Introduction
“Residential schools” is a terrible euphemism. This term obscures and cleanses the truth about these terrible places and the shocking program of political and cultural destruction of which they were a central pillar. The places to which we were taken were places of involuntary childhood internal exile and, frequently, systematic maltreatment. Their larger purpose was not to house or educate us, but rather to separate whole generations of indigenous children from their parents and communities and traditional lands and resources. The chilling overall policy idea was to ultimately eliminate our peoples by assimilating the indigenous children while allowing time for parents, grandparents and nations to die off alone in their traditional lands, thus clearing the country for settlement, agriculture and resource extraction by the Crown.
–Grand Chief Matthew Coon ComeFootnote 2
Indigenous survivors of Canada’s Indian Residential School (IRS) system have long argued that its violence must be understood as a form of genocide (whether cultural annihilation, ethnic cleansing, or forced assimilation).Footnote 3 This attempt at genocide—the targeting of 150,000 Indigenous children, their families, communities, and nations—was legally and systematically sustained by Canada and generations of its citizens for well over one hundred years. As such, this violence was instrumental to Canada’s colonial nation-building project and to Canada’s claim to sovereignty, dominance, and control over Indigenous people and their land.
IRS litigationFootnote 4 is primarily a story about the effort of IRS survivors to have Canada and its justice system acknowledge that cultural genocide (connected to land) was a goal and partial outcome of the IRS system. Thus, IRS claimants sought to name “loss of culture” as an actionable tort. IRS litigation is also a story about the Government of Canada’s effort to deny legal recognition of loss of culture. Citing statutes of limitations, the Canadian government and its law allowed only “historical sexual assault,” negligence, and breach of fiduciary duty as legally recognized harms. Historic sexual assault does not mean sexual assault within the context of colonialism. Rather, it means abuse perpetrated by individuals so long ago that memories fade, evidence disappears, witnesses are few, and “many of the perpetrators are dead.”Footnote 5 Declaring the connection between historic sexual abuse and cultural loss as “strained at best,”Footnote 6 courts sever sexual abuse from collective crimes such as genocide, and sever both sexual abuse and genocide from issues of land. In IRS class actions, most notably Cloud v Canada, this legal framing proved useful to Canada and its law in denying a common cause and a common class.Footnote 7Cloud claimants eventually omitted reference to sexual abuse altogether, in order to emphasize “systemic negligence,” resulting in loss of culture and language, as the wrongdoing.Footnote 8 Although Cloud was certified in 2004, Goudge J cautioned that the “new tort” would likely fail. Importantly, Cloud’s certification rendered the certification of Baxter v Canada probable. Representing more than 80,000 IRS survivors, the Baxter claim explicitly cited the United Nations’ convention against genocide.Footnote 9 Cultural loss as an actionable tort was never tested, as the five–billion–dollar Indian Residential Schools Settlement Agreement (IRSSA) of 2006–2007 brought both Baxter and Cloud to a close.
Many legal scholars critique Canadian IRS case law and the exclusion of loss of culture as an actionable tort.Footnote 10 Some argue that although Canadian law is inadequate for defining and addressing the injustices of the IRS system, existing torts could be tailored to approximate the harm of loss of culture. Zoe Oxaal creatively suggests that mental torture and unjust incarceration could serve this purpose. Bruce Feldthusen argues that with the necessary political will, Canada could easily amend law to include loss of culture as an actionable tort. Kathleen Mahoney suggests that Canada’s law is not the appropriate instrument to address the “mass violation of human rights.” The chief negotiator for the Assembly of First Nations regarding the IRSSA, Mahoney claims that, unlike Canadian civil and criminal law, the IRSSA successfully reflects Indigenous values and principles of restorative justice that are “victim centered, inclusive, generous, holistic and culturally sensitive.”Footnote 11 Whether Canadian law is, or might be rendered, an appropriate mechanism for addressing past colonial injustices—the very injustices it legally authorizedFootnote 12—is not the direct focus of my paper. Rather, I examine IRS case law for evidence of how colonial power continues to operate through law in the present. Informed by anti-colonial analyses of the connection between Canadian law, sovereignty, and settler violence, I show how Canada’s defence strategy and the judicial reasoning in IRS case law may be related to Canada’s ongoing claim to sovereignty, dominance, and control over Indigenous peoples’ lands and resources. In Part I of this paper, I suggest that IRS litigation, and the emphasis on cultural loss or genocide, threatened to expose the illegitimacy of settler sovereignty and the settler collective’s occupancy of Indigenous lands today. In Part II, I trace Canada’s response to this threat in Blackwater v Plint. I contend that the law’s emphasis on “historic sexual abuse” as the only actionable tort—at a time when there was no possibility of cultural loss becoming a legally recognized harm—allowed Canada to simultaneously acknowledge the fact of colonization and genocide, evade responsibility for both colonization and genocide, and reassert settler sovereignty through the dehumanization of the Indigenous survivors and their communities. I suggest that Canada’s “disturbing defence strategy” in Blackwater had implications for Baxter and may partially explain why Canada agreed to the 2006–2007 IRSSA. If this is the case, then Mahoney’s claim that the IRSSA, “[b]y comparison with other countries and what they have awarded for similar abuses, [. . .] is on the higher end of generous and that [this] is something we can be proud of,”Footnote 13 warrants scrutiny. I conclude the paper with the suggestion that settler illegitimacy, genocide, and law’s racialized violence of the present, ought to trouble the settler collective’s vision of both decolonization and the role of settler law in decolonization.
