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Looking Forward, Looking Back: The Canadian Truth and Reconciliation Commission and the Mackenzie Valley Pipeline Inquiry

Published online by Cambridge University Press:  02 January 2013

Kim Stanton
Kim Stanton
Affiliation:
Stanton Legal, c/o 4 Devonshire Place, Toronto, Ontario M5S 2E1,[email protected]
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Abstract

When we talk about truth and reconciliation commissions, we are accustomed to speaking of “transitional justice” mechanisms used in emerging democracies addressing histories of grave injustices. Public inquiries are usually the state response to past injustice in the Canadian context. The Canadian Truth and Reconciliation Commission (TRC) is the result of a legal settlement agreement involving the government, representatives of indigenous peoples who attended residential schools for a period lasting more than a century, and the churches that operated those schools. Residential schools have been addressed in a series of public inquiries in Canada, culminating in the TRC. I argue that some of Canada's previous public inquiries, particularly with respect to indigenous issues, have strongly resembled truth commissions, yet this is the first time that an established democracy has called a body investigating past human-rights violations a “truth commission.” This article considers some of the reasons for seeking a truth commission in an established democracy and looks to a previous public inquiry led by Thomas Berger, the Mackenzie Valley Pipeline Inquiry, for some useful strategies for the TRC as it pursues its mandate. In particular, I suggest that a commission can perform a social function by using its process to educate the broader public about the issue before it.

Résumé

Lorsque nous abordons le sujet des commissions de vérité et de réconciliation, nous avons l'habitude de parler de mécanismes de « justice transitoire » utilisés dans des démocraties émergentes concernant des antécédents de graves injustices. Les enquêtes publiques constituent généralement une réponse gouvernementale à des injustices passées qui ont eu lieu au Canada. La Commission canadienne de vérité et de réconciliation (CVR) est le résultat d'un accord juridique de règlement entre le gouvernement, des représentants des Autochtones qui ont fréquenté des pensionnats pendant plus de 100 ans, et les églises qui ont dirigé ces pensionnats. On s'est penché sur les problèmes liés à ces derniers en effectuant toute une série d'enquêtes publiques au Canada, pour aboutir à la CVR. Je soutiens que certaines des enquêtes publiques canadiennes, particulièrement celles concernant les questions autochtones, ressemblaient fortement à des commissions de vérité, c'est cependant la première fois qu'une démocratie établie a appelé « commission de vérité » un organisme enquêtant sur des violations passées des droits de la personne. Cet article étudie certaines des raisons expliquant le fait de demander une commission de vérité dans une démocratie établie, et examine une précédente enquête publique dirigée par Thomas Berger, l'Enquête concernant le pipeline de la vallée du Mackenzie, afin de trouver des stratégies utiles à la CVR dans la poursuite de son mandat. J'avance, en particulier, qu'une commission peut assurer une fonction sociale en utilisant ce processus pour informer le public en général au sujet de cette question de manière directe.

Keywords

Canadian Truth and Reconciliation CommissionMackenzie Valley Pipeline Inquirycommissions of inquiryIndian Residential SchoolsCommission canadienne de vérité et de réconciliationEnquête concernant le pipeline de la vallée du Mackenziecommissions d'enquêtepensionnats indiens
Type
Truth, Reconciliation and Residential Schools
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 27 , Issue 1 , April 2012 , pp. 81 - 99
Copyright
Copyright © Canadian Law and Society Association 2012

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References

1 See Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies (2004), UN Doc. S/2004/616, 27. Truth commissions are one mechanism used by societies reckoning with mass human-rights violations in their past and generally come under the rubric of “transitional justice.” Other transitional justice mechanisms include war-crimes tribunals, reparations, and commemoration. For a thorough discussion of truth commissions see Hayner, Priscilla B., Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd ed. (New York: Routledge, 2011)Google Scholar. For a general introduction to the field of transitional justice see Teitel, Ruti G., Transitional Justice (New York: Oxford University Press, 2000)Google Scholar. See also Kritz, Neil J., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vols. 1–4 (Washington, DC: US Institute for Peace Press, 1995)Google Scholar; de Brito, Alexandra Barahona, Gonzalez-Enriquez, Carmen, and Aguilar, Paloma, eds., The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford: Oxford University Press, 2001)Google Scholar; and Roht-Arriaza, Naomi and Mariezcurrena, Javier, Transitional Justice in the Twenty-first Century: Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar.

