Transitional Justice 2.0 – How a Canadian Compromise Perpetuates Colonial Effects
Drawing on the Canadian truth and reconciliation commission experience, Selen Kazan (TU Dortmund University) questions the impact transitional justice can have in challenging the status quo and the persistence of (neo)colonial dynamics in consolidated democracies.
The Indian Residential School Settlement Agreement (IRSSA) and its related Truth and Reconciliation Commission (TRC) for Indigenous Peoples were redress measures for the Indian Residential Schools (IRS) in Canada, the intergenerational trauma, and the consequences it has caused. The Canadian example is special because the redress means were not used in a transitional society but to address and recognize historical abuses born out of the settler-colonial context. Canada’s justice path included many transitional justice mechanisms such as reparations, a TRC, commemorations, and apologies. However, Canada’s experience shows us that adapting these transitional justice tools to a non-transitional context entails a danger of prolonging the status quo. Thus, it is critical to evaluate whether we can speak of a transitional justice model 2.0 that works for consolidated democracies.
Canada’s non-transitional situation
The Canadian efforts to reckon with its colonial past can be traced to grassroots activism by Indigenous Peoples and Survivors of the IRS. The IRS were part of a broader scheme to solve the ‘Indian problem’ by ‘civilizing’ First Nations in Canada and assimilating Indigenous children, some as young as three, into the Euro-Christian settler society. These IRS were boarding schools jointly organized and operated by various churches and the Canadian government from the 1880s into the 1990s and which effectively resulted in the removal of children from their families.
The IRS policy was the epitome of a Canadian Apartheid regime that treated Indigenous Peoples as less than second-class human beings. Many of the leaders, teachers, parents, and grandparents of Indigenous communities are either IRS Survivors or second-/third-generation Survivors. The effects of the schools are ongoing and resulted in inter-generational trauma. The schools did not only harm Indigenous languages, spirituality, and beliefs but affected many adult Survivors their whole lives socially, economically, and psychologically. The ideology of the IRS is deeply rooted in the colonial mindset that formed the nation-state Canada. Chrisjohn and Young view the IRS system and other policies aimed at marginalizing Indigenous Peoples as a schemed attempt with genocidal intent, covered up to not violate the established British criminal law. Cree Scholar Tamara Starblanket also states that policies aimed at stripping off the Indigenous identity remove any discernible political distinction from a people through forced assimilation. Establishing the Canadian state required the dismantlement of pre-existing Indigenous Nationhoods. The colonial system the IRS was rooted in persists to this day through the Indian Act, which continues to impose the genocidal structures and the ongoing removal of Indigenous children into today’s child-welfare system.
Restorative, Retributive, Indigenous Justice
In Canada, court proceedings preceded the TRC but many Survivors also demanded a TRC and reparations, resulting in a bottom-up approach favouring a holistic, indigenous methodology. Changes in Canadian law in the 1990s created the opportunity for Survivors to make use of class-action-lawsuits. Several class-action lawsuits were filed that were later merged into a single one in each of the nine jurisdictions in which they had been originally filed. This class-action was referred to as the Fontaine v. Canada (Attorney General). The judicial proceedings, however, were too lengthy and left many Survivors re-traumatized or demotivated some to even participate.
Therefore, the IRSSA came about, not through a presidential decree or international intervention, but rather through a settlement of several civil and criminal lawsuits that did not manage to address the variety of abuses that took place in the IRS. These lawsuits were limited to criminalized acts, such as physical or sexual abuse, and also by statutes of limitations. The larger context in which these abuses occurred was merely used to gather evidence but not to create a bigger picture of colonialism, assimilation culture, and lack of reconciliation. The loss of culture, the breakage of family lines, loss of language, and lacking a sense of belonging can also be deemed as harms, though not (yet) prosecutable, which Indigenous Peoples wanted to see addressed. Furthermore, the sheer magnitude of the cases – more than 12,000 legal claims – would take an endless time to be settled through the courts.
The IRSSA and its five components – individual and collective reparations, TRC, funding for commemoration and healing projects – tried to address the various harms caused by the schools. Apologies by the government and the church entities that were involved in the organization of the schools even preceded the TRC that operated from 2008 till 2015.
While many aspects of the IRSSA were indigenous-led, the restorative component of each step impeded the truth process to some degree. For example, the powers vested in the mandate of the TRC were a contested issue. Judicial powers, such as naming names and subpoenas, for the TRC could have ensured some accountability, given the possibility that former IRS staff might not collaborate with the TRC – which happened in the case of several priests, some still living in exile. However, the government, the catholic church, and Survivors’ organizations were not in favour of a legalistic mandate. The government and the catholic church opposed it because it could have legally incriminated them further and would have increased the monetary compensations. Survivors demanded a TRC because they did not want to be exposed to another ordeal of adversarial litigation. Most people were more interested in building relationships for the future.