PART I: The Violence of Settler Illegitimacy
Even if Canada had not attempted genocide against Indigenous people through mechanisms such as the IRS system, Canada’s claim to sovereignty over Indigenous lands and nations would still be illegitimate, because it rests on many other forms of violence. One such form of violence is that of the mere assertion of dominance over the many Indigenous nations that have occupied land since before European arrival/invasion. Canadian courts acknowledge this ethically fragile foundation of Canadian sovereignty. For example, in Haida Nation v Canada,Footnote 14 a 2004 Supreme Court of Canada decision aimed at producing a “general framework” regarding Canada’s duty to consult and accommodate Indigenous nations before rights claims are heard regarding land and resources,Footnote 15 SCC Chief Justice Beverley McLachlin relies on the concept of the “honour of the Crown” and states,
In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”Footnote 16
And later: “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.”Footnote 17 As John Borrows and others argue,Footnote 18 the violence of the assertion of sovereignty is intimately tied to the violence of an expanding settler occupation, the mere fact of which tarnishes (renders coercive) the context in which treaties were and are made. In judicial reasons directly related to land, law operates as steward of settler sovereignty, insofar as it obscures the unjust origin and conditions of settler sovereignty. Settler illegitimacy is more difficult to conceal when tethered to the unquestionably dishonourable behaviour of attempted genocide. Relatedly, the dishonourable behaviour of the IRS system may directly impact current litigation regarding land and resources. Canadian law often requires Indigenous collectives to establish their pre-contact and ongoing association with land and their culturally distinct use of resources.Footnote 19 Is this a just requirement, given that Canada (government backed by law) sought to obliterate both through the IRS system? The emphasis on cultural loss in IRS litigation thereby threatens to reveal not only past human rights violations, but the ongoing illegitimacy of settler sovereignty and occupation. In settler colonial contexts, the settler collective typically responds with violence when its illegitimacy is rendered visible.Footnote 20 I argue that, in IRS case law, this violence consists of the relentless dehumanization of the Indigenous collective as property. I contend that the settler collective reasserts sovereignty through this dehumanization of the Indigenous collective, and that law operates as steward of settler sovereignty even in IRS litigation.