2 Commissions of inquiry are a familiar instrument to Canadians; hundreds of such inquiries have been held in Canada on a remarkably wide-ranging number of topics, with almost as widely varying degrees of success. For a useful discussion of the subject see Manson, Allan and Mullan, David J., eds., Commissions of Inquiry: Praise or Reappraise? (Toronto: Irwin Law, 2003)Google Scholar. For additional background see D'Ombrain, Nicholas, “Public Inquiries in Canada,” Canadian Public Administration 40 (1997), 86CrossRefGoogle Scholar; Pross, A. Paul, Christie, I.M., and Yogis, John, eds., Commissions of Inquiry (Toronto: Carswell, 1990)Google Scholar. The title of this article is a reference to the Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol. 1 (Ottawa: Supply and Services Canada, 1996) [RCAP Report, vol. 1]Google Scholar. RCAP was tasked with reviewing the history, health, education, self-government aspirations, land claims, treaties, economies, cultures, living conditions, language, spirituality, relationship with the justice system, and general situation of indigenous people in Canada. The five-volume, 3,500-page RCAP Report covers 500 years of history between non-indigenous and indigenous peoples in what is now Canada. The commissioners make 440 recommendations, calling for comprehensive changes in the relationship between Canada's indigenous and non-indigenous peoples. While RCAP was by far the most comprehensive of inquiries related to Aboriginal peoples, there have been many others over the years, including the Marshall Inquiry, created in response to the wrongful conviction of a Mi'kmaq man for murder in 1971 (Royal Commission on the Donald Marshall, Jr., Prosecution), http://www.gov.ns.ca/just/marshalLinquiry/default.asp; the Public Inquiry into the Administration of Justice and Aboriginal People: Hamilton, A.C. and Sinclair, Murray, Commissioners, Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg: Province of Manitoba, 1991)Google Scholar [Manitoba Aboriginal Justice Inquiry Report] (note that Justice Sinclair is now the chair of the TRC); the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild, which addressed the Saskatoon police practice of dropping off young indigenous men on the outskirts of the city in the middle of winter and leaving them to freeze to death: Report of the Commission of Inquiry into the Death of Neil Stonechild (October 2004), http://www.justice.gov.sk.ca/stonechild/; and the Ipperwash Inquiry, which investigated the death of Dudley George, shot by Ontario Provincial Police while participating in a protest by indigenous people with respect to a land dispute: Linden, Stanley, Commissioner, Report of the Ipperwash Inquiry, (Ontario: Attorney General, 2007) http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/Google Scholar.

3 The Indian Residential Schools Settlement Agreement (“Settlement Agreement”) was concluded on May 8, 2006, following an Agreement in Principle (AIP) signed on November 23, 2005. Schedule N of the Settlement Agreement, “Mandate for the Truth and Reconciliation Commission” (Schedule E of the AIP), sets out the terms of a truth commission, which forms part of the settlement.

4 Settlement Agreement, Schedule N, s. 2(b).

5 Ontario Law Reform Commission, Report on Public Inquiries (Toronto: Ontario Law Reform Commission, 1992), 187Google Scholar, citing Le Dain, Gerald, “The Role of the Public Inquiry in our Constitutional System,” in Law and Social Change, ed. Ziegel, Jacob S. (Toronto: Osgoode Hall Law School, York University, 1973), 79Google Scholar. Le Dain's reflections flowed from his role as chair of the Royal Commission on the Non-medicinal Use of Drugs, a few years prior to the Mackenzie Valley Pipeline Inquiry.

6 As a litigator, Berger had gained a reputation as an Aboriginal rights advocate, first with R v Bob and White (1965), 52 DLR (2d) 481 (SCC), a landmark treaty hunting rights case, and then with Colder v British Columbia (A-G), [1973] SCR 313, the most significant Supreme Court of Canada case on Aboriginal title to that point in the century.

7 Berger, Thomas R., Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry (Ottawa: Minister of Supply and Services Canada, 1977) [Berger Report]Google Scholar.

8 British Columbia, “Thomas R. Berger,” Order of British Columbia Biography (Government of British Columbia Protocol and Events Branch, 2004)Google Scholar.

9 Jull, Peter, “‘Nations with Whom We Are Connected’ — Indigenous Peoples and Canada's Political System,” Australian Indigenous Law Reporter 6, 2(2001), 13Google Scholar.

10 Hamilton, John David, Arctic Revolution: Social Change in the Northwest Territories, 1935–1994 (Toronto: Dundurn Press, 1994), 193Google Scholar.

