International Criminal Law Review 10 (2010) 111–135 © Koninklijke Brill NV, Leiden, 2010 DOI 10.1163/157181209X12584562670938 brill.nl/icla International Criminal Law Review Canadian Genocide and Official Culpability Zia Akhtar* Member, Grey’s Inn, London, UK Abstract In the last 20 years the native people of Canada have asserted their sovereignty by rejecting their status as wards. Th eir subordination had caused removal of their children to boarding schools to remerge as imitation white adults. It involved the purging of their own culture, including language, names and religious symbols. There is now evidence that there were thousands of preventable deaths in these schools, because the conditions were criminally negligent and the teaching was backed up by corporal punishment. In response to these allegations the Canadian government has set up a Truth and Reconciliation Commission, but it lacks any investigative or punitive powers. As it has no right to compel witnesses, the First Nations have established their own International Human Rights Tribunal into Genocide in Canada (IHRTGC). This has the objective of presenting evidence to the United Nations in order for a court to be empowered on lines of an international tribunal investigating crimes of ethnic cleansing to try the officials of the government and the Churches. Will the redress the IHRTGC is seeking stand the test of evidence that proves beyond reasonable doubt the culpability of the accused? Can the appropriation and abuse of aboriginal children be abated? What kind of compensation will be payable once guilt has been proved? Keywords colonial authority ; guardianship ; assimilation ; residential schools ; eugenics ; evidence of genocide ; precedence ; compensation 1. Background 1.1. Colonial Mandate The indigenous people of Canada have set up a tribunal to investigate the crimes that accompanied the abduction of their children. The native people of Canada have been overshadowed by their brethren over the border in the US at international treaty forums. They have not been in the limelight as often as the warrior tribes that dominated the American West in the momentous Indian wars of the nineteenth century. This has changed since the 1990s, when the Mohawks engaged in a confrontation with the Canadian army over a burial *) LLB (Lon) LLM (Lon). The author specializes in the affairs of Native Americans and his articles have appeared in several refereed journals. 112 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 grounds dispute. 1 Since then the First Nations have been resurgent in trying to correct the past wrongs done to them. The abuse of indigenous children is now in the process of being documented and as the evidence emerges from the cases and newspaper reports the tribes have set up an Indigenous Human Rights Tribunal. Th is has a broad mandate to seek disclosure against the official wrongdoing, and to seek the indictment before an international criminal court of those responsible for the suffering. The authority in the form of guardianship over indigenous people in Canada goes back to the colonial era when the Royal Proclamation Act of 1763 was passed. It established the basis of administration in the North American territo- ries formally ceded by France to Britain in the Treaty of Paris after the Seven Years War. Th is established a constitutional framework for the Crown to negoti- ate with the indigenous tribes whose behaviour was regulated within its broad framework. 2 In laying the foundation of a policy of forced assimilation there was a strategy that was driven with an imperative to expand the colonial influence over the continent. This chimed with other British outposts, such as India where an impe- rial project was underway to impose European cultural/social models upon the peoples of the sub-continent. 3 It set in motion the imposition of norms that went beyond the political and economic systems into what was the cultural domain of indigenous people whose younger generations were deemed fit for transformation. In this article I will explore the consequence of this experiment in North America, or more specifically Canada, where the native children were on the receiving end of this policy. They were boarded up in residential schools as a part of psychological grooming to refashion them as different beings from their par- ents. Th e premises of this approach were quite brutal, but it had official sanction as the Royal commissions established by the British show in their detail. 1) The dispute erupted at two locations outside Montreal where the Oka town council decided to expand a nine-hole golf course into a pine forest that the Mohawks claimed belonged to their tribe. Some members of the tribe from the Kanesatake settlement near Oka erected barricades on the road that runs across the disputed territory and this caused the Mounties to be called to deal with the crisis. 