Asserting Sovereignty through Processes of Dehumanization
Frantz Fanon argues that settler colonialism is a race identity project that “parcels out the world” and “begin[s] with the fact of belonging or not belonging to [not only a given space, but] a given race, a given species.”Footnote 21 European colonizers justified the mere assertion of sovereignty over Indigenous people on the grounds that the latter did not relate to land as private property. The European concept of property, rooted in the influential ideology of possessive individualism, generated an entire racial ontology. As C. B. Macpherson argues, relating to land as private property was said to be evidence of the individual’s ability to use the rational mind to control the body (and its animal desires).Footnote 22 This internal relationship, wherein the rational mind controls the body, was conceptualized as ownership and possession of the body. Those individuals—entire collectives of individuals—thought to lack this capacity for self-possession, were deemed less than fully human and in need of a rational mind (or minds) to control, possess, and improve their bodies for them. Those incapable of controlling body (and thereby land) as property were excluded from full legal and political personhood and its rights and responsibilities. If, as Macpherson argues, the origin and justification of modern law was to protect the private property of individuals rational enough to accumulate wealth within full market capitalism, then European law is deeply implicated in the eviction of many from full humanity. Fanon argues that, within settler colonialism, belonging to a given space, race, or species is asserted (or denied) through the settler’s marking of the Black or native body as less than human, as object, as property.Footnote 23 Since property is both an internal and an external relationship, the violent processes of eviction and of dehumanization are integral to the construction of settler identity and subjectivity, at the level of the collective psyche or consciousness, at the level of the body, and at the level of the wider “spatial and temporal world.”Footnote 24
The settler’s dehumanization of the Indigenous collective as property—as incapable of rational control of body and land—surfaces blatantly throughout IRS case law. Indigenous survivors (of attempted genocide) are portrayed as perpetual children or as angry, vengeful, and irrational adults. They are portrayed as incapable of controlling their addictions and sexual urges and as inclined toward sexual violence. They are said to inherit low intelligence and to be biologically and culturally damaged collectives, both prior to and after their IRS experience. What does this violence of dehumanization do in IRS case law? Portrayed as incapable of sovereignty, self-determination, and economic self-sufficiency, this dehumanization is likely experienced by Indigenous survivors as a familiar, yet new, assault on their individual and collective being. In turn, it likely enables settlers to experience themselves as rational and in control, and thereby as racially superior and morally entitled to stay. As Mark Rifkin states, law is central to how “. . . settler states’ regulate not only proper kinds of embodiment . . . but also legitimate modes of collectivity and occupancy.”Footnote 25 I now trace the racial ontology of property and its violence in Blackwater v Plint.Footnote 26
PART II: Blackwater v Plint and the “Cost of Doing Business”
The civil case Blackwater v Plint (1996–2005) concerns Alberni Indian Residential School (AIRS) in Port Alberni, British Columbia. This civil case was preceded by the criminal sentencing of Arthur Henry Plint, a dormitory supervisor at AIRS during the 1950s and 1960s.Footnote 27 Plint confessed to sixteen counts of indecent assault against male Indigenous children. In his decision, Hogarth J states that he fully believes the Indigenous survivors who testified that they experienced violence at the hands of many AIRS employees, not only Plint. He states, “. . . [T]here was a lot of violence used in the school, and whether it was done by the accused or anybody else is a good question . . .”Footnote 28 Hogarth J also acknowledges that AIRS was backed by Canadian legislation (the Indian Act), and that “. . . the Indian Residential School System was nothing but a form of institutionalized pedophilia . . .”.Footnote 29 His decision contrasts sharply with the judicial reasoning in Blackwater. In 1996, following the criminal case and the sentencing of Plint to twelve years in prison, twenty-seven plaintiffs pursued a civil case against Canada and the United Church as well as other employees of AIRS, who the plaintiffs alleged committed sexual and physical abuse against them. The civil case had three phases and was heard by BCC Justice Donald Brenner.
Phase One: The Settler Collective as Vicariously Responsible
Justice Brenner’s 1998 phase-one decision is considered a landmark decision in that it holds both Canada and the United Church vicariously responsible for the sexual assaults committed by Plint.Footnote 30 I consider Brenner J’s phase-one decision important because it brings the racial ontology of property into view. The very notion of “vicarious responsibility” as “no fault” responsibility is historically rooted in the racialized, economic, master/slave relation, whereby a master was held economically responsible for any damage that a runaway slave caused to another master’s property.Footnote 31 This law was later extended to the economic relation between employer and employee. Brenner J explicitly states that Canada and the Church were in a business relationship: they were partners in the “great enterprise of the schools” and had a “partnership in nation-building.”Footnote 32 The Church’s business was that of schooling children in religion. Canada’s business was that of fulfilling its statutory obligations under the Indian Act. Footnote 33 Moreover, Canada was the senior business partner, for the Indian Act legislation gave Canada “control over virtually every aspect of the lives of Indians.”Footnote 34 Brenner J frequently reminds the Court that vicarious responsibility involves no dishonourable behaviour on the part of Canada (only its employees).Footnote 35 Rather, “the fact that wrongful acts may occur is a cost of business.”Footnote 36 Thus, Brenner J’s reasons indirectly acknowledge the link between sexual abuse (wrongful acts) and nation building (Canada’s business), and they erect a racializing economic framework for IRS case law (as all tort law) to which relations of property (and land) are integral. This framing allows for both the acknowledgement of the IRS system as a colonizing mechanism and the denial of responsibility for the dishonourable behaviour associated with it.
