservation guidelines would be necessary if Canada were to adopt a decentralized approach which access assistance would be vital if Canada were to adopt a centralized archival system.

Fourth, engaging society through events, celebrations and educational materials are effective ways to promote the societal dimension of the right to truth after commissions or inquiries have been completed. Through remembrance days, mandatory education programs in public schools and other events organized by non-governmental organizations and local governments,
Australia has been able to ensure that the findings of the Report have remained in the public consciousness. While individuals’ right to truth can be satisfied by receiving information regarding the specific abuses perpetrated against them or their families, society’s right to truth appears to be a long term endeavor. As such, efforts should be taken to ensure that the findings of the Canadian TRC are not relegated to dusty bookshelves.

Bibliography Aboriginal Legal Service of Western Australia (Inc.), “Telling Our Story: A Report by the Aboriginal Legal Services of Western Australia (Inc) on the Removal of Aboriginal Children from their Families in
Western Australia”, 1995. http://www.als.org.au/Publications/index.html Melissa Abrahams, “Bringing Them Home or Taking Them Nowhere: The Federal Government’s Response to the National Inquiry into the Stolen Generations” [1998] ILB 4. http://www.austlii.edu.au/au/journals/ILB/1998/17.html ATSIC Submission to the Senate Legal and Constitutional References Committee’s Inquiry into the Stolen Generation, 2002. http://pandora.nla.gov.au/pan/41037/20050516-0000/www.atsic.gov.au/issues/Law_and_Justice/bringing_them_home_report/Inquiry_into_the_Stolen_Generation/Stolen_Inquiry_Submission_%2021_March_%20FINALVERSION.pdf Austr., Commonwealth, “Commonwealth Government response to the Council for Aboriginal Reconciliation Final Report Reconciliation: Australia’s Challenge” Canberra, September 2002, [2002] AILR 66. http://www.austlii.edu.au/au/journals/AILR/2002/66.html Austl., Commonwealth, Senate Legal and Constitutional Affairs Committee, “Report on the Inquiry into the Progress Towards National Reconciliation”, 2002. http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/2002-04/reconciliation/index.htm Austl., Commonwealth, Senate Legal and Constitutional Affairs Committee, “HEALING: A Legacy of Generations. The Report of the Inquiry into the Federal Government’s Implementation of the Recommendations Made by the Human Rights and Equal Opportunity Commission in Bringing Them Home” http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/1999-02/stolen/report/index.htm Antonio Buti, “Unfinished Business: The Australian Stolen Generations” [2000] MurUEJL 40. http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MurUEJL/2000/45.html?query=%22haebich%22 Amanda Cornwall, “Restoring Identity: Final Report of the Moving Forward Consultation Project”, Public Interest Advocacy Centre, August 2002. http://www.austlii.edu.au/au/journals/AILR/1999/34.html Human Rights And Equal Opportunity Commission, “Submission to the Senate Legal and Constitutional References Committee’s inquiry into the Stolen Generation” Prepared by Dr. William Jonas, Submitted 8 June 2000. http://www.austlii.edu.au/au/journals/ILB/1997/92.html Heather McRae et al, eds, Indigenous Legal Issues: Commentary and Materials, 3rd ed. ( Sydney: Lawbook Co., 2003) Wayne Morgan, Book Review of Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families by the Human Rights and Equal Opportunity Commission” [1997] ILB 95. http://www.austlii.edu.au/au/journals/ILB/1997/95.html National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, “Bringing them Home” (Sydney: Sterling Press Pty. Ltd., 1997). Also available online at http://www.humanrights.gov.au/social_justice/bth_report/index.html Ann Wansborough, Book Review of Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report 1997, by Mick Dodson” [1998] ILB 21. http://www.austlii.edu.au/au/journals/ILB/1998/21.html Hal Wootten, “Ron Brunton & Bringing Them Home” [1998] ILB 11. http://www.austlii.edu.au/au/journals/ILB/1998/44.html

[1] Office of the High Commissioner for Human Rights (OHCHR) report on the right to truth (2007)

[2] Ibid.

[3] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, “Bringing them Home” (Sydney: Sterling Press Pty. Ltd., 1997). [Report] http://www.humanrights.gov.au/social_justice/bth_report/index.html

[4] Ibid at 247-599.

[5] Ibid at Appendix 9.