But while all stakeholders were in favour or restorative justice, they had differing motivations. The issue of how truth and reconciliation were understood was not merely a semantic and legal debate but one opposing Indigenous and non-Indigenous worldviews. Indigenous worldview focuses more on the interconnectedness of the elements and spirit world. This worldview is embedded in the Aboriginal concept of reconciliation that entails ceremonies, rituals, something intangible and unmeasurable but rather a felt experience that, when reconciliation is there, is known to Indigenous Peoples. The relations need to be (re-) balanced because of the connections of all things and peoples. Their understanding of reconciliation has always existed and touches upon several aspects. Their understanding of reconciliation is not limited to only the residential school experience, which is seen as a symptom rather than a root cause.
Transitional Justice and its Dangers for Consolidated Democracies
Using transitional justice in consolidated democracies carries the danger of engaging in symbolic actions and performative reconciliation which serves to sooth Canadians more than Indigenous Peoples. This does not mean however that they cannot achieve some progress. On the contrary, when settler-colonial states aim to achieve lasting transformation they hold a lot of decolonizing power. In these scenarios, what follows after the TRC is sometimes even more important than the TRC itself.
Although the Survivor groups favoured the restorative elements of the TRC’s mandate, it did complicate things. For example, the TRC was highly victim-centred and based on voluntary participation by Survivors, government and Church officials. Through this and the lack of legal powers, the TRC created its own obstacles without realizing it initially. Coming before the TRC, where Survivors and perpetrators face each other, on the model of the South African TRC, was not envisioned. There were also constant battles over the interpretation of what counted as a vital document: if the Commission wanted to include additional archival documents in the historical record, it had to search for them at the Library and Archives Canada, even though it was Canada’s responsibility to provide documents. The reoccurring problem of document production brought the TRC to court in five isolated instances over document collection issues.
By hoping that truth-sharing would change views, the success of the TRC and its mandate relied on settler’s and perpetrator’s recognition of their mistakes. However, this inclusivism does not contest the prevalent power relations. It could be argued that the mandate thus made the TRC too weak, not sufficiently neutral, and legally positivist, fitting the western worldview of right and wrong. Thus, the TRC process did not start with open-ended research questions but was a forum for “student experience and trauma that cast heterogeneous experience into a single, predetermined historical narrative.”
Nonetheless, the TRC’s mandate was victim-centred in its approach, which was a small act of revolution as it reverses the IRS’s detrimental pedagogy of destroying indigenous truth with settler ways. Giving voice to Indigenous peoples, educating about Canada’s colonialism, and having a victim-centred TRC overturns the IRS ideology. For example, the national events held by the TRC were a form of continuous transformation because they claimed back the correct narrative of Indigenous empowerment. This transformation is made possible when the Survivors and their communities talk, and the dominant society sits and listens. The symbolic nature of the transitional justice efforts also has a positive side because it reverses the pedagogy that the ‘Indian in the child’ must be killed by attempting to eradicate everything that forms a child’s Indigenous identity.
Transitional Justice 2.0
Although Canada chose and still is on a restorative justice path, the dangers of remaining simply symbolic are palpable. The problem with redress and usage of standard transitional justice methods in non-transitional societies is that they tend to be conceded by the enduring influence of the unjust system they confront. Apologies, reparations, TRCs, and other means, even if initially chosen by the Survivors, lose their authenticity and can solidify the status quo if the regime remains in a settler-colonial context. For Canada to succeed and be an example for other democracies, it needs to realize that there is no corrupt artificial past and a now human rights abiding present; on the contrary, by construing it this way, it legitimizes the undue social order and releases the current general public from any sort of continued sense of responsibility.
Focusing only on individualized harm comes at the expense of a systemic focus on sovereignty and land dispossessions. Indeed, the structural critique of the TRC was stressed in the summary of the final report 2015 by placing the IRS system in the context of Canada’s disregard for Indigenous sovereignties and cultures. It is noteworthy that the approach of the TRC itself, which focused more on the Survivors’ voices and national events, differed from the TRC’s final report and Calls to Action, which did highlight the systemic changes that need to be done to keep the promises made. While there is an improvement in the societal evaluation of reconciliation progress, the implementation of the final report’s 94 Calls to Action are only slowly taking place and merely symbolic recommendations have been implemented. Canada’s restorative path should avoid being too event-specific, focusing only on the IRS and more on the origins, effects of colonialism, and power relations it has created and continues to sustain, resulting in a systemic decolonization effort.
Selen Kazan is a Ph.D. student and research associate at the Graduate School of Political Cohesion at the TU Dortmund University. Her research deals with Transitional Justice and how it is recently used in consolidated democracies to address colonial wrongs. For her dissertation, she is focusing on the Canadian Truth and Reconciliation Commission and whether it had a reconciliatory impact. For this, she was a visiting researcher for one year at the University of Toronto’s Faculty of Law, where she conducted several interviews with stakeholders, scholars, Indigenous organizations, and Survivors.