This article has been published in Vol 6 No 1 Australian Journal of Human Rights, pp. 188–217 (2000) and is reproduced with the permission of the editors of the AJHR.Google Scholar

1. The Canadian government estimates that approximately 100,000 children attended the residential schools over the years in which they were in operation: Department of Indian Affairs and Northern Development, “Backgrounder: The Residential Schools System,” September 1998 <http://www.inac.gc.ca/strength/school.html> accessed 2 Aug 1999.+accessed+2+Aug+1999.>Google Scholar

2. Milloy, John, A National Crime: The Canadian Government and the Residential Schools System 1879 to 1986, Manitoba, University of Manitoba Press, 1999, p. 296. Public discussion of sexual abuse in Indian residential schools commenced in 1990 when Manitoba First Nations Chief, Phil Fontaine, spoke of the abuse he suffered as a child in one of the schools: Miller, J. R., Shingwauk's Vision: A History of Native Residential Schools University of Toronto Press Inc, Toronto 1996, p. 328.Google Scholar

3. Lavarch, Michael, “Terms of reference” in Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and their Families (hereafter “Bringing Them Home“), 1997 (front matter).Google Scholar

4. Ibid. p. 19, 21. The Inquiry also took oral and written evidence from indigenous organisations, representatives of governments, churches and other nongovernment agencies, former mission and government employees.Google Scholar

5. The third term of reference required an examination of “the principles relevant to determining the justification for compensation for persons or communities affected by such separation,” ibid. Google Scholar

6. Ibid., recommendations 5a, b, 6, 15–20.Google Scholar

7. The Motion of Reconciliation passed by the Commonwealth Parliament on 26 August 1999 is discussed below.Google Scholar

8. “Government unveils response to stolen children report” AAP Newsfeed, December 16, 1997.Google Scholar

9. The proportion of residential schools operated by each of the four churches remained constant throughout the period: 55% were run by the Roman Catholic church, 26% by the Anglican church, 16% United Church and 3% by the Presbyterians: Milloy, above n. 2, Appendix.Google Scholar

10. Report of the Royal Commission on Aboriginal Peoples (hereafter RCAP Report), (1996) vol. 1 (hereafter RCAP Report), Vol. 1 Ch. 10 p. 373.Google Scholar

11. Ibid., pp. 353–65.Google Scholar

12. Ibid., pp. 341, 353–74.Google Scholar

13. Ibid., Ch. 10 passim. Google Scholar

14. In 1937 a national conference attended by chief protectors of Aborigines from all the Australian States (except Tasmania) and the Northern Territory adopted resolutions that committed all governments to take measures, including education, to bring about the ultimate absorption of native people into the non-indigenous population: cited in Bringing Them Home, above n. 3, 32.Google Scholar

15. In 1997 John Watson, the highest ranking federal Indian Affairs official in British Columbia, reportedly made a statement that he described as “the first time that the federal government has acknowledged that the purpose of residential schools was one of assimilation”: “Ottawa Vows Action on Native School,” Vancouver Sun June 27, 1997 (byline Stewart Bell).Google Scholar

16. The Royal Commission noted that department and churches alike understood the central importance of language as the key to cultural assimilation. It cites a government directive of 1890 that “the use of English in preference to the Indian dialect must be insisted upon”: RCAP Report above n. 10, p. 341.Google Scholar

17. Ibid., pp. 340–2. The most frequent cause of punishments for children in residential schools was speaking their native languages: Agnes Grant, No End of Grief: Indian Residential Schools in Canada Pemmican Publications Inc, Winnipeg, Manitoba, 1996, p. 189.Google Scholar

18. Ibid., p. 365.Google Scholar

19. Ibid., 270–5.Google Scholar

20. See eg. Chrisjohn, R. & Young, S., The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada, Theytus Books, Penticton, BC, Canada 1997, pp. 41–48 and other works cited at p. 125, n. 76. The authors report that the term “genocide” came up briefly a number of times at the Royal Commission hearings but the Commissioners treated the remarks as a “rhetorical flourish”: ibid., p. 125, n. 76.Google Scholar

21. RCAP Report, above n. 10, p. 381.Google Scholar

22. “Fed: Canada listens; Australia deaf on Aborigines” AAP Newsfeed January 8, 1998. Mr Dodson was commenting on the apology by the Canadian government to the aboriginal peoples of Canada.Google Scholar

