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Social Justice Report 2000: Chapter 5: Reparations

Social Justice Report 2000

Chapter 5: Reparations

Introduction

Reparations and forcible removal policies

Reparations in international law: the van Boven principles and international treaties

Reparations in Australia: the Federal government's response

 

 

An apology

Compensation

Litigation

 

 

International comparisons

Canada

 

 

i) Gathering strength - responding to the Royal Commission into aboriginal peoples

ii) Restoring Dignity: the report of the Law Commission of Canada

New Zealand

Settlement of indigenous rights claims under the Treaty of Waitangi

South Africa

Conclusion


The Senate Legal and Constitutional References Committee conducted an inquiry this year into the federal government's implementation of recommendations made by the Human Rights and Equal Opportunity Commission in Bringing them home. The inquiry considered proposals for the establishment of an alternative dispute resolution tribunal for members of the stolen generations; and considered the consistency of the government's response to the recommendations with the reconciliation process and the aspirations and needs of members of the stolen generations. This chapter is an edited version of the submission I made to the inquiry and answers given to questions on notice. [1] It focuses on the meaning of reparations in international law, and examples of the responses of other governments to gross violations of human rights.

Reparations and forcible removal policies

As a society we cannot simply accept without question and comment the choices made in the past, and leave it to those who suffered to get on with their lives as best they can. We must confront the consequences of those choices and do what is necessary to rectify the wrongs. [2]

Two things need to be said at the outset about reparation. First, reparation - the process of making amends for harm and injustice suffered - is fundamental to reconciliation. There cannot be reconciliation without reparation. The historical disadvantage, suffering and hostility that reconciliation attempts to overcome will only occur when there are genuine and concrete measures to put right the wrongs. Secondly, reparation for members of the stolen generation needs to be placed in the context of the key finding of Bringing them home, which found that policies of forcible removal, and their long term consequences, constituted gross violations of human rights.

The National Inquiry had been asked by its terms of reference to consider the question of 'compensation for persons or communities affected by ... separation'. [3] The report of the Inquiry concluded that the nature of the harm suffered by members of the stolen generation could be better understood and addressed if compensation was interpreted more broadly as reparation. It recommended that reparation should consist of:

  • Acknowledgement and apology;
  • Guarantees against repetition;
  • Measures of restitution;
  • Measures of rehabilitation; and
  • Monetary compensation. [4]

In recommending this range of remedial responses, the National Inquiry recognised that, by itself, financial compensation does not heal the individual and collective harm caused by human rights abuses. The National Inquiry supported the view, embodied in international treaties and customary law, that measures aimed at rehabilitation and atonement are appropriate and necessary responses to human rights violations. In particular, the National Inquiry endorsed the principles developed by UN Special Rapporteur van Boven in his Basic Principles and Guidelines on the Right to Reparations for Gross Violations of Human Rights (the van Boven principles). [5]

Reparation in international law: the van Boven principles and international treaties

The van Boven principles are the result of a study commissioned in 1989 by the United Nations Sub Commission on the Prevention of Discrimination and Protection of Minorities, a sub group of the UN Commission on Human Rights. Professor van Boven submitted his report in 1993, with a revised version completed in 1996. The Commission described the principles as a useful basis for giving priority attention to the question of restitution, compensation and rehabilitation and has sought further development and refinement of them. In 1998 the Commission asked M Cherif Bassiouni to provide a further revision of the principles, with a view to their adoption by the UN General Assembly.

In his first report, Cherif Bassiouni commended the work of van Boven, as well as of Louis Joinet, Special Rapporteur of the Sub-Commission on the question of the impunity of perpetrators of violations of human rights. Joinet's set of principles on the problem of impunity also include principles relating to rights to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms. [6] Cherif Bassiouni intends to build upon the foundation provided by van Boven and Joinet, noting that in recent years, references to the terms 'restitution', 'compensation', 'rehabilitation', 'reparations' and 'redress' relative to human rights violations have appeared in a large number of UN reports, in the Statute of the International Criminal Court and in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

His primary tasks are to harmonise treatment, resolve a certain lack of consistency in terminology, address the coverage of human rights, humanitarian law and responsibility for redress, and to work towards universally acceptable standards through broad consultative process.

The continuing consideration of the van Boven principles within the UN system in no way diminishes their significance. These principles are a synthesis of well-recognised international practice, reflecting existing standards rather than creating new ones.

The right to redress for human rights violations is recognised in the provisions of numerous human rights instruments. These include:

  • Universal Declaration of Human Rights (article 8);
  • International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (article 6); [7]
  • International Covenant on Civil and Political Rights (articles 2(3), and 9(5));
  • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (article 14(1));
  • Convention on the Rights of the Child (article 39);
  • European Convention for the Protection of Human Rights and Fundamental Freedoms (articles 50, 5(5));
  • American Convention on Human Rights (articles 10, 63(1) 68); and
  • African Charter on Human and Peoples' Rights (article 21(2)).

In summary, the provisions of international human rights treaties support the existence of a threefold obligation on parties to human rights treaties:

  • to conduct an independent, speedy and impartial investigation as soon as there is a formal complaint of a violation of human rights, such as torture, homicide or forced disappearance;
  • to prosecute the offenders; and
  • to repair the damage caused, awarding the victims means of rehabilitation, and where applicable, compensation or economic indemnification. [8]

The right to reparation is also recognised in a number of texts relating to crime prevention and criminal justice. In particular, the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides:

  • victims are entitled to prompt redress for the harm that they have suffered;
  • they should be informed of their rights in seeking redress;
  • offenders or third parties should make fair restitution to victims, their families or dependents. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights;
  • when compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation; and - victims should receive the necessary material, medical, psychological and social assistance and support.