2) Many Indians who lived in the Great Lakes region had a close relationship with France, and were dismayed to find that they were now under British sovereignty. The proclamation created a bound- ary line between the British colonies on the Atlantic coast and American Indian lands. The procla- mation outlawed private purchase of Native American land, and all future land purchases were to be made by Crown officials. Colonial officials were forbidden to grant lands without royal approval, giving the Crown a monopoly on all future land purchases from American Indians. 3) Lord Macaulay, who served as law minister to the Governor General in India between 1834- 1838 made English the language of instruction in public schools. He advocated the growth of a class he called “Indian in blood and colour, but English in tastes, in opinions, in morals and intel- lect” (Asma Barlas, Democracy, Nationalism and Communalism , Th e Colonial Legacy in South Asia , Boulder, CO: Westview Press, 1995 p. 57 ). Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 113 Th is is a developmental piece that catalogues the self-help remedies that the native people have forged in order to arrive at the truth as to what happened in the residential schools. As this process was not exposed at the time it was hap- pening there is an examination of the conspiracy theory and the methodologies that the indigenous people have adopted in setting up an investigative tribunal. It examines its constitution and the international precedents to evaluate the pos- sibilities of success in collating evidence and bringing charges against the upper echelons of the Canadian hierarchy. 1.2. Mechanisms of Control Th e plan to assimilate native people commenced in the early 1800s and was directed at indigenous children. By 1844, the Royal Bagot Commission of the United Province of Canada was established to examine Aboriginal education. 4 Its recommendation was training native students in as many manual labour or indus- trial schools as possible, isolated from the infl uence of their parents pupils would imperceptibly acquire the manners, habits and customs of civilized life. Th is created the blueprint for residential schools that would be state-funded, church-administered boarding houses. It took a few years to take shape, and it was not until 1892 when the government and the religious establishment settled into a broad framework to manage and sustain these schools. The legislative instruments were the Gradual Civilisation Act of 1857, and the Gradual Enfranchisement Act of 1869, that had the explicit aim of absorbing the indige- nous people by proactive integration offered in the form of sticks and carrots. The GCA awarded fifty acres of land to any indigenous male deemed “sufficiently advanced in the elementary branches of education” that would automatically “enfranchise him”, removing any tribal affiliation or treaty rights. 5 The GEA had a compulsory enfranchisement provision that changed the com- pletely voluntary process, by which Indian status could be lost at an individual’s choosing. Under the Chapter 42 Aboriginal women who married non-Aboriginal men automatically lost their Indian status, regardless of whether or not they so desired it. Moreover, any children resulting from the marriage would also be denied Indian status. This provision continued with the strategy of assimilation, as many Aboriginal women, and their children, forcefully lost their Indian status and gained Canadian citizenship. 6 Th is patronage in familial matters was sanctioned at the highest level when the British Prime Minister Sir John McDonald commissioned Nicolas Flood Davin 4) Governor General Sir Charles Bagot reviewed the living conditions of Indians from 1842-44. 5) The GCA of 1857, Chapter 26 was subtitled An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians 6) The GEA was subtitled the Act for the “gradual enfranchisement of Indian better management of Indian affairs and to extend the provisions of the Act 31 st Victoria. 114 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 to write a summary on the boarding schools. His Report on Industrial Schools for Indians and Half-Breeds 7 was compiled in Ottawa in March 1879, in which he argued that residential schools would be the principle feature of the policy known as “aggressive civilisation”. It led to public funding for the educational sector, and it became known as the residential school project ushering in the period of board- ing schools for native children except in New Brunswick and Prince Edward Island, the small maritime provinces. 8 1.3. Institutionalising the Children In 1892 an Order in Council had the effect of the government and the churches jointly administrating schools. 