11 Popowich, Morris, “The National Energy Board as Intermediary between the Crown, Aboriginal Peoples, and Industry,” Alberta Law Review 44 (2007)Google Scholar, para. 50. Of course, the Berger Inquiry also had its critics. With respect to the report's principal recommendations, while most indigenous groups were pleased, some Métis were concerned that the call for a moratorium on pipeline construction would decrease their bargaining power for settling land claims, as the pressure would be decreased: CBC, “Jubilant Natives Praise Berger's Report,” Our Native Land (14 May 1977), http://archives.cbc.ca/politics/rights_freedoms/clips/1554/Google Scholar. Two books were published in the aftermath of the inquiry that were heavily critical of Berger and his inquiry: Peacock, Donald, People, Peregrines and Arctic Pipelines: The Critical Battle to Build Canada's Northern Gas Pipelines (Vancouver: J.J. Douglas, 1977)Google Scholar, and Gray, Earle, Super Pipe: The Arctic Pipeline, World's Greatest Fiasco? (Toronto: Griffin House, 1979)Google Scholar. Both were authored by people associated with the pipeline companies, and, indeed, pipeline applicant Alberta Gas Trunk Lines funded the writing and publication of Peacock's book (see Peacock, ix). Gray was the former head of public affairs for the other applicant. Their two books prompted Trent University professor Robert Page to write Northern Development: The Canadian Dilemma (Toronto: McClelland & Stewart, 1986)Google Scholar. Page participated in both the Berger Inquiry and the National Energy Board hearings on the pipeline; he suggests that Berger was a scapegoat for the critics when the pipeline applications did not proceed. Although the National Energy Board reached similar conclusions to Berger, it was Berger alone who was attacked in the books (Page, xi).

12 For a detailed discussion of how a truth commission is a specialized form of public inquiry, see Stanton, Kim, “Truth Commissions and Public Inquiries: Addressing Historical Injustices in Established Democracies” (PhD diss., University of Toronto, 2010), https://tspace.library.utoronto.ca/handle/1807/24886Google Scholar.

13 The concept of social accountability is discussed by Roach, Kent, “Canadian Public Inquiries and Accountability,” in Accountability for Criminal Justice: Selected Essays, ed. Stenning, Philip C. (Toronto: University of Toronto Press, 1995), 269Google Scholar.

14 I acknowledge that the term “land claims” is problematic, in that it suggests that indigenous peoples must seek title to their territory from the “rightful” owner (the Crown), whereas from an indigenous perspective it is the Crown who is making the land claim. As Frank Calder has stated, “This is our land. We don't have to go and thank The Queen for giving us this land. This is our land.” “Frank Calder and Thomas Berger: A Conversation,” in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, ed. Foster, Hamar, Webber, Jeremy H.A., and Raven, Heather, (Vancouver: UBC Press, 2007), 40Google Scholar.

15 That is, they applied to have the Land Titles Registry protect their interest in the land over which they asserted Aboriginal title by preventing any instruments from being registered upon it until their assertion of rights was settled. The caveat would forbid the transfer of any of the lands until the matter was addressed. Lands in the area that were already subject to fee simple title were excepted.

16 Re Paulette and Registrar of Titles (No. 2) (1973), 42 DLR (3d) 8 (NWTSC) at 39–40.

17 Tort law is accustomed to addressing claims of physical or sexual abuse, but claims for cultural harm, loss of language, and intergenerational harm as a result of IRS have not met with an easy reception in Canadian courts. See Assembly of First Nations, Report on Canada's Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools (Assembly of First Nations, November 2004), and Llewellyn, Jennifer J., “Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR, and Restorative Justice,” University of Toronto Law Journal 52 (2002), 253CrossRefGoogle Scholar.

18 Berger Report, vol. 2, 223ff.

19 Ibid., 224.

20 See Stanton, “Truth Commissions and Public Inquiries.”

21 Settlement Agreement, Schedule N, s. 1.

22 For an in-depth consideration of this assertion see Stanton, “Truth Commissions and Public Inquiries.”

23 Examples of such bodies designed to address past injustices include the Commission of Inquiry for the Assessment of History and Consequences of the SED [Socialist Unity Party] Dictatorship in Germany, in operation from 1992–1994; the Independent Commission on Policing for Northern Ireland, arising from the April 1998 “Good Friday Agreement”; and the Australian National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. While it is true that these bodies were not called “truth commissions,” they nonetheless represent attempts by the respective states to address significant past human-rights violations in an attempt to bring about some resolution and prevent future occurrences.