The General Recommendation on Violence Against Women, adopted in 1992 by the Committee on the Elimination of Discrimination Against Women, recommends a range of protective, preventive, rehabilitation and compensatory measures, including:

  • appropriate protective and support services for victims - para 24(b);
  • preventive and rehabilitation measures - para 24 (h);
  • effective complaints procedures and remedies, including compensation - para 24(I);
  • rehabilitation and counselling - para 24(k);
  • accessibility of services to victims living in isolated areas - para 24(o);
  • services to ensure the safety and security of victims and rehabilitation programmes - para 24(r); and
  • effective legal measures, including compensatory provisions, preventive measures, protective measures - para 24(t).

The Inter-American Court of Human Rights has affirmed that under the American Convention on Human Rights, States parties have a responsibility to investigate violations of human rights, to prosecute perpetrators and to compensate victims adequately. In accordance with article 1, States parties undertake to ensure to all persons subject to their jurisdiction the free and full exercise of the rights and freedoms recognized in the American Convention, in a comprehensive manner. In the Velasquez Rodriguez Case the Court found that the failure to guarantee the rights enumerated in the Convention itself a violation of States' obligations under Article 1:

This obligation [in article 1] implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the full and free enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violations of the rights recognized by the Convention and moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violations. [9]

The Court continued:

The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim compensation. [10]

In the Aloeboetoe case, [11] the Inter-American Court of Human Rights ordered specific non-pecuniary measures as part of a compensatory damages judgment. The Court first determined that the obligation to make reparation is a rule of customary law and 'one of the fundamental principles of current international law.' [12]

As part of its reparations package, the Court ordered the reopening of a school and clinic in the victims' village so 'that the children be offered a school where they can receive adequate education and basic medical attention.' [13] Significantly, the Court ordered the government to deposit a specified sum of compensation in two non-taxable trust funds for the beneficiaries, one on behalf of the minor children and one on behalf of the adult beneficiaries. The Court also ordered the creation of a fiduciary committee called the 'Foundation' to administer the funds as trustee. [14] Finally, as with the Velasquez Rodriguez compensation judgment, the Court determined to supervise compliance with the reparations order before closing the file on the case.[15]

In two more recent cases the Inter-American Court has ordered reparations to be agreed upon by the parties themselves within a specified time period, reserving the power to determine reparations if no agreement is reached.[16]

In summary, the van Boven principles cannot be rejected on the basis that they have no formal status in international law. [17] Their validity is assured by the longstanding acceptance of the existing human rights standards synthesised by Special Rapporteur van Boven.

Reparations in Australia: the Federal government's response

The purpose of the Senate Legal and Constitutional References Committee inquiry into the implementation of the recommendations of Bringing them home was broadly speaking, to review how, and how well, the federal government has responded to those recommendations. [18]

The government submission to the Senate inquiry, presented by the Minister for Aboriginal and Torres Strait Islander Affairs, is an instructive summary of government policy responses to the Bringing them home recommendations, and the thinking behind those policies. [19] In essence, the federal government has declined to embrace the reparations principle. It concedes that a measure of assistance to address current rehabilitative needs is appropriate [20] but rejects the call for a formal apology and monetary compensation.[21]

An apology

The call for formal apologies to Indigenous Australians who are members of the stolen generations became a national issue in 1997 when Bringing them home recommended that:

All Australian Parliaments:

1. officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal,

2. negotiate with the Aboriginal and Torres Strait Islander Commission a form of words for official apologies to Indigenous individuals, families and communities and extend those apologies with wide and culturally appropriate publicity ... [22]

The federal government's initial response was to the effect that Australians of this generation should not be required to accept guilt and blame for the past actions and policies over which they had no control. This guilt and blame rhetoric has been misleading, but effective: in its submission to the Senate inquiry in March 2000, the federal government noted that 'a significant majority of Australians' supported the proposition that 'Australians today were not responsible for what happened to Aboriginal people in the past, so today's government should not have to apologise for it'. [23]

An apology from the federal parliament is not about the imposition of guilt and blame on individual Australians. Rather, a formal national apology parliament is a powerful symbolic expression of collective acknowledgement, regret and atonement. It demonstrates that the community as a whole recognises the injustices inflicted on some of its own people and now seeks to atone for the harm suffered. Many parliamentarians did recognise the true purpose and effect of formal apologies. By the end of 1997, seven of the nine Australian parliaments had passed motions of apology, with only the federal and Northern Territory governments declining to do so. [24]

Some might suggest that perceptible progress towards a formal national apology was made on 26 August 1999 when the Commonwealth Parliament endorsed a Motion of Reconciliation. This motion officially acknowledged 'the mistreatment of many indigenous Australians' and expressed 'deep and sincere regret that indigenous Australians suffered injustices under the practices of past generations'. It contained a number of relevant acknowledgements concerning the historical role of indigenous people in Australian society and the injustices they have suffered as a result of past laws and government policies. The Prime Minister described the motion as 'a genuine, generous and sincere attempt to recognise past errors' and it was no doubt intended to contribute to the process of reconciliation between Aboriginal and Torres Strait Islanders and the wider community. However, the Prime Minister also described the motion as 'generic', there being no direct reference to policies and practices of forcible removal.

The motion must be regarded as only one small contribution to the reconciliation process. Reconciliation cannot be imposed on one party by the other. It cannot be achieved when there is little or no consultation between the parties or when they adopt a 'take it or leave it' approach to the terms of their reconciliation. Participation on equal terms and the full agreement of both parties are essential to genuine reconciliation.

The mutually participatory nature of apologies was discussed in a report prepared for the Law Commission of Canada. The report, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations [25] suggests that:

the party making an apology should not do so unilaterally, without engaging the recipient in the process, if the apology is to be meaningful. Making a meaningful apology requires the wrongdoer and the injured party to enter into a dialogue. [26]

Apologising for Serious Wrongdoing refers to commentary by other writers who have emphasised the importance of negotiation and consultation:

An apology is not a soliloquy. Instead, an apology requires communication between a wrongdoer and a victim; no apology occurs without the involvement of each party. [27]

Ultimately the success of an apology rests on the dynamics between the two parties, not on a pat recipe. The apology is an interactive process in which a deal has to be struck that is... satisfactory to both involved parties. [28]

The members of the stolen generation must be allowed to decide whether the Motion of Reconciliation, and the Prime Minister's explanation of it, is adequate. If members of the stolen generation determine that it is not sufficient, the necessary next step will be for representatives of the stolen generation and the federal government to begin the potentially slow and painstaking process of negotiating a genuine apology that meets the reasonable needs and aspirations of both parties.