9 The stock and supplies such as books were provided from government appropriation, but maintenance, salaries and other operating expenses were paid for by the Church authorities. The government regulations also set standards of instruction and domestic care, and inspectors were appointed to enforce them. The children were held under loco parentis by the representatives of the clergy. By 1896, the Canadian government had funded forty-five church-run residential schools, and by the dawn of the 20 th century there were more than 100 residential schools operating in the country. 10 One such school was apportioned for the Mohawk tribe, which straddles both the US and Canada. This institution commenced during British rule and was called the Mohawk Institute Residential School. It was set up in 1831 by the New England Co., a Protestant missionary society and its express purpose was to con- vert and civilize the “wild” native. Th is school was later run by the Anglican Church, and controlled by the federal Department of Indian and Northern Aff airs. 11 The school was called the ‘Mush Hole’ and native children who were billeted there were forbidden from speaking the Mohawk language, or from practicing their customs. The harrowing regime inside the school is described by author Geronimo Henry as entailing being awoken at 6 am in the morning and being off ered a diet of an oatmeal-only breakfast. 12 His experience at this institution caused him to suffer from post-traumatic stress disorder that he links directly to his years at the school. 7) John McDonald, papers, Vol 71 27925; Citizen, S March 1891. 54. 8) Imperial Order in Council dated 16 May 1871 clause 13. The Order governed the financing of Indian residential schools until 1958. 9) This distinction means that the schools authorities were the legal guardians of the children. 10) Jorge Noreiga, American Indian Education. Introduction for Subordination to Colonialism . Boston, MA: SE Press, 1992, pp. 371-402. 11) The benefactor was the Society for the Propagation of the Gospel in New England and the Parts Adjacent in America, usually known as The New England Company (NEC). 12) The Lost Generations , Aboriginal Healing Foundation (2002). Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 115 Th ere was prima facie negligence in the way health and safety was disregarded by overcrowding and the mixing of healthy and unhealthy children. The resulting transmission of contagious diseases is borne out by the findings of Dr Peter Bryce, who was appointed Medical Inspector by the Department of Indian Affairs in 1907. He reported that poor sanitation and a lack of medical care caused TB cases to reach an epidemic scale. Dr Byrce’s fi ndings show that between 1894 and 1908 mortality rates at resi- dential schools in Western Canada and British Columbia ranged from 35% to 60% in the first five years of the pupil’s admission into the schools. The medical report discloses a death rate of 40% from TB, and it also alleges that staff and church officials regularly withheld or falsified records, and other evidence of chil- dren’s deaths. These statistics did not become public until 1922, when the doctor was no longer working for the government and had the opportunity to divulge them. 13 Th ese fi ndings were later corroborated by the DIA commissioning two further reports in 1920 and 1922 under Dr. F. A. Corbett who visited the schools in the west of the country. He discovered that at the Ermineskin School in Hobbema, Alberta, 50% of the children suffered from TB. At Sarcee Boarding School near Calgary, all 33 students were “much below even a passable standard of health” and “all but four were infected with TB”. When he entered a classroom he found sixteen of the children, many of them near death, were still being made to sit through lessons. 14 At the time when the medical findings were first published in the ‘Ottawa Citizen’ newspaper, the high mortality rates Bryce had witnessed were deemed by him to frequently be preventable, because healthy children were being con- fined with those who had developed illnesses. 15 However, in 1908-1909, Duncan Campbell Scott, the Superintendent of Indian Affairs, suppressed all medical evidence and conducted a smear campaign. 16 As a consequence Bryce was expelled from the civil service, and the following year in November 1910, a joint agreement between the federal government and the Roman Catholic, Anglican, Presbyterian and Methodist churches established the structure of Indian Residential Schools and the contractual obligations of churches running them. 17 13) The Story of a National Crime: Being a Record of the Health Conditions of the Indians of Canada from 1904 to 1921 . (Ottawa, 1922). 14) John S. Milloy, A National Crime: The Canadian Government and the Residential School System 1879–1986 . University of Manitoba Press (1999). 15) 15 November 1907, under the headline ‘Schools and the White Plague’. 