23. RCAP Report, above n. 10, pp. 376–80.Google Scholar

24. Ibid., p. 379. For further references dealing with the effects of the abuses, see ibid., note 316. For similar observations regarding inter-generational effects in the Australian context, see Bringing Them Home, above n. 3, pp. 222–8.Google Scholar

25. RCAP Report, ibid. Recommendation 1.10.1. It also recommended that Canada establish a national repository of records related to residential schools and provide funding for research and public education programs on the history and effects of residential schools: Recommendation 1.10.3.Google Scholar

26. “Natives to get forum: Stories of abuse to be told,” The Toronto Star, October 8, 1998.Google Scholar

27. The existing colonial legislation was confirmed by the new Dominion, and in 1876 a new Indian Act was enacted which consolidated the existing legislation: E. Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada, University of British Columbia Press, Vancouver 1986, p. 5.Google Scholar

28. This was true also of the United States: Getches, David, Wilkinson, Charles and Williams, Robert, Cases and Materials on Federal Indian Law (3^rd edition), West Publishing Co, St Paul, Minn, 1993, p. 208.Google Scholar

29. Armitage, Andrew. Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand UBC Press, Vancouver, 1995, p. 187–8; RCAP Report Vol. 1, p. 188-9.Google Scholar

30. Ibid. Google Scholar

31. The notion that human cultures could be classified along an evolutionary spectrum from lower to higher, and that the more “primitive” cultures could not survive in competition with the more “advanced.” Social Darwinism was based upon a misapplication of Darwin's theory of natural selection, using his idea of the evolutionary mechanism of “survival of the fittest” to exonerate the colonial powers’ destruction of indigenous cultures.Google Scholar

32. “[The] influence of the wigwam was stronger than the influence of the school”: Sir John A Macdonald Papers, Vol. 91, “Report on Industrial Schools for Indians and Half-Breeds” (The Davin Report), 14 March 1879, p. 1 (quoted in Milloy, above n. 2, p. 24.Google Scholar

33. The Davin Report, 35428-45, quoted in RCAP Report, above n. 10, p. 339. Milloy points out while Davin's report was the genesis of the industrial schools, residential schools were already operating in Canada and elsewhere in the British dominions: Milloy, above n. 2, pp. 8–9.Google Scholar

34. RCAP Report ibid., p. 342.Google Scholar

35. Titley, , above n. 27, p. 76.Google Scholar

36. RCAP Report above n. 10, pp. 341–3.Google Scholar

37. Ibid., p. 343.Google Scholar

38. Ibid., pp. 353, 335, 186.Google Scholar

39. Ibid., p. 335.Google Scholar

40. Ibid., p. 351.Google Scholar

41. Some of the treaties made between Indians and the Canadian Government in the western interior in the 1870's included, at the insistence of the Indians, a promise that the Government would schools, although it appears that day schools on reserves were what the Indians expected: Miller, Shingwauk's Vision above n. 2, p. 96–100.Google Scholar

42. Miller, J. R., Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, (Toronto, University of Toronto Press, 1989, p. 107.Google Scholar

43. Titley, , above n. 27, p 15.Google Scholar

44. B (WR) v Plint (1998) 161 DLR (4^th) 538 at 548, where Brenner J. notes that the requirements of ss 115(1) and 117 of the Indian Act (SC 1951, ch 29) have been in the Indian Act since 1894.Google Scholar

45. Molloy, above n. 2, p. 70, referring to Regulations Relating to the Education of Indian Children, 1894.Google Scholar

46. Titley, above n. 27 p. 90: Indian Act ch. 50, s. 10 as amended, 1920.Google Scholar

47. Indian Act S C 1951, ss 115, 116 and 118.Google Scholar

48. Titley, above n. 17, p. 92.Google Scholar

49. RCAP report, above n. 10, p. 397, note 157. The Family Allowance was introduced in 1945 by the federal government as a monthly income support payment to parents: Milloy, above n. 2, p. 205.Google Scholar

50. Milloy, above n. 2, p. 154–5.Google Scholar

51. RCAP Report, above n. 10, pp. 348–9. It appears that by the late nineteenth century, a large proportion of the students attending residential schools had lost one or both parents: Jean L Manore, book review, Canadian Historical Review No. 1, Vol. 79 p. 131.Google Scholar

52. Milloy, above n. 2, pp. 30–1. For details of the methods used to discourage family visits, see Grant, above n. 17, pp. 153–5.Google Scholar