Phase Two: Racializing the Indigenous Collective as Property/Object
With Brenner’s encouragement, all but seven of the twenty-seven plaintiffs settle out of court between the first and second phases of Blackwater.Footnote 37 In phase two, Brenner J must decide the issue of direct liability on the part of Canada and/or the Church: Did they know, or ought they to have known, about the sexual abuse committed by Plint? Were they negligent in failing to prevent or investigate abuse? Was Canada’s duty non-delegable to the Church? Did Canada breach a fiduciary duty? Brenner J finds that Canada is directly liable in one sense: by virtue of being the “senior business partner” and bound by the Indian Act, Canada had a non-delegable statutory duty to ensure the safety and welfare of the students at the school. This finding of direct liability is overturned in 2005 by SCC CJ McLachlin.Footnote 38 Thus, by the end of Blackwater in 2005, Canada and the Church remain only vicariously “no fault” responsible for the violence committed by Plint.
Brenner must also decide whether it is probable that AIRS employees other than Plint committed sexual and physical abuse against the plaintiffs. MJ, the only female among the remaining seven plaintiffs, alleges that she was repeatedly raped by Principal Caldwell and assaulted by a dormitory supervisor, Mr. Peake.Footnote 39 She also claims to have suffered a broken nose from being pushed down a stairway and to have been slapped and locked in a dark room by a matron.Footnote 40 Although MJ does not make any allegation against Plint, the violence she experienced occurred during the time that Plint was employed at AIRS. Other plaintiffs claim that Principal Andrews physically abused them, that they were beaten by Mr. Humchitt, or that Mr. Hindmarsh (a temporary dormitory supervisor) fondled them.Footnote 41 All the plaintiffs tell of being subjected to “the gauntlet,” a method of punishing “troublemakers” that was organized by teachers or principals. Indigenous children were forced to form two lines. The child to be punished was forced to run between these lines, sometimes naked. The children in the lines, and often the teachers themselves, were required to verbally ridicule as well as physically assault the child as he or she ran through the lines.
Although a civil case requires Brenner to weigh the evidence with merely the “balance of probabilities” in mind, Brenner is compelled to avoid tarnishing the reputation of those wrongfully accused of sexual and physical assault. As none of the accused admits guilt, and as some are no longer alive to answer to the serious allegations against them, Brenner subjects these allegations to great scrutiny.Footnote 42 Moreover, while Canada and the Church do not challenge any of the claims related to Plint (because Plint confessed to so many other similar crimes), they do challenge the claims of direct liability: negligence, breach of non-delegable duty of care, and breach of fiduciary duty. Ultimately, Brenner decides that none of the other alleged perpetrators likely violated the Indigenous plaintiffs. With the exception of Canada’s non-delegable duty, Brenner concludes that Canada and the United Church could not reasonably have known about the abuse of children at AIRS.
Given that the Court is dealing with historical sexual abuse and all the problems inherent in proving it, Brenner J’s decision rests entirely on his assessment of the credibility of the plaintiffs’ and the Crown’s witnesses. Remnants of possessive individualism are traceable in his reasoning. He decides that although the plaintiffs’ memories are credible with regard to the violence they experienced at the hands of Plint (after all, these memories are confirmed by Plint’s confession in the criminal trial), the plaintiffs’ memories are not credible with regard to the violence they allege to have experienced at the hands of other employees of AIRS and of the Port Alberni community. Brenner declares that the plaintiffs are simply mistaken that they told teachers, nurses, and RCMP officers about the abuse. The adult Indigenous plaintiffs are constructed as perpetual children whose memories are flawed and subject to “recall bias.” The consignment of Indigenous adults to the category of child, with presumed underdeveloped intellect and lack of bodily control, is a common settler discursive strategy used to justify the domestication of Indigenous nations.Footnote 43
Relatedly, if the plaintiffs have substance abuse issues, behaviour or anger problems, or complain of being in pain—that is, if they have diminished control over their bodies in these ways—they are deemed thoroughly lacking in credibility. As Brenner J harshly states with regard to the testimony of MJ:
Perhaps the clearest example of Ms. MJ’s lack of credibility and her dogged determination to associate every negative event in her life with her experiences at AIRS is Ms. MJ’s insistence that [only her experience at AIRS affected her ability to earn an income later in life].Footnote 44
Brenner J is so irritated by MJ’s tendency to explain her inconsistencies in memory or her life choices by claiming that she “was in pain” that he mocks her on two occasions.Footnote 45 Clearly, the trauma and pain in survivors’ lives can be acknowledged only if it undermines their position.Footnote 46 Brenner ultimately dismisses MJ’s claim in its entirety.Footnote 47 The plaintiffs as a collective are thereby excluded from the category of fully rational humans and are deemed incapable of asserting that their bodily integrity was unjustly violated. In contrast, the teachers, nurses, and police who testify against the plaintiffs—and even those who are long dead but presumably were respectable by virtue of their employment as teachers, nurses, or police—are constructed as rational adults and caring pseudo-parents. Brenner simply declares that they would have done something about the abuse had they known about it. As they did nothing about the abuse, it follows that they did not know about it. Consequently, Brenner does not find it reasonable to believe that a child-like Indigenous collective has reliable memories of sexual violation.