Compensation

Bringing them home recommended that 'monetary compensation should be payable for harms and losses for which it is not possible to make restitution in kind.' [29]

Although the Commission's terms of reference required it to make recommendations concerning compensation, the Federal government ruled out compensation before the National Inquiry had completed its deliberations and presented its final report.

The federal government's submission to the Senate inquiry confirmed its rejection of monetary compensation. In doing so, it identified a number of 'impediments' to compensation. Among these is the difficulty in quantifying the type of loss forcibly removed children may have suffered:

there is no comparable area within the common law of judicial awards of compensation and no basis for arguing a quantum of damages from first principles. Principles governing the quantification of damages at law can afford guidance ...but there would be enormous difficulties applying them in cases such as these. [30]

The quantification of past and future loss can be difficult but this should not justify the refusal to consider monetary compensation. As the New South Wales Law Reform Commissioner, Professor Regina Graycar, has stated:

Even the most minimal familiarity with the legal frameworks used for compensating various sorts of injuries would make it clear that the Government's argument [that there is no comparable area of compensation] is little more than a rhetorical device. What is, or is not, compensable at law is more a matter of political judgment and government policy than it is a matter of any inherent legal understanding of compensability. [31]

There are many contexts in which damages are awarded, either through common law recognition of loss or through statutory compensation schemes. In particular, courts have been called upon to assess the loss to an Indigenous accident victim of their ability to participate fully in cultural life; see for example Napaluma v Baker,[32] Dixon v Davies,[33] and Namala v Northern Territory. [34]

Numerous statutory compensation schemes operate in Australia. Workers' compensation, criminal injuries compensation, motor accidents compensation, or sporting injuries compensation all exist because of the political judgement that in certain circumstances it is in the public good to provide compensation, irrespective of difficulties associated with liability and the quantification of loss.

Vaccine compensation - for people who have suffered severe disability as a result of vaccination - is another instance where a political judgement can be made about compensability in the absence of legal liability. In the United Kingdom a statutory scheme provides lump sum payments to people who have suffered physical and mental disability as a result of vaccination under routine public vaccination programs. The Vaccine Damage Payments Act 1987 currently provides a blanket 40 000 pounds (insert symbol) payment to people who suffer severe damage after vaccination against common childhood diseases such as polio, diptheria, tetanus, measles and mumps. The payment is intended to assist with the present and future needs of such people, and their families, and does not prejudice their right to sue for compensation. The Act sets a high entitlement threshold - it applies only to cases assessed at 80 per cent disability - but applies to vaccination programs administered from the beginning of Britain's National Health Service in 1948.

The rationale for vaccine payments is simple. Vaccination programs are an effective public health measure but in a small number of cases there may be serious side effects. The provision of vaccine damage payments reflects a policy choice that a person who suffers vaccine damage should receive some measure of prompt assistance without having to establish legal liability.

In Australia, Graycar cites the singular statutory scheme established pursuant to the Repatriation Act 1920 (Cth) for war veterans seeking compensation for injuries or illness caused by war service. From 1977-1985, the normal standard and burden of proof were reversed. The respondent (the Federal Government) was required to prove beyond reasonable doubt (the criminal, not civil, standard of proof) that the injury was not caused by war service in order for a veteran to be refused compensation. [35] As Graycar argues, this unique burden and standard of proof for a statutory compensation regime embodied a political choice that supposedly reflected community values:

To argue, as the Commonwealth Government has, that [compensation] is not possible as there is no framework by which to assess damages is disingenuous and ignores the many political choices that are routinely made in deciding which interest, and whose interests, we value in our community. [36]

Similarly, the refusal to consider compensation for Aboriginal people removed from their families as a result of government policy reflects a political choice about that group's lack of entitlement.

Litigation

The federal government stated in its submission to the Senate inquiry that, assuming the van Boven principles were applicable, their requirements would be satisfied:

by the legal and constitutional rights which people affected by past separation practices enjoy. In particular, the fact that legal proceedings relating to alleged child removal polices are currently progressing in different Australian jurisdictions indicates that a proper forum is available in which reparation may be sought. [37]

In effect, the government has said that international reparation principles are honoured because Australian citizens can initiate legal proceedings against the Commonwealth. But as court cases to date show, particularly the decision of the Federal Court in Cubillo v Commonwealth [38] litigation may only diminish the chances of achieving true reparation and reconciliation.

The costs of litigation - in time, money and personal pressure borne by litigants and witnesses - can be prohibitive. The evidential problems of stolen generation litigation - the time that has elapsed since removals occurred, the resultant loss of recollection, and the lack of records and corroborative witnesses - are further, perhaps fatal, impediments to redress. There are hundreds of claims filed in Australian courts seeking redress for wrongful removal, but as Cubillo has demonstrated, the courts will be reluctant to make findings against the Commonwealth. That reluctance is based on the possibility that the passage of time and the lack or evidence may result in extensive prejudice to the Commonwealth and make a fair defence impossible. From a would-be plaintiff's perspective, this can only mean that claims will fail, or never be brought in the first place, regardless of the justice of the case. The terrible consequences of forcible removal policies may be beyond dispute in most people's minds, but the call for redress and rehabilitation goes unanswered.

Further, in the case of Western Australia, the federal government's assertion that reparation principles are satisfied by the opportunity to seek legal remedy, apparently overlooks the effect of the statute of limitations in that state (that is, the prohibition on bringing legal action after a certain length of time has elapsed). In Western Australia, members of the stolen generation cannot bring claims against the Commonwealth where their claims are outside the limitation period as, unlike other jurisdictions, no exceptions to the limitation period are allowed.