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54. See eg. RCAP Report, above n. 10, p. 183; see above n. 33 for reference to Davin's “circle of civilized conditions;” cf indigenous and non-indigenous uses of “circle” imagery discussed in Chrisjohn & Young, The Circle Game, above n. 20, pp. 115–6.Google Scholar

55. RCAP Report, ibid., p. 388–9, note 15. See government estimate of 100,000 (above n. 1), but others put the figure higher; eg. report that an estimated 105,000 former inmates of the schools are still alive: “Native Claims Worth Millions,” The Lawyers Weekly, vol. 18, No. 38, February 19, 1999.Google Scholar

56. Armitage, above n. 29, p. 108; Miller, Shingwauk's Vision above n. 2, p. 424. The residential schools were distributed unevenly across the country, being concentrated in British Columbia, Alberta, Saskatchewan and Manitoba: Armitage p. 108.Google Scholar

57. Ibid. Google Scholar

58. RCAP Report, above n. 10, p. 389, note 157.Google Scholar

59. Ibid., p. 346.Google Scholar

60. Ibid., p. 347.Google Scholar

61. Ibid., pp. 348–9.Google Scholar

62. Ibid., p. 350–1.Google Scholar

63. The Circle Game, above n. 20, pp 1–2.Google Scholar

64. Ibid. Google Scholar

65. Ibid., pp. 3–4.Google Scholar

66. A lengthy list of works was considered by the Royal Commission: RCAP Report above n. 10, fn. 276.Google Scholar

67. For an example of the way that the churches and government each tried to shift responsibility to the other, see the arguments put by counsel for the United Church and the Canadian government by way of defence to actions in tort brought against the Church by former students of the Port Alberni residential school in British Columbia. The Church joined the federal government as a third party: B (WR) v Plint (1998) 161 DLR (4^th), 538.Google Scholar

68. RCAP Report, above n. 10, pp. 373–4.Google Scholar

69. Ibid., fn. 1.Google Scholar

70. Ibid., p. 367.Google Scholar

71. Ibid., p. 364.Google Scholar

72. Ibid., pp. 368–74.Google Scholar

73. W. Graham, 1 September 1924, quoted ibid., p. 370.Google Scholar

74. Ibid., pp. 353–65; Milloy above n. 2, pp. 109–27.Google Scholar

75. RCAP Report, above n. 10, p. 354.Google Scholar

76. Ibid., p. 356.Google Scholar

77. “Cowardice Keeps United Church from Apologizing” The Toronto Star August 24, 1997 (byline Linda Goyette); “Canada's Indigenous Tribes Receive Formal Apology,” The New York Times, January 8, 1998 (byline Anthony DePalma).Google Scholar

78. “Why It's Time for Ottawa to Apologize” Commentary July 8, 1997 (byline Ross Howard).Google Scholar

79. News Release by the United Church of Canada, Oct 27, 1998.Google Scholar

80. “Natives Sue for $1.7B. Ottawa, Anglican Church Accused of Trying to Destroy Culture at Brantford School,” The London Free Press, October 28, 1998 (byline: Julie Carl).Google Scholar

81. The Honourable Jane Stewart, Statement of Reconciliation, January 7, 1998, Ottawa, Ont.Google Scholar

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83. Press Release from Office of the Prime Minister, Transcript of the Prime Minister the Hon. John Howard MP Motion of Reconciliation, 26 August 1999 <http://www.pm.gov.au/media/pressrel/1999/reconciliation2608.htm> (accessed 6 Sept 1999).+(accessed+6+Sept+1999).>Google Scholar

84. Ibid., para (f).Google Scholar

85. Ibid., page 3.Google Scholar

86. “Government Unveils Response to Stolen Children Report” AAP Newsfeed December 16, 1997 (byline: Louise Brannelly). In its Bringing Them Home report, the HREOC agreed that the events should be judged in the light of the values and standards that applied at the time: above n. 3, p. 249. The Commission devoted a chapter of its report to demonstrating that many aspects of the policies and practices breached the common law of the day as well as violating customary international law and conventions to which Australia was a party: Ch 13.Google Scholar

87. “Howard Says Common Sense Prevents Him Apologizing” AAP Newsfeed October 15, 1998.Google Scholar

88. Ibid.; “Government to Respond to Stolen Children Report Today” AAP Newsfeed, December 16, 1997.Google Scholar

89. “PM Defends Refusal to Apologise to Stolen Generation,” AAP Newfeed, January 27, 1998.Google Scholar