24 For a discussion of the challenges arising from this circumstance, see Stanton, Kim, “Canada's Truth and Reconciliation Commission: Settling the Past?” International Indigenous Policy Journal 2, 3 (2011): art. 2, http://ir.lib.uwo.ca/iipj/vol2/iss3/2CrossRefGoogle Scholar. See also Castellano, Marlene B., Archibald, Linda, and DeGagné, Mike, eds., From Truth to Reconciliation: Transforming the Legacy of Residential Schools (Ottawa: Aboriginal Healing Foundation, 2008)Google Scholar.

25 This perception may be compounded by such statements as the one made by Prime Minister Stephen Harper at the G20 meeting in Pittsburgh on September 25, 2009: “‘We are one of the most stable regimes in history.… We are unique in that regard,” he added, noting Canada had enjoyed more than 150 years of untroubled Parliamentary democracy.… ‘We also have no history of colonialism.’” Reuters, “Every G20 Nation Wants to Be Canada, Insists PM,” September 25, 2009, http://www.reuters.com/article/2009/09/26/columns-us-g20-canada-advantages-idUSTRE58P05Z20090926. This comment suggests that more than a year after he gave the IRS apology, the prime minister failed to acknowledge the larger picture with respect to the government policy under which the IRS system operated.

26 “The Truth about Reconciliation,” National Post, October 27, 2008.

27 Jull, “Nations with Whom We Are Connected,” 7.

28 See Ruling on Application Made by Notice of Application Dated October 2, 2007, by Commissioner Frank Iacobucci (6 November 2007), Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin, in response to an application by the named individuals, Amnesty International, the British Columbia Civil Liberties Association, International Civil Liberties Monitoring Group, Canadian Arab Federation, Canadian Counsel for American Islamic Relations, Canadian Muslim Civil Liberties Association, and Human Rights Watch.

29 Thomas Berger, interview by author, Vancouver, BC, December 18, 2007.

30 Ian Waddell, interview by author, Vancouver, BC, December 18, 2008; Diana Crosbie, telephone conversation with author, November 24, 2009. Waddell was special counsel to Berger; Crosbie was the Berger Inquiry's chief information officer.

31 For example, the Harper government refused to honour the Kelowna Accord, a $5.1-billion program for indigenous health, education, and housing negotiated in 2005, and ignored a House of Commons vote requiring the government to fulfil its obligations under this accord. See Canadian Press, “Tories to Avoid Parliament's Kelowna Accord Vote” (22 March 2007), http://www.ctv.ca/CTVNews/QPeriod/20070321/kelowna_vote_070321/. The Harper government also reversed Canada's position and refused to endorse the United Nations Declaration on the Rights of Indigenous Peoples (though it did finally sign in late 2010, with little fanfare). The UN General Assembly adopted the declaration by a vote of 143 to 4 on September 13, 2007: UN General Assembly, “General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major Step Forward’ towards Human Rights for All, Says President” (news release, September 13, 2007), UN Doc. GA/10612. Although the apology was given by the Harper government, it may have been more open to making the apology at that time because it was leading a minority Parliament: see Curry, Bill and Laghi, Brian, “Mounting Sense of Urgency Was Apology's Catalyst,” Globe and Mail, June 13, 2008, A4Google Scholar.

32 Judd Buchanan (Minister, Department of Indian Affairs and Northern Development), letter to Thomas Berger, 18 October 1974 (UBC Special Collections, Thomas Berger Fonds—Mackenzie Valley Pipeline Inquiry subject files, box 18–5 Correspondence with the Department of Indian Affairs and Northern Development, file#l 1974–1975 [folder 1 of 2]), 4.

33 Justice Harry LaForme of the Ontario Court of Appeal, a member of the Mississaugas of New Credit First Nation, was appointed as the TRC's first chair in June 2008, along with two co-commissioners: Claudette Dumont-Smith, a member of the Algonquin First Nation, and Jane Brewin Morley, a British Columbia lawyer. LaForme resigned on October 20, 2008, citing strife between himself and his two co-commissioners, who themselves resigned effective June 2009 to clear the way for a new panel. Justice Murray Sinclair of the Manitoba Court of Queen's Bench was appointed chair in June 2009, along with co-commissioners Marie Wilson, a non-indigenous journalist married to former Northwest Territories premier and IRS survivor Stephen Kakfwi, and Wilton Littlechild, a lawyer, former Conservative politician, Assembly of First Nations regional chief, and IRS survivor.