Similarly, there is no capacity within the legal systems of Australia to establish liability in a court of law in relation to a number of the grounds identified in Bringing them home. Genocide is not prohibited in Australian law. Similarly, there is no redress available for laws, policies and practices prior to 1975 that were racially discriminatory. It is disingenuous to insist that legal liability is a prerequisite to considering compensation options when it is manifestly clear that victims of forcible removal policies are prevented from being able to establish such liability through court processes on some of the grounds identified in Bringing them home.

International comparisons

The refusal to formally apologise to members of the stolen generation for past injustices, the failure to develop comprehensive reparation programs, and advocacy of litigation as an appropriate redress mechanism are contrary to a world-wide trend. Increasingly, governments across the globe have scrutinised the practices of their predecessors and acknowledged the importance of making reparation to members of their communities who have been victims of human rights violations. The following sections of this chapter examine reparation policies adopted by Canada, New Zealand and South Africa. These government policies respond to human rights violations committed against groups within their communities. They recognise that litigation may be an inadequate instrument for the redress required.

Recent Canadian experience receives particular attention, for two reasons. First, from the late 19th century Australia and Canada both adopted policies of forced assimilation of indigenous children and both now seek solutions to the problems resulting from those policies. Second, tangible and symbolic measures adopted by the Canadian government to promote reconciliation and reparation are compelling examples of what is possible given the political will.

Canada

i) Gathering strength - responding to the Royal Commission into aboriginal peoples

As discussed in chapters 2 and 4, the Canadian federal government released Gathering strength, [39] its policy response to the five-volume report of the Royal Commission on Aboriginal Peoples (RCAP) in January 1998. [40] The Canadian government described Gathering strength as a long-term action plan to renew the relationship with the aboriginal people of Canada and build on the principles of mutual respect, mutual recognition, mutual responsibility and sharing which were identified in the report of the RCAP. [41]

Gathering strength begins with a Statement of Reconciliation that acknowledges the mistakes and injustices of the past. It includes a Statement of Renewal that expresses a vision of a shared future for aboriginal and non-aboriginal people and outlines four objectives for action:

  • renewing the partnerships;
  • strengthening aboriginal governance;
  • developing a new fiscal relationship; and
  • supporting strong communities, people and economies. [42]

The Statement of Reconciliation contains an apology to the indigenous peoples of Canada which is reproduced in full.

Learning from the past

As aboriginal and non-aboriginal Canadians seek to move forward together in a process of renewal, it is essential that we deal with the legacies of the past affecting the aboriginal peoples of Canada, including the First Nations, Inuit and Metis. Our purpose is not to rewrite history but, rather, to learn from our past and to find ways to deal with the negative impacts that certain historical decisions continue to have in our society today.

The ancestors of First Nations, Inuit and Metis peoples lived on this continent long before explorers from other continents first came to North America. For thousands of years before this country was founded, they enjoyed their own forms of government. Diverse, vibrant aboriginal nations had ways of life rooted in fundamental values concerning their relationships to the Creator, the environment, and each other, in the role of Elders as the living memory of their ancestors, and in their responsibilities as custodians of the lands, waters and resources of their homelands.

The assistance and spiritual values of the aboriginal peoples who welcomed the newcomers to this continent too often have been forgotten. The contributions made by all aboriginal peoples to Canada's development, and the contributions that they continue to make to our society today, have not been properly acknowledged. The Government of Canada today, on behalf of all Canadians, acknowledges those contributions.

Sadly, our history with respect to the treatment of aboriginal people is not something in which we can take pride. Attitudes of racial and cultural superiority led to a suppression of aboriginal culture and values. As a country, we are burdened by past actions that resulted in weakening the identity of aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices. We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated, disrupted, limited or even destroyed by the dispossession of traditional territory, by the relocation of aboriginal people, and by some provisions of the Indian Act. We must acknowledge that the result of these actions was the erosion of the political, economic and social systems of aboriginal people and nations.

Against the backdrop of these historical legacies, it is a remarkable tribute to the strength and endurance of aboriginal people that they have maintained their historic diversity and identity. The Government of Canada today formally expresses to all aboriginal people in Canada our profound regret for past actions of the federal government which have contributed to these difficult pages in the history of our relationship together.

One aspect of our relationship with aboriginal people over this period that requires particular attention is the Residential School system. This system separated many children from their families and communities and prevented them from speaking their own languages and from learning about their heritage and cultures. In the worst cases, it left legacies of personal pain and distress that continue to reverberate in aboriginal communities to this day. Tragically, some children were the victims of physical and sexual abuse.

The Government of Canada acknowledges the role it played in the development and administration of these schools. Particularly to those individuals who experienced the tragedy of sexual and physical abuse at residential schools, and who have carried this burden believing that in some way they must be responsible, we wish to emphasize that what you experienced was not your fault and should never have happened. To those of you who suffered this tragedy at residential schools, we are deeply sorry.

In dealing with the legacies of the Residential School system, the Government of Canada proposes to work with First Nations, Inuit and Metis people, the Churches and other interested parties to resolve the longstanding issues that must be addressed. We need to work together on a healing strategy to assist individuals and communities in dealing with the consequences of this sad era of our history.

No attempt at reconciliation with aboriginal people can be complete without reference to the sad events culminating in the death of Metis leader Louis Riel. [43] These events cannot be undone; however, we can and will continue to look for ways of affirming the contributions of Metis people in Canada and of reflecting Louis Riel's proper place in Canada's history.