16) Richard Henry Pratt, Robert M. Utley (eds.), Battlefield and Classroom 1867-1904 , Lincoln, NE: Univ. of Nebraska Press, 1964, pp. 260, 265 17) This is known as the Settlement Agreement in which the contractual role of the Churches is set out for the managing the Indian Residential schools. 116 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 Th is policy was referred to by Scott as a way of seeking a ‘final solution to the Indian Problem ’. He outlines the purpose of the schools in his motto: to kill the Indian within the Indian ’. 18 In May 1919, despite an escalating death rate of Indian children in residential schools from consumption that in some case ran as high as 75%, Scott abolished the post of Medical Inspector for Indian residential schools. Within two years, deaths due to the diseases tripled in the schools and this was exacerbated by the passage of the Indian Act in 1920 that made it man- datory for every Indian child to be sent to residential schools upon reaching seven years of age. 1.4. Missionary Goals of Conversion Th e legal definition of an Indian at the time when this programme of residential schools was in operation was as “an uncivilized person, destitute of the knowledge of God or any fixed and clear belief in religion”. 19 The implications of this was a policy that was driven by a political motive found in the statement of Alfred Caldwell, principal of the United Church School in Ahousat on Vancouver Island’s west coast in 1938 who viewed the Indians as immoral beings. 20 His report states: “At our school we strive to turn them into mature Christians who will learn how to behave in the world and surrender their barbaric way of life and their treaty rights which keep them trapped on their land and in a primitive existence”. 21 However, there was a biological dimension to this policy manifested in the Sexual Sterilization Act of 1928 passed in Alberta that allowed any inmate of a native residential school to be sterilized upon the approval of the school princi- pal. As a consequence there were approximately 3,500 Indian women who became victims of this law. 22 In 1933, an identical SSA was passed in British Columbia, and two major sterilization centres were established by, firstly, the UC of Canada on the west coast, and a second one in Bella Bella and Nanaimo, in 18) Leslie John, Th e Historical Development of the Indian Act, second edition (Ottawa: Department of Indian Affairs and Northern Development, Treaties and Historical Research Branch, 1978, p. 114.). 19) Revised Statutes of British Columbia, 1960. 20) Archives of Department of Indian Agents RG 10 Series ( Correspondence of BC residential schools and dept of Indian Affairs) DIA archives, doc+ AWI -353988. 21) The same principal is named by an eyewitnesses to be the murderer of at least two children, one of them in the same month that he wrote this letter.They were Massie Shaw and Albert Gray both from the Albion United Church School. 22) The Alberta Eugenics board has stated that Alberta SSA of 1928 between 1928 to 1972, per- formed both compulsory and optional, sterilisations on nearly 3000 “unfit” individuals of varying ages and ethnicities. In total, over 2800 procedures were performed. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 117 which thousands of native men and women were injected by missionary doctors until 1972, when the SSA was overturned. Th ere is evidence that has come to light of more sinister experiments such as ‘Project Paperclip’. 23 Th is was a CIA master plan launched in 1946 utilizing eugenics specialists in medical, biological warfare and mind control experiments that used native children as involuntary test subjects, under agreements with the Catholic, Anglican and United churches. 24 The medical experiments were con- ducted in government hospitals in Nanaimo, Brannen Lake, Sardis, Bella Bella, Vancouver, Victoria, British Columbia; Red Deer and Ponoka, Alberta; and at the Lakehead Psychiatric Hospital in Thunder Bay, Ontario. All of these pro- grams used native children abducted from reserves, residential schools, and foster homes and it has been alleged that it was with the full knowledge of church, police and Indian department officials. 25 In 1969 the Department of Indian Affairs finally took the step of taking con- trol of the residential school system from the churches. It brought the boarding houses to an end that ran officially from 1879, but it did not bring about a change in the national policy. However, the Indian Affairs Minister Jean Chretien tabled a White Paper in Parliament, which reaffirmed the “assimilationist” policy of the past century that denied sovereignty and equal status to native nations. As a consolation gesture, Chretien assigned limited control over Indian education to state-funded local councils. 