(My thanks to IntLawGrrls for the opportunity to guest post on my new paper.)In September 2007, the Canadian government began to make compensation payments to former students of Indian Residential Schools like that pictured at left. By July 2008, the government had received 94,085 applications for the Common Experience Payment and issued payments to 66,232 survivors. Exactly a year ago today, the Canadian government apologized for its Residential Schools policy. (video clip; prior IntLawGrrls post) In May 2009, three commissioners were appointed to begin the work of the Indian Residential Schools Truth and Reconciliation Commission, intended to record the testimony of Residential School survivors and foster reconciliation.
The framework of transitional justice, originally devised to facilitate reconciliation in countries undergoing transitions from authoritarianism to democracy, is used with increasing frequency to respond to certain types of human rights violations against indigenous peoples. In some cases, transitional justice measures are employed in societies not undergoing regime transition. Both the government of Prime Minister Stephen Harper and the leaders of the First Nations seem keen to employ transitional justice measures to deal with the legacy of the Residential Schools. Nevertheless, they have different reasons for endorsing a transitional justice framework, and distinct perspectives on the work and goals of the apology, the TRC, and compensation.
Transitional justice measures are limited. In Canada, such measures are designed to address only the legacy of the Residential Schools. But indigenous leaders may be able to push a transitional justice framework further, to demonstrate that the Residential School system was part of a larger web of racist and oppressive government policies, not an aberration in Canadian government policy toward First Nations. The system was of a piece with other racist and discriminatory practices that have structured aboriginal life and life chances for the past three hundred years, mostly under the sheltering umbrella of the 1920 Indian Act.
The government’s acknowledgement of the injustice and cruelty of the Residential School system offers an opening that aboriginals could use to highlight the injustices of other government policies, and the almost ludicrous effrontery of offering an apology for the Residential School system alone, in light of the apocalyptic damage and harm the colonial and Canadian governments have perpetrated against aboriginal peoples. To the extent a transitional justice paradigm supposes the existence of historic injustice, and implies that states have an obligation to redress such injustice, it may open space for a much broader conceptualization of the actual injustices post-colonial governments may be held responsible for.
The scope of transitional justice is not only contested spatially, but also temporally. For the government, one goal of transitional justice is to draw a line through history, emphasizing that it takes responsibility for government abuses that are nevertheless firmly in the past. It thereby underlines a distinction between present and past policy, to bring an end to recriminations that keep it morally on the defensive. Such government initiatives as apologies, truth commissions, and reparations are designed in part to allow the government and the dominant (settler) society to say finally to aboriginal peoples “OK, now we’re even.” The “transition” is to an even playing field in which the government can finally wash its hands of past wrongs.
For indigenous leaders, transitional justice is not a wall, but a bridge. Aboriginal peoples have an interest in using transitional justice to draw history into the present, and to draw connections between past policy, present policy, and present injustices. Indigenous peoples may wish to extend new conceptions of historical wrongs to demonstrate that certain present policies re-inscribe historical injustices and relations of oppression. It has taken many years for non-
aboriginal Canadians to recognize and acknowledge that the residential school system was racist, abusive, and fundamentally wrong, not only in its practice but also in its intent. Indigenous leaders may use transitional justice to push this cognitive transformation, to critique present policy by drawing conceptual links to past policies. For indigenous peoples, transitional justice is effective to the extent it links the past with the present. The “transition” is to a relationship in which connections between past and present are firmly acknowledged, and in which the past guides present conceptions of obligation.
aboriginal Canadians to recognize and acknowledge that the residential school system was racist, abusive, and fundamentally wrong, not only in its practice but also in its intent. Indigenous leaders may use transitional justice to push this cognitive transformation, to critique present policy by drawing conceptual links to past policies. For indigenous peoples, transitional justice is effective to the extent it links the past with the present. The “transition” is to a relationship in which connections between past and present are firmly acknowledged, and in which the past guides present conceptions of obligation.