Historic sexual assault claims are claims that individuals know what happened to them, and more specifically, what happened to their bodies, in the past. Insofar as adult Indigenous survivors are denied the experiential knowledge they claim for their own bodies, they are excluded from the category of rational individuals who own their own body as property. They are dehumanized in this process. IRS historic sexual assault claims are also, clearly, collective claims: an Indigenous collective claims to know that a settler collective violated Indigenous bodies sexually (among other ways) as part of a wider strategy of genocide and the usurpation of land (the latter explicitly acknowledged by the Court in phase one). The Court responds to this collective claim by reducing the Indigenous collective to a “mass of neediness” in need of improvement.Footnote 48 The Court emphasizes the aftermath of attempted genocide without ever assigning responsibility for the destruction to the collective perpetrator that carried it out. The subject position of possessive individuals, those who are rationally in control of their own bodies, is denied to Indigenous survivors collectively through law. This eviction occurs through the very reasoning of Justice Brenner and mirrors the historical and contemporary exclusion of Indigenous people from owning private property in land under the Indian Act. The two evictions—symbolic and material—fit hand in glove. The settler “establishes” that the collective memory of Indigenous people is not credible with regard to what was done to their own individual bodies. The settler presumes that the collective memory of Indigenous people is even less reliable with regard to experiences (such as the signing of treaties or land and resource agreements) passed down to them through generations. This is one way in which colonial power—a reassertion of sovereignty and dominance in relation to Indigenous people and land—operates in the judicial reasoning here. Acknowledgement of the colonial context of the IRS system, made possible by the legal framing of this system as an “economic enterprise” and the law’s emphasis on “historic sexual abuse” as the only actionable tort, allows the defendant Canada to simultaneously acknowledge the fact of colonization and genocide, evade responsibility for both colonization and genocide, and reassert settler sovereignty through the dehumanization of the Indigenous survivors and their communities. An even more explicit dehumanization of the Indigenous collective occurs in the third phase, which assesses “damages to property or person.”
Phase Three: Canada’s “Disturbing” Defence Strategy
In the third phase of Blackwater, counsel for the plaintiffs seek to have loss of culture count as an aggravating condition to the sexual assault that was committed against Indigenous survivors of AIRS. Justice Brenner allows this. The defendant Canada does not object to loss of culture as an aggravating condition. Perhaps over-confident that loss of culture was not itself an actionable tort and never would be, Canada then engages in a defence strategy that Chief Robert Joseph, the executive director of the Provincial Residential School Project, referred to as “disturbing.”Footnote 49 Although Brenner J acknowledges that Canada’s strategy may appear “distasteful,” he states that “it is nonetheless the inevitable result” of statutes of limitations on everything but sexual assault.Footnote 50 The strategy is as follows: In order to reduce the compensation for the impact of the sexual abuse for which Canada was seventy-five percent vicariously responsible, Canada uses the words of the plaintiffs to argue that the mere fact of being at AIRS, and all the other violence survivors experienced while there, had more of an impact on survivors’ lives and communities than did the sexual abuse they experienced at the hands of the individual perpetrator Plint. Reiterating Canada’s argument, Brenner J states:
Leaving aside the sexual assault, the plaintiffs would still have been at AIRS and they would a) have been living away from their families, communities and culture; b) have been forced to speak English instead of their own native languages; c) have had to eat food that was vastly different from what they were used to; d) have been subjected to the physical pain and the fear associated with the violence among the children; e) have endured the terror of the gauntlet; f) have been victims of excessive corporal punishment from supervisors and other adults at AIRS; and g) have been subject to racist discrimination when bussed to public schools.Footnote 51
In determining the award of damages to the plaintiffs, Brenner considers two factors that may have had a psychological impact on the IRS survivors. First, the sexual assault committed by Plint, and second, “the simple fact of attending IRS” and all the harms to which attendance gave rise. While the defence strategy on the part of Canada and the Church is indeed disturbing, it is made more so by Canada’s and Brenner’s emphasis on a third possible causal factor: the prior home lives of the plaintiffs and their lives after leaving AIRS. Brenner explains:
. . . [W]ith their family backgrounds, home lives prior to AIRS, the institutionalization at AIRS, and all of the non-sexual traumas which they have suffered to date, the plaintiffs had measurable risks and shortcomings which were inherent to their position regardless of the sexual assaults.Footnote 52
Where more than one wrongdoing or set of causal conditions occurred, as revealed in the above passage, it becomes a challenge for Brenner J to siphon off the consequences of one harm from another, especially when the effects of the tort are psychological (that is, “not objective”). If a clear line of causation cannot be drawn between the wrongdoing and its damage, then the amount of compensation for the tort may be decreased. Given all the non-sexual violence related to AIRS, Brenner J finds it difficult to pinpoint the aspect of the physical and sexual assault committed by Plint that gave rise to trauma in the lives of the plaintiffs.Footnote 53 Here, the non-sexual violence associated with forced assimilation and genocide is explicitly acknowledged (by both Canada and the Court) as having devastating effects on the plaintiffs. As the non-sexual violence is not a legally recognized harm, Canada’s acknowledgement of it is protected by law. In this context, such an acknowledgement must have felt like yet another form of violence to the plaintiffs. How much more so, when Canada and Brenner J twist the plaintiffs’ own words in order to undermine the survivors’ claim?