26 1.5 Complaints of Abuse Filter Through Th e first ripples of the human cost of residential schools came in 1990 when Phil Fontaine, Chief of the Manitoba went public as the first Indian leader to tell the story of his own abuse in residential schools and call for recognition of the abuse, compensation and an apology for the inherent racism in the policy. 27 It took 23) The operation ‘paperclip’ ran officially from 1945 until 1957 when West Germany protested to the US for utilising its scientists from the Nazi era in mind-control experiments. 24) The three major sterilization centres became R.W. Large Hospital in Bella Bella (B.C.), the Nanaimo Indian Hospital, and Charles Camsell Hospital in Edmonton. 25) One of those institution accused of sponsoring the CIA-run secret experiments was the Charles Camsell Hospital. This existed from 1942 and its closure in 1996, when it passed through initially as a U.S. Army hospital, a tuberculosis hospital/ research center for Inuit and First Nations patients (many of them forcibly removed from their communities and loaded onto “hospital ships”), and an adjunct facility to Edmonton’s residential school located on the hospital grounds (this facility burned down in 2000). Kevin Annett’s book, Hidden from History (2nd ed., 2005), catelogues Cold War medical exper- iments that were allegedly conducted on students of the Edmonton residential school. Survivors have described being exposed to X-rays for more than 5-10 minutes at a time, several times a week. 26) Royal Commission on Aboriginal Peoples. People to People, Nation to Nation , 1996, ISBN 0-662- 25044-3; Cat. no. Z1-1991/1-6E. 27) In July 1997 Phil Fontaine became the leader of the First Nations Assembly, which is recognised as the official body by the Canadian government acting on behalf of the indigenous nations of Canada. 118 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 another four years before there were eyewitness accounts to deaths that came from the United Church’s Alberni residential school who were able to publicly disclose their experiences when they were incarcerated. The evidence began to be collated when a campaigner, Reverend Kevin Annett raised the issue with the senior echelons of the Church hierarchy. 28 Th is led to the churchman’s expulsion in February 1996 from this US Alberni Church residence, but it had the galvanising effect of commencing class action lawsuits, and on 12-14 June, native survivors organised the first referral to the International HR Tribunal of American Minorities (IHRAAM) on residential schools in Vancouver. 29 This enabled evidence from dozens of native witnesses based on the allegations that the government of Canada and the Catholic, United and Anglican churches were guilty of complicity in genocide. Th e evidence presented included the account of a diseased eyewitness, Ethel Wilson of Bella Bella, BC, a United Church missionary doctor, that Dr George Darby, deliberately sterilised non-Christian Indians between 1928 and 1962 at the R.W. Large Memorial Hospital in Bella Bella. 30 According to another eyewit- ness, Christy White, a resident of Bella Bella, records of these government-funded sterilisations at the R.W. Large Hospital were deliberately destroyed in 1995, soon after a much-publicised police investigation was to open into residential school atrocities in British Columbia. 31 Another survivor, William Sport testified that fatalities happened as a result of diseases in the residential schools. 32 In October 1998 there was an admission by the UC lawyers that the churches had engaged in a joint cover-up with the federal government of alleged crimes committed at its Alberni Indian residential school since at least 1960. 33 The cases come to the fore that reveal information about the abuses that were prevalent in 28) Rev. Annett was at the St Andrews Church where he tripled the size of the congregation from 1992 to 1996. He was expelled without due process when he raised the issue of the deaths in the schools. 29) This had the mandate to conduct an independent inquiry into Canadian Native “Residential Schools” and their legacy. 30) The testimony of Ethel Wilson to International Human Rights Association of American Minorities [IHRAAM] Tribunal, Vancouver, BC, 13 June 1998 was; ‘Doctor Darby told me in 1952 that Indian Affairs in Ottawa was paying him for every Indian he sterilised, especially if they weren’t church-goers. Hundreds of our women were sterilised by Doctor Darby, just for not going to church.’ 31) Christy White, a resident of Bella Bella testified: ‘I worked at the Bella Bella hospital, and I know that Barb Brown, one of the administrators there, dumped sterilisation records at sea on two occasions. Some of the records were found washed up on the beach south of town. That was just after the cops opened their investigation into the schools, in the spring of 1995.’ 