Reconciliation is an ongoing process. In renewing our partnership, we must ensure that the mistakes which marked our past relationship are not repeated. The Government of Canada recognizes that policies that sought to assimilate aboriginal people, women and men, were not the way to build a strong country. We must instead continue to find ways in which aboriginal people can participate fully in the economic, political, cultural and social life of Canada in a manner which preserves and enhances the collective identities of aboriginal communities, and allows them to evolve and flourish in the future. Working together to achieve our shared goals will benefit all Canadians, aboriginal and non-aboriginal alike.[44]

As part of its response to the RCAP report, the Canadian government also addressed the issue of the residential school system. [45] According to Gathering strength:

Any attempt at reconciliation would be incomplete without reference to Residential Schools, and dedicated action in support of those aboriginal people who tragically suffered abuse as children while in these institutions. Concerted efforts are required to help aboriginal individuals, families and communities in the healing process. In the Statement of Reconciliation, the Government of Canada has said to the victims of sexual and physical abuse that we are deeply sorry. The Government of Canada is also committed to assisting in community healing to address the profound impacts of abuse at Residential Schools. Healing initiatives will be designed in partnership with the aboriginal leadership and victims groups, and will be delivered in the broadest possible fashion to all aboriginal people, including Metis and off-reserve individuals and communities that have been impacted by the residential school system. [46]

The residential schools' avowed purpose was the separation of indigenous children from their families, communities and culture and their assimilation into white society. For decades, widespread sexual, physical and emotional abuse occurred in these institutions. For the most part, the abuse was hidden, ignored or denied. It is estimated that approximately 100,000 indigenous children were placed in residential schools. [47]

The devastating inter-generational consequences of this system - such as repeating cycles of child abuse, spousal violence and family breakdown, substance abuse, suicide, mental disorders and offending - are now well recognised. A cornerstone of the Gathering strength policy is the provision of a $350 million (Canadian) fund to support community-based healing initiatives for indigenous people affected by the legacy of physical and sexual abuse in residential schools.

The agency responsible for distributing this fund, the Aboriginal Healing Foundation (the Foundation), was established following wide consultation with indigenous people. Its allotted task is to develop a national plan to break the cycles of harm and abuse suffered by indigenous Canadians. The Foundation is an independent, non-profit corporation controlled and staffed by Indigenous people. It is incorporated under the federal laws of Canada and authorised to operate in all provinces and territories. Its funding agreement with the federal government requires it to have used its 'best efforts to commit' all of the $350 million and accumulated interest over a four year period and to have distributed the entire fund within 10 years.

The Foundation's aim is to support projects that provide holistic and community based healing initiatives, addressing the needs of individuals, families and communities, and which complement existing programs or meet needs that are currently not supported. Four main program themes have been developed:

  • Healing: community approaches and healing centres;
  • Restoring balance: projects that focus on the early detection and prevention of the effects of the legacy of abuse on aboriginal people;
  • Developing and enhancing aboriginal capacities: programs which focus on building a sustainable capacity for healing processes, so that appropriate groups and institutions within the community can meet ongoing healing needs; and
  • Honour and history: the creation of an historical record of the residential school experience, and the need for survivors to acknowledge those students who never returned home (be it physically, mentally, emotionally or spiritually). [48]

In September 2000, two and a half years after its creation, the Chair of the Foundation, George Erasmus, reported that the Foundation now had 'an established track record as a funding agency ... promot[ing] best practices of healing'. Its approach is to support small projects that rely on survivor and community participation from the outset rather than 'overly ambitions mega-projects designed outside the community'. The effect of this approach is that 'all across Canada, aboriginal people are seeking creative and innovative uses of both traditional and non-aboriginal healing methods to address the intergenerational impacts of Canada's residential school system. Our funded projects, through, the partnerships and linkages they foster serve to strengthen aboriginal people everywhere'. [49] Mr Erasmus reported that 276 projects had been approved, with a further 108 projects pending and a total of over $C53 million dollars committed. [50]

Grants from the Foundation may be for a few thousand dollars or more than $1 million and are applied to a wide range of initiatives. For example, the First Nation Women of Chisasibi of Quebec applied for a grant to implement their healing project for victims of physical and sexual abuse. Their funding application emphasised the importance of 'viewing oppression in an historical perspective' so as to enable the survivors to 'define the source of their affliction' without 'blaming another culture'. The project described itself as holistic and community based and 'tapping into the teachings of Elders using their traditional knowledge and wisdom regarding healing, culture and values' as well as encouraging western psychological therapeutic methods. The project has received a grant of a little over $C192 000.

The Beardy's and Okemasis First Nation project, 'Honouring our Residential School Survivors', is designed to determine the kind of abuse that ... occurred and the extent of the personal damage that resulted ... [t]he violation of aboriginal youth and their dignity will be documented and this information will be used to help people heal themselves and others' The project also aims to find ways to make their community ' a healthier and safe place for children to be nurtured' through awareness workshops, youth camps and retreats. The Foundation has approved funding of more than $C340 000 for this project.

The Benjamin Chee Chee Memorial Fund project received $C75 000 to develop a permanent national memorial on Parliament Hill, Ottawa to 'those aboriginal people who died, were abused, or suffered as a result of the residential school system in Canada'. The project organisers state that the purpose of the monument will be to create an historical record of the abuse suffered by indigenous children in residential schools, and thereby contribute to the healing of survivors and provide an important aspect of prevention and a form of healing to survivors.

The Nog-Da-Win-Da Min Family and Community Services project in Ontario sought funding to implement a 'sustainable culturally based Customary Care Program within our member First Nations' for children removed from their families. The project seeks to deal with 'the legacy of physical and sexual abuse in residential schools by addressing the aftermath of a system that created wounded spirits within our culture. Our parents, grand parents and children have survived an era that ultimately stripped them of their natural ability to parent their children that is reflective of our culture, beliefs, practices and values.' The Foundation has provided just under $C70 000 for this project.

Funding has gone to traditional aboriginal and western therapy programs (such as healing circles and psychiatrists), parenting workshops, adventure retreats, recording the experiences of residential school survivors, training for Indigenous counsellors and social workers, survivor data bases, study groups for children, commemorative canoe journeys, programs for prison inmates, programs for early detection and prevention of child abuse and the compilation of traditional 'good life' teachings.

ii) Restoring Dignity: the report of the Law Commission of Canada

In November 1997, in an initiative separate from the Gathering strength policy, the Canadian Justice Minister asked for independent legal advice from the Law Commission of Canada [51] on how Canadian governments could best address the harm caused by physical and sexual abuse of children in institutions operated, funded or sponsored by government. The Law Commission's report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions [52] was released in March 2000. It deals with historical child abuse that occurred in a variety of Canadian institutions, including residential schools for indigenous children.

