International Criminal Law Review International Criminal Law Review 10 (2010) 111–135 brill.nl/icla 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. Their 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. © Koninklijke Brill NV, Leiden, 2010 DOI 10.1163/157181209X12584562670938 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. This 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. This 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. The 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, The Colonial Legacy in South Asia, Boulder, CO: Westview Press, 1995 p. 57 ). Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 113 This 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 The 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 inﬂuence of their parents pupils would imperceptibly acquire the manners, habits and customs of civilized life. This 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 This 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 31st 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-Breeds7 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 20th 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. This school was later run by the Anglican Church, and controlled by the federal Department of Indian and Northern Aﬀairs.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 oﬀered 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 There 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 ﬁndings 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 These ﬁndings 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 This 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 The 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, The 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. There is evidence that has come to light of more sinister experiments such as ‘Project Paperclip’.23 This 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 The 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 This 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. The 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 Then 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 The 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. There were some landmark judgments such as Blackwater v. Plint39 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. The 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 aﬀairs 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. This 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. There 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 11th 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 This 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. This 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 The 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. The 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. The 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. This 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.” There is also speciﬁc mention about the safety of native communities and the need for the protection of their children against their removal for forcible integra- tion. Article 7 states: 124 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 (1) Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. (2) Indigenous peoples have the collective right to live in freedom, peace and security as dis- tinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group. There is further provision that stops any contingency in which the native inhabit- ants would ever again be coerced into abandoning their cultural heritage. Article 8 states: “Indigenous peoples and individuals must not to be subjected to forced assimilation.” The indigenous nations view these provisions as the legitimate basis for con- ducting an inquiry into the criminal acts that took place in the boarding schools. These could have been intentionally reckless or negligent, that caused manslaugh- ter or suﬀering that was aggravated by the deliberate concealment of facts to amount to a conspiracy. Those found to be guilty could be the main perpetrators or accessories to these crimes against humanity carried out on an ethnic minority. 2.2. Resources of the Tribunal The IHRTGC was set up on Salish First Nation territory by the elders from the Ahousat Coast and Interior Salish bands, Cree, Metis, Anishinabe and Mohawk Nations, including the Six Nations Confederacy of the Iroquois. It was convened under the land law jurisdictions of the Anishinabe, Cree and Metis Nations. Rev Annett, was elected the interim President of the tribunal with Hereditary Chief Kiapilano of the Squamish nation as the presiding judge. The other mem- bers of the tribunal are Chief Louis Daniels (Whispers Wind), Anishinabe Nation Chief Svnoyi Wohali (Night Eagle), Cherokee Nation Lillian Shirt, Clan Mother, Cree Nation Elder Ernie Sandy, Anishinabe (Ojibway) Nation Hereditary Chief Steve Sampson, Chemainus Nation Ambassador Chief Red Jacket of Turtle Island. This committee proclaimed its mandate as follows: To gather the proof that genocide of indigenous people occurred and is occurring across Canada. Under traditional law jurisdiction to establish a public, non-governmental, interna- tional Tribunal of Inquiry into the evidence of Genocide in Canadian Indian Residential Schools and hospitals. There is an open invitation to all survivors of these institutions, their oﬀspring and relatives, and to indigenous nations generally, to take part in this Tribunal and help direct its investigations, deliberations and outcome.46 46) The objectives were set out as an inquiry into the fate of more than “50,000 of our children and relatives who died in so-called “Indian Residential Schools” and hospitals run by the government of Canada and the Roman Catholic, Anglican, Presbyterian and United Church of Canada”. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 125 Its proceedings commenced in September 2007 at the same time as the Declaration was adopted at the General Assembly by convening on several tradi- tional indigenous territories across Canada, and it was coordinated by the main IHRTGC body of elders representing the founding nations. The ﬁrst criminal investigation was a commemoration of a residential school death that was con- ﬁrmed as homicide in 2005, leading to an as yet unsolved criminal investigation.47 In anticipation of this investigation the IHRTGC has commenced its activity by ﬁrst issuing Eviction Notices to those entities against whom it is seeking redress. This came by way of Chief Kiapilano, the presiding judge of the tribunal who led the process of seeking the removal of Churches implicated in the abuse from his tribal land as a sovereign act of his people. It was by serving notices of termination on the property of the Catholic, Anglican and United churches in the province of Vancouver, and demanding they comply with these Notices. They are set out in the form of ‘Public Declarations’ which preface with the statement that the First Nation government he represents is independent and has never entered into any Treaty arrangement with either British Columbia or the Canadian government.48 There is a warning attached to these notices that states that non-compliance will aﬃrm “our right of claim to serve the said churches with accounts for applicable criminal charges to the genocide for every individual of my nation who has died and for those who are alive con- tinue to experience torture and suﬀering on SNT as well for each individual who receives less than their promised settlement from the Federal and Provincial government”. 2.3. Tribunal Protocol In setting out its objectives the IHRTGC has declared that it will seek testimonies from all survivors of the boarding house institutions, their oﬀspring and relatives, and it invites indigenous nations to take part in this forum and help direct its inquiries. It will have no restricted time frame and it has the following brief: 1. To investigate every aspect of the Indian Residential School system and its associated “Indian hospitals”, including but not restricted to all written and archival documentation and records held by every agency of church, police and state in “Canada”; 2. To investigate every possible witness to the operation of these facilities, both native and non-native; 3. To examine all of the evidence regarding crimes committed in these facilities against the aboriginal children and others imprisoned therein, including but not restricted to murder, 47) Ceclia Joseph of the Ahousat Nation died in a Port Alberni slum ﬁre. 48) The Squamish Nation tribal council issued the Churches a Notice to Quit and gave the power of attorney to Rev Annett to enforce their evictions for trespassing on native land. 126 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 torture, sexual sterilizations, medical experimentation, slave labour, organized paedophilia and ethnic cleansing; 4. To publicly subpoena and summon oﬃcials of church, police and state in “Canada” to answer charges brought against them and their institutions; 5. To undertake physical and forensic examinations of all burial sites and other locations that may contain evidence of the deaths of children and others in these facilities, and to under- take the public repatriation of the remains of these children to their traditional homes according to the protocols of their people; 6. To compile all of the evidence thus gathered into a public, written report and a documen- tary ﬁlm that will be submitted to international and aboriginal courts of justice, and to the world media and public; 7. To undertake the identiﬁcation and arrest of those persons responsible for documented crimes in these facilities, including the deaths of children and others, and to bring these accused persons into aboriginal courts of justice for trial and sentencing; The IHRTGC will invite representatives from other countries, including Guatemala, who will conduct the ‘courts’ of justice as independent observers. These representatives will conduct themselves as the jury where those persons and institutions responsible for the death and suﬀering of residential schools will be confronted with the evidence. There is no existing precedent for this type of judi- cial process that comes with the appointment of quasi judges, appointed by the tribunal that is deemed as a public, non-governmental, international Tribunal of Inquiry into the evidence of Genocide in Canadian Indian Residential Schools and hospitals. However, in selecting Guatemala the tribunal has facilitated indigenous groups from the South American country who have petitioned the Canadian govern- ment in solidarity with the First Nations. There was a letter delivered in May 2004, by representatives of three major indigenous groups in Guatemala and handed to the Canadian Embassy in Guatemala City. It was presented as a formal protest letter or “denuncia”.49 It reminded the government of its responsibility as follows: We are deeply alarmed and concerned by the fact that crimes of Genocide are alleged to have been committed against the indigenous peoples of Canada by your government and by the Roman Catholic, Anglican, Presbyterian and United Church of Canada. According to eyewit- nesses and oﬃcial documentation, these crimes are alleged to include murder, torture, rape, involuntary sexual sterilization, forced labour, biological warfare, medical experimentation, land theft, cultural eradication, paedophilia, and the conducting of a prolonged war of exter- mination against non-Christian aboriginal people. 49) The extract above quotes two prominent Gautemalan organisations for the defence of indige- nous peoples, the Consejo de Esperanza of San Andres Itzapa, and the Consejo Asesor Indigena of San Andres Itzapa. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 127 It accused Canada and its mainline churches of committing and concealing acts of genocide against its native populations for more than a century, in the Indian Residential Schools and hospitals, and called for the Canadian govern- ment to accept an international investigation into these allegations by itself and its churches. Their letter to the Canadian government stated that it must cooper- ate with any indigenous investigation in the crimes against humanity that were divulged by its inquiries. 2.4. Unearthing the Evidence The IHRTGC is aware that the evidence it provides would need to satisfy a rea- sonable standard of proof that will entitle criminal investigations to be launched against the Canadian oﬃcials. It plans to back up its charges by evidence of mass graves comprising bones of dead Indian children; ﬁrsthand evidence of accounts from local residents; disclosure of material from the Department of Indian Aﬀairs; RG 10 microﬁlm series on Indian Residential Schools in the library at the University of BC; and survey data and physical evidence obtained from grave sites in Port Alberni, Mission, and other locations. It relayed the ﬁrst discovery of evidence on 10 April 2008 with the announce- ment that mass graves of residential school children had been uncovered in Canada. This caused it to hold a press conference along with the Friends and Relatives of the Disappeared (FRD), the Truth Commission into Genocide, and a confederation of indigenous elders across Canada. The assembly released the list of twenty eight mass graves holding the remains of untold numbers of aboriginal children who had died in Indian Residential Schools a century ago. The IHRTGC backed up this prima facie evidence of graveyards by setting out the locations in all the major provinces of Canada and implicated the various denominations of the Churches. In Port Alberni, British Columbia at the Presbyterian-United Church school (1895-1973) the graves were deﬁned as a series of sinkhole rows in hills 100 metres due west of the NTC building, in thick foliage, situated past an unused water pipeline. At the Tseshaht reserve cemetery in a wooded gully east, and in Alert Bay where the St. Michael’s Anglican school (1878-1975) was situated. there is “evidence of skeletons between the walls”. On Kuper Island at a former Catholic school there are ﬁelds containing a conventional cemetery. At the Nanaimo Indian Hospital which was an Indian Aﬀairs and United Church experimental facility (1942-1970) on Department of National Defense land, the graveyards have been discovered immediately east of former buildings on Fifth Avenue, adjacent to and south of Malaspina College. There have been unearthed graves- ites in the Mission: St. Mary’s Catholic school (1861-1984), adjacent to and north of Lougheed Highway and Fraser River Heritage Park, at a location 128 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 where the original school buildings were destroyed, but many foundations are on Park grounds. In their submissions of ﬁnding evidence in North Vancouver at the Squamish (1898-1959) and Sechelt (1912-1975) reservations, the old buildings of Catholic schools reveal graveyards of children who are interred in the Squamish Band Cemetery. There is proof in Sardis at a Methodist-United Church School (1889-1940), where there was an experimental hospital run by federal government (1940-1969), and a Native burial site has been located next to Stolo Reserve and Little Mountain School, also possibly adjacent to a former school-hospital building. There has been a discovery in Edmonton of the United Church School (1919-1960) graves reportedly south of the former site, under thick hedges that runs north-south, adjacent to a memorial marker. In order to prove their authen- ticity, the tribunal introduced a former inmate to provide an eyewitness account. This was given by a former pupil, Sylvester Greene, who described how as a young Inuit boy at this UC school in 1953 he had helped to bury a young pupil.50 There has also been evidence presented of gravesites near the Portage La Prairie on the site of the Presbyterian-United Church School (1895-1950), at Norway House, a Methodist-United Church school (1900-1974). There a “very old” gravesite has been discovered next to a former school building demolished by UC in 2004. The graveyards discovered in Ontario are at Thunder Bay, where the Lakehead Psychiatric Hospital is still in operation and the experimental centre has women and children reportedly buried adjacent to hospital grounds. At the Pelican Lake Catholic school (1911-1973) there are burials of children in mounds near to the school. The formerly Spanish Catholic school (1883-1965) has depos- its of numerous graves. In Brantford at the site of the notorious Mohawk Institute, run by an Anglican church (1850-1969), there are a series of graves in orchards that lay behind school buildings, and these have interred bones under rows of trees. At a location in Montreal in Quebec, there was proof found in the Allan Memorial Institute, McGill University. This has been in operation since 1940 as the MKULTRA experimental centre and mass graves of children have been revealed in the north of the building, on the southern slopes of Mount Royal behind the stone wall.51 50) He gave his testimony as follows: “We were told never to tell anyone by Jim Ludford, the Principal, who got me and three other boys to bury him. But a lot more kids got buried all the time in that big grave next to the school.” 51) It houses the Psychiatry Department of the Royal Victoria Hospital. Although currently a respected psychiatric hospital, is notorious for its role in the CIA’s Project MKULTRA, the Agency’s initiative to develop “mind control” techniques which were implemented at the Allan by its then Director, Dr D. E. Cameron from 1957 to 1964. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 129 2.5. Search for a Legal Precedent After compiling this evidence in a watertight manner, the IHRTGC will seek the reference of the UN Security Council to set up an international tribunal that has the authority to try them as crimes against humanity. The indictment against the Canadian oﬃcials is likely to be breaches of the Convention for the Prevention and Punishment Against Genocide of 1948.52 The Canadian govern- ment ratiﬁed it on 12 January 1951, and should therefore be bound by its clauses. As the Canadian government has also ratiﬁed the Rome Statute that came into force in 2002, a referral to the International Criminal Court may be a pos- sibility. However, it is not the appropriate Court because under Article 24 criminal indictments cannot be brought on a retrospective basis. It states that “No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute”. This precludes trial in the ICC for the Canadian hierarchy where its oﬃcials might have been arraigned for their alleged crimes. This narrows down the options and the IHRTGC will have to refer their ﬁnd- ings to the UN for an international tribunal to be set up on the lines of those for Yugoslavia, Rwanda and Sierra Leone53. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 is commonly referred to as the International Criminal Tribunal for the for- mer Yugoslavia or ICTY. In its search for precedence the IHRTGC would be assisted by the ﬁndings in 2004 by the ICTY which published a list of successes that it claimed it had accomplished. These included “lengthy ﬁndings of fact the Tribunal judgments had produced; bringing justice to thousands of victims and giving them a voice”, pointing out the large number of witnesses that had been brought before the 52) Article 2 of this convention deﬁnes genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing mem- bers of the group; causing serious bodily or mental harm to members of the group; deliberately inﬂicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transfer- ring children of the group to another group”. 53) It was originally proposed and established by Resolution 827 of the UN Security Council and passed on 25 May 1993. The Tribunal was established on the basis of Chapter VII of the UN Charter; the relevant portion of the Charter reads “the Security Council can take measures to main- tain or restore international peace and security”. It has jurisdiction over four clusters of crime com- mitted on the territory of the former Yugoslavia since 1991: grave breaches of the 1949 Geneva Conventions, violations of the law or customs of war, genocide and crimes against humanity. It can try only individuals, not organizations or governments. The maximum sentence it can impose is life imprisonment. 130 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 Tribunal; the accomplishments in international law, describing the ﬂeshing out of several international criminal law concepts which had not been ruled on since the Nuremberg Trials.54 In bringing these charges the IHTGC would not be constrained by the time that has elapsed in the commission of the crimes of Canadian oﬃcials. This is because there is no Statute of Limitation in international trials that concern crimes against humanity. Under the International Covenant on Civil and Political Rights 1996 Article 15 states prosecution of crimes against humanity committed before it entered into force, is legally possible because such crimes had already been included under general international law.55 3. Ongoing Appropriation of Native Children The IHRTGC has stated that it will also conduct investigations into contempo- rary abuses of indigenous children. This it is compelled to do because of the high incidence of their removal in Canada from the care of their natural parents and the specious reasons advanced for their guardianship by non native agencies. There is also a high incidence of children from native backgrounds who are being targeted for adoption by non Indian parents. These facts were illustrated by a recent CTV documentary that showed 76,000 children in welfare care, of which over 22,000 were actively waiting for adoption.56 There were many whose parents were victims of poverty. In the TV report their rise was shown to be reﬂected in their removal on grounds of social welfare. However, Cindy Blackstone of the First Nations Child and Family Caring Society of Canada was quoted as stating: “We actually have three times the number of First Nations children in child welfare care today than we did at the height of the residential schools”. Then in another study conducted in March 1999 entitled “Our Way Home”, author Janet Budgell notes that in 1981in the Kenora region, “a staggering 85 per cent of the children in care were First Nations children, although First Nations people made up only 25 per cent of the population.57 The number of First Nations 54) Its other successes were deﬁned as spearheading the shift from impunity to accountability; establishing the facts; and highlighting the extensive evidence-gathering. http//www.un.org/icty/ publications/index.htm. 55) Article 15 invokes the principle of nullum crimen sine lege”national or international” adds that “[n]othing in this article shall prejudice the trial and punishment of any person for any act or omis- sion which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”. 56) Keeping the Promise: the Convention on the Rights of the Child and the Lived Experiences of First Nations Children and Youth, 2006. 57) A Report to the Aboriginal Healing and Wellness Strategy on the Repatriation of Aboriginal People Removed by the Child Welfare System. Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 131 children adopted by non-First Nations parents increased ﬁvefold from the early 1960s to the late 1970s. Non-First Nations families accounted for 78 per cent of the adoptions of First Nations children.” The director of Native Child and Family Services of Toronto Ken Richard and the man who commissioned the “Our Way Home” documentary reﬂected as follows:58 British colonialism has a certain process and formula, and it’s been applied around the world with diﬀerent populations, often indigenous populations, in diﬀerent countries that they choose to colonize. And that is to make people into good little Englishmen. Because the best ally you have is someone just like you. One of the ones you hear most about is obviously the residential schools, and residential schools have gotten considerable media attention over the past decade or so. And so it should, because it had a dramatic impact that we’re still feeling today. But child welfare to a large extent picked up where residential schools left oﬀ. This lesser-known story is the child welfare story and its assimilationist program. And you have to remember that none of this was written down as policy: ‘We’ll assimilate aboriginal kids openly through the residential schools. And after we close the residential schools we’ll quietly pick it up with child welfare.’ It was never written down. But it was an organic process, part of the colonial process in general. There are details that are surfacing of thousands of children being removed from their native parents during what is known as the ‘scoop’ era of the 1960s and 1970s as deﬁned by Patrick Johnston.59 However, the task is not made easier because adoption records from the 1960s and 1970s rarely indicated aboriginal status (as they are now required to). The aboriginal family has been undermined and it has caused friction leading to dysfunctional processes. However, the cause and eﬀect of this is the attitude of the government who the native experts allege has not sympathised but facilitated the wholesale removal of this new generation of children for adoption. It has not been met with an acknowledgment or an apology as was the case for past wrongs.60 The First Nations activists are acutely aware of the poverty their people face in the larger white society and the failure of the system to eradicate the prejudices that allowed the residential school system to take shape. They state that the notion of ‘unﬁt parents’, can arise from their poverty and used as an excuse to force chil- dren away from their biological kin to transport them as was the case before the 58) First Peoples Child and Family Review, Vol No 1, September 2004. 59) Patrick Johnston, Native Children and the Child Welfare System, Lorimar Publishing, 1983. 60) The Aboriginal people have deﬁned family violence “as a consequence to colonization, forced assimilation, and cultural genocide; the learned negative, cumulative, multi-generational actions, values, beliefs, attitudes and behavioral patterns practiced by one or more people that weaken or destroy the harmony and well-being of an Aboriginal individual, family, extended family, commu- nity or nationhood”. The Aboriginal Family Healing Joint Steering Committee, For Generations To Come: The Time is Now: A Strategy for Aboriginal Family Healing (Sylvia Maracle, Barbara Craig, co-chairs (Ontario: the Committee, 1993) p. 10. 132 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 Child Welfare Act 1978 came into force in the US. That is still evident in the form of transfer loopholes provided by the loopholes of the ‘Baby Moses’ law that operates in some states across the southern border.61 The revelations of the resi- dential school abuses have not had the eﬀect of ceasing the ongoing abuse of appropriating the children of native parents under other pretexts than civilising them even if the thrust is not the same. 4. Monetary Consequences of a Guilty verdict The damages done to native families require a compensation formula to be devised in the event that the crimes are proven at the stage of an International Tribunal in the UN. These must take into consideration the international law standards to ﬁx a quantum of such damages where a crime occurred many years ago. Although, many of the international treaty obligations were not operative during the his- torical period under examination, nonetheless a criteria or standard exists by which to measure the compensation that needs to be payable to make reparations for the loss of generations of Indian children. Moreover, the international legal standards arguably provide an appropriate formula for the awarding of repara- tions in the case of the stolen generations. In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities commissioned Professor Theo van Boven to under- take a study concerning the right to compensation, redress and rehabilitation for victims of gross violations of human rights and fundamental freedoms. A ﬁnal report, including proposed basic principles and guidelines, was submitted in 1993, and a revised set of basic recommendations were then submitted in 1996.62 The Van Boven Report examined relevant existing international human rights norms and decisions of international courts to arrive to a formula for awarding damages. Its terms of reference, included the principle that every state has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms. This has to take account of the redress, rehabilitation and compensation to vic- tims for the massive injuries sustained, including psychological damage. It synthesised the contents of reparations to an equation between restitution, compensation, rehabilitation and satisfaction and guarantees of non repetition. Restitution refers to measures such as restoration of liberty, family life, citizenship, 61) This law came into eﬀect in 1999 and is in eﬀect in a number of states family law for ex Texas Family Code 262 has enacted it. The provision allows the dumping of babies by their mothers if they are under 60 days old and healthy. 62) T. van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law (pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996). Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 133 return to one’s place of residence and return of property. It would seek to re- establish the situation that existed prior to the crimes taking place. Compensation would refer to monetary awards for any economically assessable damage resulting from violations of human rights and humanitarian law. Rehabilitation includes medical and psychological care as well as legal and social services, and non repetition includes, inter alia, an apology (including public acknowledgment of the facts and acceptance of responsibility), and measures to prevent recurrences of the violations. The report mentioned that in accordance with international law, states have the duty to adopt special measures, where to permit expeditious and fully eﬀec- tive reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.63 Van Boven mentioned further: In the context of the removal of indigenous children from their families in the US and Australia, the basis of an obligation to provide reparations must come from some general and underlying principle and not from international human rights treaty law. This is because for nearly or most of the period that removal was practiced in any signiﬁcant way, neither country was a signatory to the major relevant international human rights instru- ments such as the International Covenant of Civil and Political Rights or Convention on the Elimination of All Forms of Racial Discrimination. It may be possible to argue that during the relevant period, international customary law prohibited the removal of children from family based on racial identity, denial of family contact and cultural heritage and physical and sexual abuse. Alternatively, they were still recognised as human rights by the international community. Regardless of any legal duty to provide reparations to those Aborigines removed as children from their families, there is a moral duty. It is diﬃcult not to refer to morality when discussing the issue of reparations for wrongdoings – for example, human rights law is arguably a legal recognition of moral rights and wrongs. Further the US and Australia are democracies gov- erned by the rule of law and values of justice, morality and civility. Australian academic, Damian Grace writes that‘[c]ivility begins with good manners and treating others – even strangers and opponents – with respect.’ Surely respect for Aborigines, by the governments of the US and Australia, demands acceptance of the wrongs that were inﬂicted on many in this cohort and provision for reparations - reparations to acknowledge the wrongs and reparation to help the healing and rehabilitation process. 5. Conclusion The Canadian government has to face the ﬁrst real challenge to have emerged as far as the charge of genocide is concerned from Aboriginal people. It may be 63) Ibid., p. 105. 134 Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 indicted for the crimes of its personnel before a UN Tribunal specially constituted to try the oﬃcials for residential abuses which were systemically carried out under its auspices. This will lift the near immunity that Canadian politicians have enjoyed from prosecution in international forums. However, the silence of the international community on this issue has so far been deafening. At issue is the policy of assimilation and forced integration that has disinher- ited native people of the lost generations of children. By the passage of the Declaration of the Rights of the Indigenous People there is a moral imperative for the Canadian government to concede to the indigenous people and accept the ﬁndings of the IHRTGC. The Truth and Reconciliation Commission does not have the power to conduct inquiries, much less to establish culpability of the people behind the crimes. The indigenous people are aware that they have an unequal relationship that does not allow for the recognition of the indigenous right sovereignty. Their right to self-government is set out in the Constitution Act of 1982, that mentions the RPA of the 18th century to invoke the original source of rights along with the treaties signed in the colonial era, and since Canada came into as a successor state to the empire.64 It recognises the First Nations as a minority, but does not actually set out any speciﬁc guarantees of their self determination in the future and the Canadian government has not yet incorporated the Indigenous Declaration of Rights at the UN.65 However, the issue of land claims that the Indians may make in the future against the Crown title will determine their status within the Canadian state. The eﬀect of the Indian Bill of Rights as the 1982 Act has been called is to entrench an overriding power of guardianship to the Canadian government over the First Nations. It was this inheritance that caused the residential school system to manipulate the indigenous community and erase its cultural roots. It became a crime against humanity by the industrial scale of its implementation when the families were torn apart and those taken on the basis of trust were then abused inside the compounds. There was evidence of the negligence of the children by the oﬃcials who were delegated the responsibility to care for them. It was veriﬁed by medical experts and had the medical reports been divulged, they would have revealed that hei- nous deeds were being practiced. The evidence suggests that this did not abate 64) Section 25 oﬀers protection of certain rights and freedoms so as not to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. Section 35 provides constitutional protection to their treaty rights and this includes rights that now exist by way of land claims agreements or may be so acquired. 65) The Minister of Indian Aﬀairs Chuck Strahl described the declaration as “unworkable in a west- ern democracy under a constitutional document. His objection is the Article 19 that requires the “free, prior and informed consent” from the native peoples before any policy eﬀecting them is made. (Native Rights Traditions inconsistent with Legal Tradition; National Post 13/9/07.) Z. Akhtar / International Criminal Law Review 10 (2010) 111–135 135 despite knowledge of its commission, and that medical experiments that were conducted were not only illegal, but had the approval of the authorities. This IHRTGC is a grassroots attempt to investigate those responsible and to commit them for trial by the UN, so that those who have been so severely decimated by the vandalism of their human resources can at last be vindicated. 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