32) Testimony of William Sport that he set out to the tribunal at Port Alberni, BC, 31 March, 1998. ‘ Reverend Pitts, the Alberni school principal, he forced me and eight other boys to eat this special food out of a different sort of can. It tasted really strange. And then all of us came down with tuberculosis.’ 33) This was first in a series of admissions that were taken as confessions by the United Church of Canada in the various litigation that was in the Courts. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 119 these schools. There was also new eyewitness testimony of paedophiles employed by the Roman Catholic Church, such as Martin Saxey, who worked as a dormitory supervisor at its Christie Indian Residential School in Tofino, British Columbia, during the 1960s. It was reported that Saxey subsequently raped and terrorized children at this school without ever being reprimanded or prosecuted. 34 Subsequently, an admission emerged in April 2000, when the Federal Health Department stated that it had used native children from four residential schools, including Port Alberni, in medical experiments during the 1940s and 1950s, including the deliberate denial of vitamins and dental care to them to study the effects. This was reported in the Vancouver Sun 35 Th en there followed the most significant of all the media exposures of the scan- dal, when the CTV’s film of a First Story documentary featured eyewitness accounts to murders in boarding houses in Vancouver. 36 The programme was aired simultaneously in Winnipeg, Toronto, and Halifax in which native survi- vors of schools gave their summaries. On the same show, United Church official Brian Thorpe admitted for the first time that criminal actions happened in his church’s residential schools, validating the claims made by the survivors of the institutions and his own lawyer. 37 1.6. Native Peoples File Charges Th e forty-eight survivors and non-native activists under activist Rev. Annett formed a pressure group setting out the task of indicting those responsible by taking a form of private prosecution against churches, the RCMP and the govern- ment of Canada. This became known as the ‘Truth Commission’ and it relied on the six year investigation of genocide in Canada listed in Annet’s catalogue of testimonies called “Hidden from History: The Canadian Holocaust” published in February 2001. 38 It caused a steep rise in the civil law suits against the Canadian government and Church institutions. By 2001 there were 12,000 claimants suing Ottawa for compensation, whereas only 1000 plaintiffs chose to enrol on the new officially sponsored Alternative Dispute Resolution process. In bringing legal proceedings there were five class actions seeking certification that were the Cloud Class Action 34) Martin Saxey was a convicted offender who was employed at the Christie Residential School. 35) Vancouver Sun , 26 April 2000. 36) On 27 April 2002 the First Story documentary, thirty minutes of news dedicated to the First Nations of Canada aired the show that exposed the sexual abuse crimes for the first time. 37) Brian Thorpe, Head Officer of UCC mention that there was deliberate and joint cover-up of these crimes with the federal government since at least 1960, and his own lawyer Mr. Hinkson admit- ted that at the Alberni residential school, the UC ... and its officers, have engaged and are engaging in such crimes, cover-ups, lies, and Genocidal acts. canadiangenocide.nativeweb.org/thorpe.html. 38) Kevin Arnett, Hidden from History, the Untold Story of the Genocide of the Indigenous Peoples of Canada , Truth Commission of Canada (Revised edition, 2004). 120 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 representing plaintiffs in Ontario; the Baxter Class Action representing plaintiffs in Ontario; the Dieter Class Action for western Canada claimants; the Pauchay National Class Action seeking to represent victims across Canada; and the Straightnose Class Action for claimants in Saskatchewan. Th ere were some landmark judgments such as Blackwater v. Plint 39 where there was an appeal arising from a claim where the Government of Canada and the United Church operated an Indian residential school in British Columbia from the 1940s to the 1960s. Here Aboriginal children were taken from their families pursuant to the Indian Act 1953, and were subjected to corporal punish- ment, and in the appellant’s (B) case were repeatedly and brutally sexually as - saulted. Four actions were commenced in 1996 by former residents of the school claiming damages for sexual abuse and other harm. The trial judge found that all claims other than those of a sexual nature were statute barred and P the dormi- tory supervisor was held liable for sexual assault. Justice Bremner ruled that the federal government was liable for the assault as it had breached its non-delegable statutory duty, and, also because it was held vicariously liable for these wrongs with the Church. The damages were appor- tioned 75/25% respectively. At the Court of Appeal