[6] Hal Wootten, “Ron Brunton & Bringing Them Home” [1998] ILB 11. For those who would argue that $1.5 million is a large amount of money for an investigation, it pales in comparison to the $12 million which the Australian government spent fighting the first lawsuit regarding indigenous child removal policies. Heather McRae et al, eds, Indigenous Legal Issues: Commentary and Materials, 3rd ed. (Sydney: Lawbook Co., 2003), p 602. The case was Cubillo v. Commonwealth of Australia

[7] Human Rights And Equal Opportunity Commission, “Submission to the Senate Legal and Constitutional References Committee’s inquiry into the Stolen Generation” Prepared by Dr. William Jonas, Submitted 8 June 2000. http://www.hreoc.gov.au/social_justice/senate_submission/index.html [HREOC Submission]

[8] HREOC Submission, ibid.

[9] HREOC Submission, ibid.

[10] Robert Manne, The Way We Live Now, (Melbourne, Text Publishing, 1998), p. 30 [Manne]

[11] Yasmin Naqvi, “The Right to Truth in International Law: Fact or Fiction?”, International Review of the Red Cross (2006), 88: 245-273 Cambridge University Press, p. 249. [Naqvi]

[12] Peter Read, The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969 (Sydney: New South Wales Ministry of Aboriginal Affairs, 1982)

[13] Naqvi, supra note 11.

[14] Aboriginal Legal Service of Western Australia (Inc.), “Telling Our Story: A Report by the Aboriginal Legal Services of Western Australia (Inc) on the Removal of Aboriginal Children from their Families in Western Australia”, 1995. http://www.als.org.au/Publications/index.html [Telling our Story]

[15] Report, supra note 3.

[16] Report, ibid. This focus on victims in the Report has an important by-product which is also linked to the right to truth. That is, by presenting evidence through the lens of victims’ testimonies, the truth about the effects of child removal policies becomes self-evident in the Report. This promotes reconciliation for provides the grounds on which the Report can make recommendations regarding the need for mental health and other social support services to be provided to victims.

[17] Austl., Commonwealth, Senate Legal and Constitutional Affairs Committee, “HEALING: A Legacy of Generations. The Report of the Inquiry into the Federal Government’s Implementation of the Recommendations Made by the Human Rights and Equal Opportunity Commission in Bringing Them Home” [Healing]

[18] HREOC Submission, supra note 8.

[19] HREOC Submission, ibid.

[20] HREOC Submission, ibid.

[21] HREOC Submission, ibid.

[22] HREOC Submission, ibid.

[23] Healing, supra note 17.

[24] HREOC Submission, supra note 8.

[25] Healing, supra note 17.

[26] Amanda Cornwall, “Restoring Identity: Final Report of the Moving Forward Consultation Project”, Public Interest Advocacy Centre, August 2002. http://www.eniar.org/news/pdfs/restoringidentity.pdf [Restoring Identity]

[27] Restoring Identity, ibid.

[28] HREOC Submission, supra note 8.

[29] Restoring Identity, supra note 26.

[30] Restoring Identity, ibid.

[31] Restoring Identity, ibid.

[32] Restoring Identity, ibid.

[33] Restoring Identity, ibid.

[34] Restoring Identity, ibid.

[35] Restoring Identity, ibid.

[36] Healing, supra note 17.

[37]Manne, supra note 6, p.5.

[38] Ibid, p.30.

[39] Wayne Morgan, Book Review of Report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from their Families by the Human Rights and Equal Opportunity Commission” [1997] ILB 95.

[40] Restoring Identity, supra note 26.

[41] Restoring Identity, ibid.

[42] Restoring Identity, ibid.

[43] Telling Our Story, supra note 14.

[44] Restoring Identity, supra note 26.

By |March 31st, 2008|News Releases|

Global Generations Conference: Human Rights and the Earth at a Crossroads

On February 19, 2008, the University of Ottawa Student Chapter of CLAIHR presented the 4th Annual Global Generations conference: Human Rights and the Earth at a Crossroads. The Global Generations Conference provides a unique forum for students from coast to coast to present their innovative research on contemporary human rights issues.

By |February 19th, 2008|News Releases|

Addressing Indian Residential Schools in the U.S. & Australia

MEMORANDUM

TO: CLAIHR

DATE: November 15, 2007

FROM: Mark Gustafson

AT: University of Toronto, Faculty of Law, International Human Rights Clinic

RE: Addressing Indian Residential Schools in the U.S. & Australia

Issues

This memorandum addresses the following question:

  • How have other countries who had residential schools (US, Australia) tried to achieve the stated goals of Canada’s TRC? [1]
By |November 15th, 2007|News Releases|

Press Release: Pakistan Crackdown: November 2007

Canadian lawyers urge Musharraf to end to military rule in Pakistan

Stop attacking judges and protesters: Canadian Lawyers for International Human Rights

For immediate release

TORONTO, November 14, 2007 – Canadian Lawyers for International Human Rights (CLAIHR) today stands in solidarity with the legal community in Pakistan in calling on the government of Pakistan to immediately return to constitutional rule, restore human rights to its citizens and remove the restrictions it has placed on the media.