The Law Commission states it was persuaded by the needs expressed by survivors to interpret its terms of reference broadly. It looked not only at physical and sexual abuse but other types of maltreatment such as neglect, and emotional, spiritual, psychological, racial and cultural abuse. To ignore or discount these other types of abuse would, in the Law Commission's view, take the problem of historical physical and sexual abuse of children in institutions out of the larger context in which it occurred.

In relation to the residential schools system, and in words wholly applicable in the Australian context, Restoring Dignity notes that 'aboriginal children suffered in a unique and seriously damaging way'. Their experience

must be singled out for particular study because their presence in residential schools was the result of a policy of assimilation sustained for several decades by the federal government, with the cooperation of many religious organisations. Deprived of their native languages, cultural traditions and religion, many aboriginal children in residential schools were cut off from their heritage and made to feel ashamed of it. As a result, the residential school system inflicted terrible damage not just on individuals but on families, entire communities and peoples. [53]

As in Bringing them home, the perspective of survivors was central to the Law Commission's inquiry and their needs and concerns were paramount in the assessment of remedial responses.

The Law Commission recognised that the needs of survivors:

are as diverse and unique as survivors themselves. Nevertheless, the Commission was able to identify certain recurring themes in the manner these needs were expressed. Survivors seek: an acknowledgment of the harm done and accountability for that harm; an apology; access to therapy and to education; financial compensation; some means of memorialising the experiences of children in institutions; and a commitment to raising public awareness of institutional child abuse and preventing its recurrence. [54]

The Law Commission assessed five types or redress:

  • Legal: criminal prosecutions and civil actions;
  • Compensatory: such as criminal injuries compensation and ex gratia payments;
  • Investigatory: such as public inquiries, Ombudsman's investigations, children's advocate interventions, and truth and reconciliation commissions;
  • Community and grassroots initiatives; and
  • Official redress programs, negotiated directly with survivors. [55]

The Law Commission concluded that no single approach fully meets all the needs of all survivors. The Commission argued for a diversity of responses, grounded in 'respect, engagement and informed choice'.

A 'redress program' is defined in the report as a program designed specifically to meet a wide range of needs, including financial compensation and non-monetary benefits. It does not involve legal proceedings but is always undertaken 'in the shadow of the formal justice system.' Financial compensation is the cornerstone of most redress programs, either as a lump sum or periodic payment, and although most programs have usually been limited to sexual and/or physical abuse cases, they may include cases involving emotional and psychological abuse.

Redress programs are considered less adversarial, quicker, and capable of meeting a wider range of needs. Typically they are based on government policy initiative that does not require legislation and can be as large or small, as comprehensive or limited as required by the circumstances of each program. Their underlying objective is to be more comprehensive and flexible, and less formal than existing legal processes.

Restoring Dignity suggests that redress programs are the most effective official response and, in tandem with community initiatives, have the greatest capacity to meet the broadest range of survivor needs. It recommends that governments should not attempt to monopolise redress processes, but should encourage and fund community initiatives.

In assessing these measures, the Law Commission also recognised that:

a process for providing redress should take into account the needs of survivors, their families and communities in a manner that is fair, fiscally responsible and acceptable to the public. [56]

Restoring Dignity is a comprehensive assessment of possible remedial responses. Its commentary and recommendations are a valuable resource for those grappling with similar issues in Australia.

New Zealand - Settlement of indigenous rights claims under the Treaty of Waitangi

In New Zealand, the Treaty of Waitangi sets the legal and political framework for the recognition of indigenous rights in New Zealand. This founding document, signed by Maori and the Crown in 1840, established British sovereignty and recognised the prior occupation and rights of Maori. Indigenous rights claims by Maori are made in the context of the Treaty (i.e. they are expressed as breaches of rights and obligations created by the Treaty, rather than abuses of human rights). However, in essence, these claims are based on international human/indigenous rights norms. They concern sovereignty, discrimination, cultural dispossession and the loss of land and resources, and relate to historical or contemporary events and policies.

In the early 1990s the New Zealand government began to implement a policy of negotiated settlement of Maori Treaty claims against the Crown. The starting point for the negotiation of a claim is the Crown's acknowledgment that the Maori grievance is well founded and that the Crown's past actions or policies failed to protect Maori land, resources and culture and thereby breached its obligations under the Treaty of Waitangi. In the past five years some of the major historical land claims have been settled. The terms of settlement provide for the return of land formerly held by the claimant tribe (usually only a small portion) and cash compensation. The settlement terms are implemented through acts of parliament and include the Crown's formal apology for past abuses and wrongful acts.

One of the first legislated settlements, the Waikato Raupatu Claims Settlement Act 1995, gave effect to the settlement of a claim concerning the 1863 invasion by government troops of land held by the Waikato-Tainui people and the subsequent confiscation of 1.2 million acres of the tribe's land. Redress provided by the Crown included financial compensation to the tribe and the return of land, to the value of $170 million, and an apology. The apology is recorded in the following terms:

The Crown expresses its profound regret and apologises unreservedly for the loss of lives because of the hostilities arising from its invasion and at the devastation of property and social life which resulted ....

The Crown acknowledges that the subsequent confiscations of land and resources ...were wrongful ... and have had a crippling effect on the welfare, economy and development of Waikato ...

Accordingly the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and ... to begin the process of healing and to enter into a new age of co-operation with ...Waikato.

The terms of this apology are unambiguous. They were not dictated by one party or the other, but were the product of negotiated agreement. Negotiation of the apology's wording would not have been possible without good faith and determination on both sides, and the process of reaching agreement became a concrete example of the new relationship the settlement legislation sought to establish.