stage, the doctrine of chari- table immunity exempted the Church from liability and placed all liability on the government on the basis of vicarious liability. B’s award won an additional $20,000 for loss of future earning opportunity. In the Supreme Court the appeal by B to restore the other causes of action such as forcible imprisonment was rejected and the government’ s appeal was allowed in part. The ruling by the trial judge on the issues of joint vicarious liability against the Church and Canada, and assessment and apportionment of damages, was restored. In another ruling in HL v . Canada (Attorney General) , 40 L brought an action for sexual battery against S, who worked on a First Nations reserve and the fed- eral government for acts that had occurred 20 years earlier when he was about 14 years old. S had sexually abused L on two occasions which L stated caused him to become a dropout at 17, and to be a drifter at employment between 1978-1987. During that time, he drank heavily, was incarcerated frequently and relied on social assistance to meet his needs. The evidence given by L and two expert witnesses satisfied the trial judge that L’s poor employment record between 1978-1987 was attributable to his alcoholism, emotional difficulties, and crimi- nality, which were in turn attributable to the sexual abuse perpetrated by S and that his work record was a reflection of this condition. Th e trial judge found that the criteria for the imposition of vicarious liability on the government had been met and awarded L redress, pecuniary damages for 39) (2005) AILR 69. 40) ( 2005) 1 SCR 401. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 121 loss of past and future earnings and pre-judgment interest. The Court of Appeal dismissed the federal government’s appeal as it related to vicarious liability and to the award for non pecuniary damages, but allowed the appeal in relation to pecu- niary damages and pre-judgment interest. The Court set aside the award for pecu- niary damages for loss of past and future earnings on the ground that, on its assessment of the evidence, the evidence fell short of proving the loss. At the Supreme Court the appeal was allowed in part and the trial judge’s award of past earnings was restored, but the sum was reduced for the time that L had spent in prison. C.J. McLuahlin ruled that S’s sexual abuse of L that caused his loss of income due to imprisonment, was both contrary to judicial policy and unsupported by the evidence. L’s lack of gainful employment caused by his imprisonment resulted from his criminal conduct, not from his abuse by S or from alcoholism. The fact that a person has had emotional and substance abuse problems which in the past have impacted on his earning capacity, is not in itself sufficient basis for concluding on the balance of probabilities that this state of aff airs will endure indefinitely. In another judgment Bazley v . Curry, 41 a compensation award based upon the vicarious liability test took into consideration the institutional abuse and control exercised by staff over the perpetrator of the crimes. The defendant was a volun- tary organisation that operated two children’s homes for the treatment of emo- tionally troubled children, and it had complete supervision in all aspects of the lives of the children that it cared for. It had hired C, a paedophile to work in one of its homes without knowledge of his background but after undertaking checks. C was dismissed after a complaint was made against him, and he was then con- victed of 19 counts of sexual abuse, two of which related to the Claimant. The Claimant sued the Defendant and one of the issues was whether the institution was vicariously liability for the actions of its employee. The trial judge and the Court of Appeal both found that the charity was liable. The Canadian Supreme Court considered whether the wrong was connected to an unauthorised act to be regarded as a mode of doing that act. It ruled that the Defendant had authorised the abuser to put the child to bed, and the abuser committed the sexual abuse whilst putting the child to bed. This attached to the Church a vicariously liable for the commission of the act and liability in damages. Th is outcome established vicarious liability in the syndrome of institutional abuse which was in addition to individual fault, even if the perpetrator was a non profit organisation. 42 41) (1999) 2 S.C.R. 534. 42) Justice McLachlin held “The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability __ fair and efficient com- pensation for wrong and deterrence. This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the 122 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 1.7. Government’s Mitigation Offer However, the number of civil actions brought by residential school survivors had shot up to over 10,000 causing the federal government to introduce the Residential School Abuse Lawsuits Act of 2000. This served to limit the number of such law- suits by setting aside the statute that had opened the floodgates. 