For example, many survivors testified to the daily terror of the gauntlet. MW1 testified that he was forced to run the gauntlet several times a week, and that it terrified him so much, he would pass out.Footnote 54 After FLB’s first experience of the gauntlet, he “. . . tried to kill himself by jumping head first off the exterior stairs of AIRS.”Footnote 55 Emphasizing that the plaintiffs responded to the terror of the gauntlet with attempts at suicide and/or violence against others,Footnote 56 Canada and the Court turn the fact of cultural genocide against the victim of genocide:
It is questionable as to whether Mr. [FL]B’s lifetime pattern of violence is directly connected to his experiences of being sexually assaulted. It appears that he developed a pattern of resorting to violence as a result of being so violently treated himself at AIRS for reasons he could never understand.Footnote 57
While Plint sexually brutalized Mr. [FL]B. while he attended AIRS, I conclude that the non-sexual brutalization he suffered also had a significant impact.Footnote 58
At AIRS, Mr. [FL]B describes the “enormity” of the loss of his culture and connection with his family as being “overwhelming” and the effects “irreversible.” Being sent to AIRS, he says, cost him his identity and self-esteem. Mr. [FL]B says that it is obvious that the loss of his culture had a “tremendous” effect on him as a person, leaving him “angry as hell.”Footnote 59
. . . The fact that Mr. [FL]B attempted to commit suicide after his first exposure to the gauntlet suggests the extent of his psychological difficulties well before the sexual assaults by Plint were ever committed.Footnote 60
The violence of genocide is emphasized in order that the perpetrator of genocide (Canada and the Church) may save some money. The violence is acknowledged as clearly rooted in the IRS system operated by Canada and backed by the Indian Act. It is also indirectly acknowledged that the violence in survivors’ lives was carried out by a collective (teachers, police, nurses, townspeople, and members of businesses, church, and government), specifically for the purpose of nation building, rather than by the individual perpetrator for whom Canada is vicariously responsible. Canada argues (and Brenner concurs) that the survivors’ psychological difficulties also resulted from life prior to AIRS. Children came from generations of damaged peoples and cultures. Here, colonization is not acknowledged as the source of any such intergenerational damage to Indigenous cultures. Generation after generation of Indigenous people are characterized as being of low intelligence, thereby explaining their lack of education and fruitful employment. That many of the plaintiffs’ families have problems with addiction and substance abuse, as well as with high rates of interpersonal violence, is interpreted by Brenner as evidence of biological, racial inferiority. In the end, the damaged lives, bodies, and cultures that preceded the removal of children to AIRS mitigates any damage caused by attempted genocide, which in turn mitigates any damage caused by the sexual assault. Canada and the Church will be required to pay very little in compensation.Footnote 61
Brenner’s judgement leaves us with an account of Indigenous survivors as perpetually childlike, as culturally and personally dysfunctional, and as damaged property in need of transformation and improvement (by the settler). Importantly, dysfunctional people cannot be awarded stewardship of land. Brenner’s judgement also leaves us with an account of the settler collective as capable of genocide but as only vicariously responsible for the crimes of individuals. I suggest that reducing Indigenous survivors to property becomes even more pronounced in this phase precisely because law enabled the settler to freely boast about the violence of the IRS system as a colonizing mechanism. The settler’s racial fantasy of rightful ownership of land is bolstered, despite the ever-growing recognition of its illegitimacy.