South Africa

In October 1998, the South African Truth and Reconciliation Commission (TRC) published its five volume final report. The TRC's approach to reparation and rehabilitation policy is set out below:

The right of victims of human rights abuse to fair and adequate compensation is well established in international law. In the past three years, South Africa has signed a number of important international instruments, which place it under an obligation to provide victims of human rights abuse with fair and adequate compensation. The provisions of these instruments, together with the rulings of those bodies established to ensure compliance with them, indicate that it is not sufficient to award 'token' or nominal compensation to victims. The amount of reparation awarded must be sufficient to make a meaningful and substantial impact on their lives. In terms of United Nations Conventions, there is well established right of victims of human rights abuse to compensation for their losses and suffering. It is important that the reparation policy adopted by the government, based on recommendations made by the Commission is in accordance with South Africa's international obligations. The reparation awarded to victims must be significant. [57]

The report then provides an overview of international law and practice in relation to reparation and compensation. It notes the:

  • Universal Declaration of Human Rights (article 8);
  • International Covenant on Civil and Political Rights (article 3(a));
  • jurisprudence of the UN Human Rights Committee established under the Optional Protocol to the ICCPR;
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
  • jurisprudence of the UN Committee against Torture;
  • Inter-American Convention on Human Rights; and
  • jurisprudence of the Inter-American Court of Human Rights.

The report particularly notes the decision of the Inter-American Court of Human Rights in the Velasquez Rodriguez case, and observes:

If we are to transcend the past and build national unity and reconciliation, we must ensure that those whose rights have been violated are acknowledged through access to reparation and rehabilitation. While such measures can never bring back the dead, nor adequately compensate for pain and suffering, they can and must improve the quality of life of the victims of human rights violations and/or their dependants.[58]

Without adequate reparation and rehabilitation measures, there can be no healing and reconciliation, either at an individual or a community level. Comprehensive forms of reparation should also be implemented to restore the physical and mental well being of victims. [59]

The report of the TRC recommends a five-part approach to reparation, consisting of:

- Urgent interim reparation in the form of assistance to provide people in urgent need with access to appropriate services and facilities; - Individual reparation grants in the form of an individual financial grant scheme; - Symbolic reparation encompassing measures to facilitate the communal process of remembering and commemorating the pain and victories of the past (including among other measures, a national day of remembrance and reconciliation, erection of memorials and monuments, and the development of museums); - Community rehabilitation programs aimed at promoting the healing and recovery of individuals and communities affected by human rights violations; and - Institutional reform, including legal, administrative and institutional measures designed to prevent the recurrence of human rights abuses. [60]

The individual financial grants scheme is based on a benchmark figure of R21,700 per annum (or approximately $AUD6000 per annum). This equates to the median annual household income in South Africa in 1997. [61] This was decided as an appropriate amount to achieve the aims of the individual reparation grant, namely, to enable access to services and to assist in establishing a dignified way of life. [62] The TRC recommended that the annual reparation grant be paid in two payments per year. The report recommends that payments be made for a period of six years. [63]

The Reparation and Rehabilitation Committee of the TRC was guided by internationally accepted approaches to reparation and rehabilitation. The five aspects of reparation identified by the TRC are similar to those identified in Bringing them home. These five aspects are:

  • Redress: the right to fair and adequate compensation;
  • Restitution: the right to the re-establishment, as far as possible, of the situation that existed prior to the violation;
  • Rehabilitation: the right to the provision of medical and psychological care and fulfilment of significant personal and community needs;
  • Restoration of dignity: the right of the individual/community to a sense of worth; and
  • Reassurance of non-repetition: the strategies for the creation of legislative and administrative measures that contribute to the maintenance of a stable society and the prevention of the re-occurrence of human rights violations. [64]

Conclusion

This chapter has provided an overview of the principle of reparations in international law and examples from overseas jurisdictions in facing up to historical misdeeds which amount to gross violations of human rights. As I noted before the Senate Committee inquiry into the adequacy of the government's response to Bringing them home, perhaps the greatest flaw in the government's response to the report to date has been the failure to understand or acknowledge the human rights basis of the recommendations. The failure of the Commonwealth to acknowledge these principles runs contrary to a worldwide trend, and perpetuates a situation of injustice for those who continue to suffer the consequences of forcible removal policies.


1. The submission is available in full from the HREOC website at: https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice

2. Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions, Ottawa Canada 2000, p3. Also at http://www.lcc.gc.ca

3. Human Rights and Equal Opportunity Commission, Bringing them home, HREOC Sydney 1997, Terms of Reference (c).

4. Recommendation 3, ibid, p282.

5. See E/CN.4/Sub/1996/17. See also HREOC, ibid, appendix 8, p649.

6. UN Docs E/CN 4/Sub 2/1997/20 and E/CN.4/Sub 2/1997/20/Rev 1.

7. The Committee on the Elimination of Racial Discrimination adopted General recommendation 26 on the scope of Article 6 on 24 March 2000. The recommendation states that 'the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of ... (racial) discrimination ... is not necessarily secured solely by the punishment of the perpetrator of the discrimination; at the same time the courts and other competent authorities should consider awarding financial compensation for damage, material or moral, suffered by a victim where appropriate': Committee on the Elimination of Racial Discrimination, General Recommendation 26 - Article 6 of the Convention, 24 March 2000.

8. Artucio, A, 'Impunity of perpetrators' in Netherlands Institute of Human Rights, Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Maastricht, 11-15 March 1992 (SIM Special Report No 12, 1992) 182, p190.

9. Velasquez Rodriguez Case, Inter-American Court of Human Rights, Series C No 4, 29 July 1988, para 166. See further Mendez, J and Miguel Vivanco, J, 'Disappearances and the Inter-American Court: Reflections on a Litigation Experience' (1990) 13 Hamline Law Review 507; Mendez, J, 'Position of Americas Watch, a division of Human Rights Watch, on the right of victims of gross violations of human rights to reparations and on measures to prevent such violations' in Netherlands Institute of Human Rights, Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, op.cit.