By |November 14th, 2007|News Releases|

Indian Residential School Survivor Programs

MEMORANDUM

TO: CLAIHR

DATE: October 20, 2007

FROM: Kaley Pulfer

AT: University of Toronto, Faculty of Law, International Human Rights Clinic

RE: Indian Residential School Survivor Programs

Section I – The Truth and Reconciliation Commission

The Truth and Reconciliation Commission (“the TRC”) was created under Schedule N of the Indian Residential Schools Settlement Agreement (“the Agreement”), which was agreed to in principle on May 8, 2008. On September 19, 2007, it was announced that the implementation of the settlement agreement was underway. While the main focus of the implementation surrounded common experience payments and how that aspect of the agreement would proceed, it is also important for the establishment of the TRC, especially given the fiver year time limit.

The goals of the TRC include the provision of an appropriate setting in which to allow Indian Residential School Survivors (IRSS) to share their experiences, to promote awareness of these experiences among Canadians, to create an historical record of the Indian Residential School (IRS) system, to support commemoration of IRSS and their families, and to submit recommendations to the Government of Canada.

The TRC will be composed of one chairperson and two commissioners who are appointed by a selection panel. The Selection Panel includes representatives chosen by National Aboriginal organizations, the Government and church entities. Currently, nomination acknowledgment letters have been sent out by the corporate Secretariat in response to the almost 300 applications they have received for the position. Candidate evaluation will be based on the Gazette Notice of Vacancy and the public ad calling for nominations. The Minister of Indian and Northern Affairs, Chuck Strahl, and Chief Phil Fontaine of the AFN will receive the panel’s recommendations, and the Prime Minister will receive the recommendations for Commissioners.

There will also be an Executive Director who will be in charge of the operation of the commission through the central Secretariat. Once the commissioners are appointed by the Federal Government, they shall establish an Indian Residential School Survivor Committee (IRSSC) that shall represent Aboriginal organizations and survivor groups, reflecting population distribution of the schools, from across the country.

The Commission is authorized to receive and make use of statements and documents from IRSS and their families, communities, or other interested participants. They are, however, limited by privacy laws, and its own mandate which excludes the use of formal hearings, public inquiries, formal legal proceedings, subpoena or compelling powers. Additionally, the commission can not identify any individuals alleged of wrongdoing unless that individual has been convicted of that act. The government of Canada and the churches, subject to individual privacy limitations, shall provide all relevant documents in their possession to the TRC.(p.10)

The responsibilities of the Commission include statement-taking, fact-finding, report-writing, and archiving in order to compile a history of the Residential Schools in Canada. In addition to establishing a research centre from which their research (fact-finding, statement-taking and collecting, report-writing) will be conducted, the Commission will organize seven national events to disseminate information to the public through the participation of survivors and government and church officials, and educational means. The commission is also responsible for evaluating commemoration proposals and preparing a final report. In addition, it should provide guidance to communities in which residential schools were located are responsible for organizing events involving both survivors and if desired former employees, government and church officials, to develop and create a record of community narratives, while educating the public and encouraging better relationships within the community.

In order to facilitate this work, an Indian residential School Survivor Committee (IRSSC) will be established. It is to be composed of 10 representatives from Aboriginal organizations and survivor groups and should reflect the regional population distribution of IRS. They are to provide the commission with information regarding the characteristics of their communities and criteria for the process, to evaluate proposals for Commemoration Policy, among other issues. The Executive Director and Commissioners are to consult the IRSSC regarding regional liaison appointments, who will assist in the implementation of reconciliation events, as well as provide a link between national and local groups to promote sharing of knowledge and facilitate truth-telling and the collection of such information for the Commission.

Currently, the office of the Interim Executive Director, Bob Watts, has established a selection panel to evaluate commissioner applications.

Section II – Indian Residential School Survivor Groups Indian Residential School Survivors Society (www.irsss.ca)The IRSSS is a British Columbia group that was created in 1995 to provide support to survivors of residential schools. It is mandated by survivors, chiefs, and political leaders in B.C. and is focused on helping First Nations peoples to be empowered by the acknowledgment of the effects of Residential Schools through “supporting research promoting awareness, establishing partnerships and advocating for justice and healing”. The IRSSS seeks to give voice to survivors, maintain traditional values, encourage unity among survivors, communities, and agencies to mend divisions created by the residential school system.