What “Lurks beneath the Surface” of Blackwater?
All parties to the litigation appeal Brenner J’s 2001 decision, and it eventually reaches the Supreme Court of Canada under the case title Barney v Canada. In the 2005 decision, SCC CJ McLachlin upholds most of Brenner’s original decision. As previously mentioned, she overturns Brenner’s ruling that Canada had “a non-delegable statutory duty to ensure the safety and welfare of the students at the school,” the only thread of direct liability on the part of Canada. Lawyers for FLB (and LEAF as intervener) argue that Brenner ought to have regarded the “original position as pre-IRS internment.”Footnote 62 With AIRS as the original position, Brenner could not trace a direct causal connection between sexual abuse alone and psychological impact. With pre-internment as the original position, FLB could claim that Canada breached its fiduciary duty “. . . of loyalty and an obligation to act in a disinterested manner that puts the recipient’s interest ahead of all other interests” in subjecting children to all the “non-sexual brutality” of the schools.Footnote 63 In this decision, McLachlin notes that another issue “lurks beneath the surface,” namely,
. . . the argument that the system of residential schools robbed Indian children of their communities, culture and support and placed them in environments of abuse. This, it is argued, amounted to dishonest and disloyal conduct that violated the government’s fiduciary duty to Canada’s Aboriginal peoples.Footnote 64
McLachlin dismisses this claim, finding that neither Canada nor the Church were “dishonest or intentionally disloyal.”Footnote 65 Breach of this second basis of fiduciary duty (a duty rooted in treaties between nations) remains untouchable through law. This 2005 decision followed within a year of McLachlin’s 2004 Haida decision and the 2004 certification of Cloud. If these are considered in tandem, law once again appears to function as steward of settler legitimacy. To sever the sexual assaults committed within the IRS system from the cultural violence (across generations) committed through the IRS system, is to obscure the connection between IRS genocide and land—land seized and occupied through dishonourable means. McLachlin clears the way for the Crown—whose sovereignty hangs on a mere assertion—to “consult and accommodate” regarding land and resources with the appearance of honour. McLachlin’s ruling on fiduciary duty may also protect Canada against the loss of culture claims in the looming Cloud and Baxter class actions.
Implications for Baxter v Canada
Canada’s disturbing defence strategy in Blackwater occurred when courts would not consider loss of culture as an actionable tort. With the 2004 certification of Cloud, Baxter v Canada would also likely be certified. Initiated in 2000, by 2006, Baxter merged all IRS class and individual actions against the Government of Canada that were in the courts at the time and represented more than 80,000 Indigenous claimants from across the land. While it began as a twelve-billion-dollar suit, its amended 2006 claim sought one hundred billion in damages against Canada (and another one hundred billion against the Churches). When the government’s appeal of both Cloud and Baxter failed in May of 2005, the government hired retired SCJ Iacobucci to negotiate a settlement agreement. Up until this time, every Canadian government (Liberal and Conservative) challenged every IRS litigation claim and resisted negotiating global reparations for survivors of the IRS system. Is there something about Baxter that may have changed Canada’s response?
The Baxter 2003 application for certification claims that the Crown breached Aboriginal treaty rights and human rights to enjoy, practice, and transmit Aboriginal languages, and that the Crown breached its fiduciary duty with respect to its conduct regarding the purpose, operation, management, and supervision of IRS. Baxter claims that the Crown was systemically negligent and in breach of its non-delegable fiduciary duty to protect the health, safety, well-being, language, culture, customs, traditions, and education of survivors, and that it unlawfully apprehended and confined children and separated them from family and community. Moreover, Baxter cites United Nations’ conventions regarding genocide, war crimes, crimes against humanity, and the rights of children.
The plaintiffs in Baxter emphasize the intergenerational impact of attending IRS. I contend that Baxter frames survivors’ experiences as evidence of ongoing genocide rather than as evidence of biological, racial, and cultural inferiority, as interpreted in Blackwater. As with the testimony in other civil suits such as Blackwater, the plaintiffs’ affidavits reveal a web of violence committed by a settler collective (state agents and citizens including teachers, nurses, police, clergy, and government officials) well into the present. Truant officers abducted children and loaded them in trucks. Trucks driven by Canadian citizens delivered the children to airplanes. Airplanes piloted by Canadian citizens delivered children to remote institutions, and these institutions were operated by yet more Canadian citizens. A great number of Canadians were necessary to carry out the organized violence of the IRS system. Baxter places genocide explicitly on the table and implicates a settler collective in this violence through time.