10. Velasquez Rodriguez Case, ibid, para 174.

11. Inter-Am Ct H R 66, OAS/ser L/V/III.29, doc 4 (1993). See generally Padilla, D, 'Reparations in Aloeboetoe v. Suriname' (1995) 17 Human Rights Quarterly 541; Orentlicher, D, 'Addressing Gross Human Rights Abuses: Punishment and Victim Compensation', in Henkin, L and Hargrove, J (eds), Human Rights: An Agenda for the Next Century , American Society of International Law, Washington DC 1994, 425, at pp450-452.

12. Aloeboetoe, ibid, para 43.

13. Padilla, op.cit, p 552.

14. Aloeboetoe, ibid, paras 99-108.

15. ibid, para 116(6).

16. Neira Alegria Case (19 January 1995 - disappearance of prisoners following suppression of prison riot by Peruvian military); El Amparo Case (18 January 1995 - massacre of fishermen by Venezuelan military forces); cited in Ewing, A, 'Establishing State Responsibility for Private Acts of Violence Against Women Under the American Convention on Human Rights' (1995) 26 Columbia Human Rights Law Review 751, p792, fn 166.

17. This view was asserted by the federal government in its submission to the Senate Inquiry into the Stolen Generation. See Senator John Herron, Minister for Aboriginal and Torres Strait Island Affairs, Federal Government Submission to the Senate Legal and Constitutional Reference Committee, Inquiry into the Stolen Generation 2000 (hereafter Federal Government Submission, Senate Stolen Generation Inquiry), p 39

18. For the terms of references of the inquiry see: Hansard, Senate, 24 November 1999, pp 10493 - 10501. Also at http://www.aph.gov.au/senate/committee/ADVERT/ stolen/ htm

19. Minister for Aboriginal and Torres Strait Islander Affairs, Submission to the stolen generation inquiry, Commonwealth of Australia, Canberra March 2000, p2 (Herein Federal government submission).

20. ibid, p26.

21. ibid, p40.

22. Bringing them home, op cit, p287.

23. Federal Government Submission, p28

24. Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1998, HREOC Sydney 1999, pp 112 - 114.

25. Alter, S., May 1999, Law Commission of Canada.

26. ibid, p25.

27. Minow, M., Between Vengeance and Forgiveness - Facing History after Genocide and Mass Violence, Beacon Press, Boston, 1998, p 114-115 quoted in Alter, ibid, p25.

28. Lazare, A., 'Go Ahead, Say You're Sorry' Psychology Today 28:1 (Jan -Feb 1995) 40, p42, quoted in Alter, op.cit, p26.

29. Bringing them home, op.cit, p303.

30. Federal Government Submission, op cit, p48.

31. Graycar, R, 'Compensation for the Stolen Children: Political Judgments and Community Values' (1998) 4 (3)UNSW Law Journal Forum 24, p25.

32. (1982) 29 SASR 192.

33. (1982) 17 NTR 31.

34. Unreported, Northern Territory Supreme Court, 14 May 1996, per Kearney J.

35. See discussion in Repatriation Commission v O'Brien (1985) 155 CLR 422; East v Repatriation Commission (1987) 16 FCR 517 at 518-524.

36. Graycar, op cit p26.

37. ibid.

38. Cubillo v Commonwealth [2000] FCA 1084

39. Available online at: http://www.inac.gc.ca/strength/change.html. An update of the government's progress in implementing the plan is available at: http://www.inac.gc.ca/strength/pdf/index.html

40. Report of the Royal Commission on Aboriginal Peoples, 5 volumes, 1996, Ottawa. Available on-line at: www.inac.gc.ca/rcap/index.html . Also available on CD ROM with back-up studies: RCAP (1997) For Seven Generations, The Report of the Royal Commission on Aboriginal Peoples (1996) including Background Reports, Public Works and Government Services (Publishing), Ottawa.

41. For further information on these principles see RCAP, Volume 1: Looking forward, looking back, Chapter 16.

42. For a summary of government policy see Minister for Indian Affairs (Jane Stewart), Speech - Release of gathering Strength, 7 January 1998, http://www.inac.gc.ca/info/speeches/jan98/action.html.

43. A leader in the Northwest Rebellion who was hanged by the Canadian government.

44. http://www.inac.gc.ca/strength/declar.html

45. For background information on the residential school system see RCAP, Volume 1: Looking forward, looking back, Chapter 10, or background paper: http://www.inac.gc.ca/strength/school.html.

46. http://www.inac.gc.ca/strength/change.html.

47. See note 45 above.

48. For further information see the Foundation's website at http://www.afh.ca

49. Message from AHF Chair, Healing Words, vol 2 no1, Fall 2000, p 2, online at http://webserver.ahf.ca/english/NEWSLETTER_SEPT_2000.pdf.

50. ibid.

51. The Law Commission is similar in function to the Australian Law Reform Commission.

52. Available online at http://lcc.gc.ca.

53. Executive summary, see http://www.lcc.gc.ca/en/forum/ica2000/html/execsum.html

54. ibid. Note also the findings of the following consultant report prepared for the Law Commission: Alter, S., Apologising for serious wrongdoing: Social, Psychological and legal considerations, Law Commission of Canada, May 1999. The report identifies the following five elements of a meaningful apology: i) Acknowledgment of the wrong done; ii) accepting responsibility for the wrong done; iii) expression of sincere regret and profound remorse; iv) assurance that the wrong will not recur; and v) reparation through concrete measures. See also: Gannage, M., An international perspective: A review and analysis of approaches to addressing past institutional or systemic abuse in selected countries, Law Commission of Canada, 1998.

55. ibid, pp115-346.

56. ibid.

57. Truth and Reconciliation Commission, Final report, Volume V, Chapter 5, para 11.

58. ibid, para 19.

59. Ibid, para 21.

60. ibid, paras 23-32.

61. The maximum individual reparation grant claimable is R23 023 per annum for an individual living in a rural area with nine or more dependants.

62. Truth and Reconciliation Commission, Final report, Volume V, Chapter 5, para 69.

63. ibid, para 74.

64. ibid, para 37.