The organization provides support to survivors and outreach workers through counseling, court, informational, and referral support to IRSS, educational programs and workshops to raise awareness and train community members, and research initiatives. It has also published a resource kit entitled “Survivor’s Guide to Current Residential School Issues”The IRSSS publishes news bulletins that provide information regarding the settlement process for survivors and their relatives, as well as frontline workers. The IRSSS also provides workshops on a variety of topics, including issues that often arise for survivors and their families. In addition to workshops, the IRSS created a National Residential School Survivor Support Line to provide emotional and informational support. Aboriginal counselors, who are all themselves direct or intergenerational residential school survivors, are available 24 hours a day, 7 days a week. They provide counseling services and referrals to information and resources regarding residential school survivor issues. The IRSS also publishes a monthly newsletter, entitled “The Survivors Journey”. The newsletter seeks input from individuals in the form of survival story, art, photos, and poems.

In relation to the TRC, it provides updates and new bulletins regarding various aspects of the settlement agreement, such as CEP payment information and calls for commissioner applications.

Native Residential School Survivors Society (www.nrsss.ca)

Incorporated in 2005 as a Not For Profit Society, The National Residential School Survivors’ Society (NRSSS) was created by the consensus among regional residential school survivor groups of the need for a national representative organization. The mission of the NRSSS is to act as advocates for survivors, their families, and communities, and to serve as a catalyst for the “empowerment, healing, reconciliation and justice”. The NRSSS provides information and direction to survivors regarding compensation issues, commemoration events, and truth and reconciliation initiatives. Its purpose includes acting as a non-political representative to mediate the relationship between survivors and government and churches, as well as to advise both government and Aboriginal Political Entities on residential school issues. It also strives to educate the general public about the Residential School legacy in order to ensure that it is understood and not forgotten. Additionally, it serves to facilitate networking among survivor groups. At their Annual General Meeting held September 16th-17th, resolutions passed included:

  • a plan for the NRSS Executive Board to meet with the AFN to discus the changing policy of using focus group and meetings between AHF staff and survivors
  • that the government be required to identify new funding sources outside of the agreement to mark and maintain sites similar to heritage and burial sites
  • developing a strategy to recognize those who passed away in residential schools
  • active support for the creation of a National Indian Residential School Museum of Canada and the creation of a National Board to oversee it
  • to negotiate with the TRC to ensure that there is one male and one female IRS survivor and one intergenerational survivor to act as sub-commissioners in each region

The NSSS’s website also provides links to news bulletins, their monthly newsletter, editorials, survivor photos and stories, and commemoration dates, as well as information regarding the settlement agreement, compensation payments, and missing or lost records.

Residential School Survivor’s Society of Alberta (Edmonton Survivors’ Society)

The Residential School Survivor’s Society of Alberta, located in Edmonton, was formed in 2005 in response to increased attention to Residential School issues. The group holds monthly meetings and has over 80 members to address issues such as lack of or inaccuracy of information regarding residential schools, the absence of programs and services for survivors and their families.

In order to address these concerns, the society is awaiting a response to their request for funding to establish and office and provide services. The society is currently trying to network with other local groups across Alberta to implement such services, especially given that Alberta was the locale for more residential schools than any other province in Canada.

Manito Nodin ‘Spirit Wind’ Survivors

Manito Nodin Spirit Wind Survivors (Spirit Wind) was established in 2000 to maintain and disseminate information about the IRSSA to survivors in Manitoba. The society serves as a “watchdog group”, and strives to help survivors shape the development of strategies for coping with, healing from, and reconciling with the legacy of residential schools. In doing so, Spirit Wind is committed to maintaining unity and building strength among residential school survivors.

Spirit Wind has received funding from Indian Residential School Resolutions Canada to host gatherings for residential school survivors for one year. These gatherings will focus on educating survivors about financial investment and wills and estates.

Children of Shingwauk Alumni Association (CSAA)

CSAA is Ontario chapter of the NRSSS, which provides information focusing mostly on the Shingwauk residential school history. The Shingwauk Project is being implemented in conjunction with The Children of Shingwauk Alumni Association and Algoma University College. It involves gathering information regarding the history and activities related to Shigwauk Hall in order to educate the public about its history. The CSAA website includes numerous photo galleries from various sources, historical information and timelines detailing the establishment and running of the Shingwauk residential schools, personal stories from survivors of the school. It also provides news updates, and information regarding the settlement agreement as well as settlement payment application forms.