43 The government also announced that it will assume primary financial responsibility for both for residential school damages and the legal expenses of the churches which ran the schools. As a consequence in June 2001, the ‘Indian Residential Schools Resolution Canada’ (IRSRC) emerged as a new department of the federal government. Its mis- sion was to provide alternative means of compensation and support to the victims. In late 2003, the Alternative Dispute Resolution process was launched. The ADR was a process outside of court providing compensation and psychological support for former students of residential schools. On 23 November 2005, the Canadian government announced a $1.9 billion compensation package to benefit tens of thousands of survivors of abuse at these institutions. Th ere was a Settlement Agreement advanced in May 2006, with the proposal to fund the Aboriginal Healing Foundation as well as an individual Common Experience Payment, which became available in September 2007. Any person who can be verified as attend- ing a federally run Indian residential school in Canada is entitled to an amount that is calculated on an incremental basis depending on the years attended when it is proportionally increased. Moreover, after 10 years of pressure to make a formal apology the Canadian government became the first government of a Western nation to apologise for the residential schools system. On 11 th June 2007, when Prime Minister Steven Harper made his eulogy 44 by acknowledging in Canada’s House of Commons the role of the government in incarcerating children and their abuse in the residential schools. As a consequence the government launched the Truth and Reconciliation Commission in July 2008. 45 Th is will host events across the country to raise awareness about the residential school system and provide former students, and anyone who has been affected by peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.” Para. 46. 43) This overruled the Crown Liability Proceedings Act 1985. 44) All News Communique All News, 11 June 2008 L Serv. PMO-CPM. “The treatment of chil- dren in Indian residential schools is a sad chapter of our history. Some sought, as was infamously said, to kill the Indian in the child. This policy was wrong, caused great harm and has no place in our country.” 45) The government’s TRC states in its preamble that it is not intended to determine guilt or inno- cence, but to create a historical account of the residential schools; help people to heal; and encour- age reconciliation between aboriginals and non-aboriginal Canadians. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 123 the Indian Residential School legacy with an opportunity to share their individ- ual experiences in ‘a safe and culturally appropriate manner’. The TRC has a five year timescale which will prepare a publicly accessible report for all Canadians. Th is is aimed to provide a form of restorative justice, i.e. of the intention of heal- ing and prescribes a cure, rather than inflict any form of retribution, for the wrongdoers to be punished in an exemplary way. 2. Indigenous Human Rights Tribunal 2.1. Spirit of the Document Th e First Nations who were demanding an inquiry into the criminal abuses car- ried out in the former residential schools received a tremendous boost on 11 April 2007, when the Human Rights Council in Geneva approved the Declaration of Rights of the Indigenous People. The First Nations responded with the setting up of the Indigenous Human Rights Tribunal into Genocide in Canada. When the General Assembly adopted the Declaration that September despite opposition from Canada, US, Australia and New Zealand it provided moral imperatives for native peoples to seek restorative justice. This principle would entitle them to pursue criminal cases against the personnel responsible and demand compensa- tion on behalf of those who had been the victims. Th e Declaration’s preamble welcomes the fact that indigenous peoples are organizing themselves into viable socio- economic entities in social and cultural enhancement. Article 3 states: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Th e declaration compels the countries where there is a large body of indige - nous people to take effective measures to change the status of its native inhabit- ants. Th is has a resonance that will be hard to ignore for any government, including that of Canada, which is one country it mentions by name. Article 6 states: Indigenous peoples have the collective right to live in freedom, peace and security and to be protected from the total destruction of their nation or any act of violence including the removal by Canada of Indigenous children from their families for any reason.” Th