I suggest that revealing this dishonourable behaviour in a court of law (even if the Indigenous claimants were to lose) threatened to reveal the illegitimacy of both Canada’s claim to sovereignty and the sense of rightful belonging on the part of the settler collective. Further, Canada’s disturbing defence strategy in Blackwater—i.e., its argument that loss of culture was more to blame for the psychological impact of IRS than was the historic sexual abuse—could have backfired on Canada if Baxter were to proceed to court and with the argument that Canada knowingly engaged in practices tantamount to genocide. For, given Brenner’s 2001 decision, there is now at least one judicial decision documenting Canada’s argument that cultural loss (and every violence other than the sexual abuse) had a greater impact on Indigenous survivors’ lives than did sexual abuse alone. In 2006–2007, nine justices simultaneously certify Baxter and bring Baxter (and Cloud) to a close by authorizing the IRSSA. In their decisions, they once again mark the Indigenous survivors as a damaged collective. With the dishonourable behaviour of genocide and settler illegitimacy hidden from view, and the potential damage of Canada’s defence strategy in Blackwater under control, Canada is free to move forward with business as usual. Business regarding land claims and delimiting forms of Indigenous sovereignty and self-determination. The Baxter settlement allows the settler collective (and its law) to stay.Footnote 66
Conclusion: Troubling the Path to Decolonization
The racial ontology of property and the violence of dehumanization continue to operate within Canadian law, reproducing ideas of those who belong and those who do not belong to a given race and place. The violence of the mere assertion of sovereignty, which, in Fanon’s words, “parcels out the world;” the violence of the settler collective’s occupation of Indigenous lands; and the violence of attempted genocide, are interrelated, past into present. These interrelated forms of violence, as revealed in IRS case law, should trouble the settler collective’s vision of decolonization and the role that Canadian law may play in decolonizing processes. What, if not attempted genocide, will Canadian law ever count as dishonourable behaviour on the part of the Crown? Should a law that authorized past colonial violence, and that readily unleashes the violence of dehumanization today, be preserved (rather than abandoned and replaced altogether)? As Taiaiake Alfred argues, justice requires the dismantling of settler colonial institutions, a redistribution of power, and a return of land and resources.Footnote 67 Canadian law operates contrary to these goals.
Relatedly, what, if not attempted genocide, will shake the settler collective’s sense of rightful belonging and the right to stay on Indigenous land? Recognition of the IRS system as genocide is now—after the settlement of Baxter—surfacing in mainstream Canadian social and political discourse. More settlers embrace the idea that “we are all treaty peoples,” and yet we, the settlers, continue to draw a line, parceling out the world, beyond which (we assert) we will not move. This line is that of refusing to even imagine the return of land to Indigenous people and, more importantly, to acknowledge and live by the Indigenous laws of that land. This line is that of refusing to even imagine that if justice requires an end to settler occupation of Indigenous land, then the settler collective is morally required to move. Rather, the settler collective presumes that it is enough to tweak aspects of government-to-government relations in order to extend economic prosperity to Indigenous peoples whose lands (we assert) we will continue to “share” because Indigenous people do not want us to leave anyway. The settler promises to enhance the Indigenous collective’s ability to (barely) survive: to create opportunities for the Indigenous collective to become better educated and to become labourers in the settler’s profitable economy—one of the goals of the IRS system. All such strategies leave the settler feeling good about “improving” the Indigenous collective, while leaving settler sovereignty and settler occupation unchanged.Footnote 68
Genuine decolonization requires more from settlers. It requires that settlers address the violence not only of genocide, but also of Canada’s mere assertion of sovereignty over Indigenous nations and the ongoing violence of settlers’ own (uninvited and unauthorized) physical occupation of Indigenous lands. As Tuck and Yang argue, the injustice of settler occupation changes the terms on which decolonization should be negotiated.Footnote 69 Indigenous nations should decide whether the settler collective has a future on Indigenous territory. Thus there are different paths for the settler collective and Indigenous collectives in moving towards decolonization. Just as Glen Coulthard recommends that Indigenous people cultivate “anti-colonial agency” by disengaging from “the colonial project” and refusing to look to the settler for recognition of either humanity or sovereignty,Footnote 70 I recommend that we, the settlers, challenge the arrogant assumption (and law) that we legitimately belong on Indigenous land, and that we rightfully have the power to grant humanity or sovereignty to anyone.