Assembly of First Nations – Indian Residential Schools Unit Since its establishment in 1998, the IRSU has been urging the federal government “to address the historical effects of the Indian Residential school system”. The goal of the IRSU now it to promote the expedient settlement 

The AFN IRSU’s goal is to work with Indian Residential Schools Resolution Canada to encourage the expedient settlement of the IRS claims. Through analysis and implementation of policies and judicial developments and research, and through informing potential claimants and First Nations communities about their options, the AFN strives to help the IRSRC to establish an effective procedure in this area. The AFN IRSU also supports the development of traditional healing programs, activities that promote public education and awareness, and commemoration initiatives. The website provides information regarding the settlement agreement, claim forms (CEP and IAP), informational resources regarding residential schools, and notice of current events, such as workshops. It also provides updates regarding current events and the settlement process. Additionally, the AFN IRSU is creating a database of residential school survivors to keep them updated on information regarding residential school issues that affect survivors, their families, and their communities. While this seems to be mainly for CEP purposes, it is also informational, and might be useful in relation to the TRC process. Assembly of Manitoba Chiefs In order to address the need for coordinated political action in addressing common issues being experienced in First Nation communities across Manitoba, in 1988, the Chiefs of Manitoba came together to eventually form the AMC. The committees address issues such as child welfare, economic issues, self-determination and treaties, and health and social development. The AMC is not itself a survivor group, however, it provides support to survivors of residential schools, their families and communities. They have hosted a national conference to discuss the issues with arise surrounding residential schools, and continue to publish annual reports which contain updates on and information regarding residential school issues. The most recent conference included discussion regarding how to ensure that the positive aspects of the IRSSA are maximized and the negative effects are minimized. Initiatives also included networking with Aboriginal groups, IRSSS groups, to share information regarding how to serve the best interests of survivors. Since the settlement agreement, the AMC has created a “Residential School Coordinator” position to help claimants negotiate settlements. the AMC’s Residential School Compensation Coordinator has been working to ensure that all eligible First Nations in Manitoba are notified as such. The AMC has also requested funding from IRSRC to travel to aboriginal communities in Manitoba to provide them with much requested information regarding the settlement process.

Section III – Healing Initiative Aboriginal Healing Foundation (AHF) Section 3.02 of the Settlement Agreement provides for a “Healing Fund” in which 125 million dollars will be granted to the Aboriginal Healing Foundation. The AHF is a non-profit corporation, which was established under the Canada Corporations Act, to address both the direct and the intergenerational healing needs of Aboriginal People affected by the Indian Residential Schools legacy. The AHF offers financial support to community-based healing initiatives, most of which focus on healing initiatives for Indian Residential School Survivors and their families. The implementation of a range of programs are funded in Aboriginal communities across Canada, from individual and group therapy, combinations of traditional and clinical therapeutic techniques, workshops, to survivor networking and information dissemination. Projects focus on increasing cultural pride, reducing shame, providing a safe environment in which survivors can tell their stories, and dealing with other negative effects arising from the Residential School legacy.

This endowment will fund a 5-year extension of the Aboriginal Healing Foundation’s initiatives targeted to Residential School Survivors. Specifically, it will allow the continued funding of AHF’s 144 existing projects until March 31, 2010, and ten healing centres until September 30, 2011. The Communications and Research projects of the AHF will also continue for three years. The AHF has reported that it takes an average of ten years to be able to reach out to community individuals and create a safe environment in which participants can engage in healing.

At this point, “Twenty percent of communities receiving funds from the AHF are just beginning their healing; Sixty-six percent of communities accomplished a few goals, but much work remains to be done; Fourteen percent of communities accomplished many goals, but some work remains.”Unfortunately, the AHF does not have adequate funding to support approximately 2/3 of the projects for the requisite 3 year period that it deems necessary in order to identify, reach out, and initiate therapeutic healing programs. AHF is not currently accepting new project proposals.

All of the projects that are funded by AHF have some residential school survivor aspect to them. Project goals range from raising awareness and educating community members about residential school and their impact, providing healing and counseling services for survivors, their families, and the larger community, to networking and building relationships among survivors. Some initiatives are tailored to a specific subset of survivors (gender, substance abuse issues, anger management, domestic violence, for example) while others are targeted to the broader community.

By |October 20th, 2007|News Releases|

Recapping Recent CLAIHR Initiatives

Counsel for CLAIHR prepared motions to intervene in two high-profile appeals to the Supreme Court of Canada, Charkaoui and Almrei. Both cases pertained to the constitutionality and proper interpretation of the security certificate provisions of the Immigration and Refugee Protection Act (IRPA). These provisions create a regime whereby a person may be detained and deported from Canada on national security grounds even in cases where that person faces a serious risk of torture if returned to his or her home country.

By |March 5th, 2007|News Releases|