34 Berger, Thomas, “Commissions of Inquiry and Public Policy” (address to the School of Public Administration, Carleton University, Ottawa, March 1, 1978Google Scholar; UBC Special Collections, Thomas Berger Fonds—Mackenzie Valley Pipeline Inquiry subfiles, boxes 19–2, 71–9), 18.

35 I acknowledge here that the very idea of reconciliation through the TRC is rejected by some scholars. See, e.g., Chrisjohn, Roland and Wasacase, Tanya, “Half-Truths and Whole Lies: Rhetoric in the ‘Apology’ and the Truth and Reconciliation Commission,” in From Truth to Reconciliation: Response, Responsibility and Renewal—Canada's Truth and Reconciliation Journey, ed. Younging, Gregory, Dewar, Jonathan, and DeGagné, Michael (Ottawa: Aboriginal Healing Foundation, 2009), 217Google Scholar. For that matter, there are those who view Canada and its legal mechanisms as illegitimate: see, e.g., Alfred, Taiaiake, “Restitution Is the Real Pathway to Justice for Indigenous Peoples,” in From Truth to Reconciliation, 184Google Scholar. Non-indigenous views expressing scepticism about the TRC include Kevin Libin, “Chairman's Exit Leaves Panel in Disarray,” National Post, October 28, 2008, quoting Tom Flanagan, the University of Calgary political science professor who was an architect of Stephen Harper's 2004 and 2006 election campaigns, as saying that the TRC is “mostly ‘political theatre’”; Clifton, R.A., “Residential Schools: Another View,” National Post, May 31, 2008, A25Google Scholar.

36 See Aboriginal Affairs and Northern Development Canada, “Statistics: Implementation of the Indian Residential Schools Settlement Agreement,” http://www.aadnc-aandc.gc.ca/eng/1315320539682, which shows that 102,405 people applied for the Common Experience Payment as of the September 19, 2011, application deadline.

37 RCAP Report, part 2: “False Assumptions and a Failed Relationship,” c. 10, “Residential Schools,” text accompanying notes 330–32, 335.

38 O'Malley, Martin, The Past and Future Land: An Account of the Berger Inquiry into the Mackenzie Valley Pipeline (Toronto: P. Martin, 1976), 13Google Scholar.

39 Kymlicka, Will and Bashir, Bashir, eds., The Politics of Reconciliation in Multicultural Societies (Oxford: Oxford University Press, 2008), 15Google Scholar, observe that “for some commentators, nation-building is the cause of historical injustice towards indigenous peoples, not the solution to it. It was precisely in the name of building modern unitary nations that injustices were committed against indigenous peoples, stripping them of their lands, cultures, and self-governing institutions.” See also Regan, Paulette, “Debunking Canada's Peacemaker Myth,” in Unsettling the Settler Within: Indian Residential Schools, Truth Telling and Reconciliation in Canada (Vancouver: UBC Press, 2010), 83ffGoogle Scholar.

40 Berger Report, vol. 1, Letter to the Minister of Indian Affairs and Northern Development Warren Allmand from the Commissioner, Justice Thomas R. Berger, April 15, 1977.

41 Canadian Bill of Rights, SC 1960, c 44.

42 “Statements to the Mackenzie Valley Pipeline Inquiry,” in The Dene Nation: Colony Within, ed. Watkins, Mel and University League for Social Reform (Toronto: University of Toronto Press, 1977), 6–7Google Scholar. These sentiments began to be reported in the southern media for the first time with testimony such as Blake's before the Berger Inquiry.

43 O'Malley, , The Past and Future Land, 223Google Scholar.

44 Berger Report, vol. 1, 90–92.

45 RCAP Report, vol. 1, c. 10.

46 Miller, J.R., Shingwauk's Vision: A History of Native Residential Schools (Toronto: University of Toronto Press, 1996), 434Google Scholar.

47 Berger, Thomas, “The Constitution, the Charter and the Idea of Canada—From a Canadian Perspective” (address to the Canadian Bar Association, Vancouver, BC, March 24, 1984)Google Scholar, UBC Special Collections, Thomas Berger Fonds—Speeches 1977–1984, box 71–2 Canadian Bar Association—Address, meeting March 24, 1984 [folder 1 of 2], Berger Address to Provincial Council, BC Branch, CBA, Vancouver, March 24, 1984), 1.