90. “Pressure Mounts Over Abuse Cases,” June 10, 1998 (byline Laura Eggleston).Google Scholar

91. “Native Claims Worth Millions,” The Lawyers Weekly, Vol. 18 No. 38, February 19, 1999.Google Scholar

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93. Compare with the hardline response of the Commonwealth Government in the conduct of its defence to actions brought against it in the Darwin Registry of the Federal Court by Cubillo and Gunner and others: see Robert Manne, “The Sacrifice of Truth,” The Age 22 March 1999. The Government has spent $3.5 million defending the case in preliminary hearings and the Minister estimates that final cost to of the Government's defence at $6 million: “Story of the Stolen Generation Goes to America,” The Age 7 August 1999 (byline Caroline Milburn). The plaintiffs are relying on the services of lawyers acting pro bono publico. Google Scholar

94. “Residential Schools Devastated Indian Society, Lawsuit Claims,” The Toronto Star June 23, 1998.Google Scholar

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96. See eg., “Residential Schools ‘Worthwhile Institutions’ When our Media Blindfold Themselves, We Get Travesties Like the Apology for Indian Schools” Western Report February 2 1998. The author argues that the Royal Commission erred in taking at face value many claims of sexual abuse.Google Scholar

97. See eg., “Lawyers Swoop To Cash In On Native Claims” The Globe and Mail July 10, 1999 (byline Erin Anderson).Google Scholar

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99. (1992) 96 DLR (4^th) 389 at 312 per La Forest J.Google Scholar

100. Ibid., per La Forest J at p. 314 (Gonthier, Cory and Iacobucci JJ concurring).Google Scholar

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102. Oates, R. K., above n. 98, p. 187. The suggestion of beneficial effects was made by Kinsey, A. et al, Sexual Behaviour in the Human Female, Philadelphia, Saunders, 1953.Google Scholar

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107. (1992) 96 DLR (4^th) 289.Google Scholar

108. Ibid., at pp. 306 and 314 per La Forest J (Gonthier, Cory, Iacobucci and L'Heureux-Dube JJ concurring). McLachlin and Sopinka JJ disagreed that there should be a presumption as to when the discovery occurred.Google Scholar

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110. In S v G [1995] 3 NZLR 681 the New Zealand Court of Appeal unanimously followed the Canadian decision in M (H) v M (K) in applying the discoverability principle to a negligence suit arising out of sexual abuse. For a full discussion of the provisions of the State and Territory limitation provisions as they relate to child sexual assaults, see Marfording, above n. 98; Tony Buti, “Removal of Indigenous Children from their Families: The Litigation Path” (1998) 27 Western Australian Law Review 203.Google Scholar

111. In Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 the NSW Court of Appeal by a majority extended the limitation period for common law actions brought against the NSW government by an Aboriginal woman who had been removed from her mother as a baby. An application for extension of the limitation period is yet to be ruled upon by the Federal Court in Cubillo & Gunner v Commonwealth of Australia. Google Scholar

112. Some homeowners’ policies include general tort coverage for the homeowner which, while they exclude coverage for criminal charges, can cover the homeowner for negligence.Google Scholar

113. Unreported, Supreme Court of Canada, June 17 1999 (1999 Can Sup Ct. LEXIS 35).Google Scholar

114. Unreported, Supreme Court of Canada, June 17 1999 (1999 Can Sup Ct LEXIS 34).Google Scholar

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121. Ibid., paras 16–25.Google Scholar

122. Ibid., paras 57–8.Google Scholar

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135. Ibid., para [140].Google Scholar

136. Ibid., para [163] and [169].Google Scholar

137. Ibid., paras [171]-[173].Google Scholar

138. Ibid., para [174].Google Scholar

139. Above n. 29, p. 185–90.Google Scholar

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141. See eg., “Canada Listens: Australia Deaf on Aborigines,” AAP Newsfeed January 8, 1998 (byline Denis Peters); “PM Defends Refusal to Apologise to Stolen Generation,” AAP Newsfeed January 27, 1998.Google Scholar

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146. Ibid., p. 215.Google Scholar

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148. The Australian Labor Party has said it will apologize to the Stolen Generation if it wins government: “Beazley Blames Government for Stolen Generations Suits,” AAP Newsfeed, May 13, 1999.Google Scholar

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