Righting Past Wrongs Through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuses

Abstract

The Agreement in Principle (AIP) towards a Fair and Lasting Solution of the Legacy of Indian Residential Schools (2005) provides a non-judicial settlement process for Indian Residential School (IRS) abuse victims. The AIP is commendable and many survivors will likely seek compensation through that process. However, the AIP does not eliminate the possibility of some IRS survivors pursuing tort claims. Also, the AIP does not cover Aboriginal survivors of historical abuses outside the IRS system. This paper emphasizes the need for a flexible and contextualized approach to tort claims by Aboriginal survivors of institutional and historical abuses. Application of seemingly neutral principles de-contextualizes the claims, limits the scope of inquiry, and ultimately results in depressed damage awards for claimants. A link is established between the legacies of colonization, racism and assimilation policies, claimants’ victimization and the current socio-economic marginalization of Aboriginal people to justify the need for contextual approaches in responding to these claims. The paper argues that the ways in which defendants and courts use the limitation defence, establish the scope of inquiry, and construct plaintiffs’ ‘original position’ in determining the consequences of actionable wrongs are problematic. Consequently, construction of these factors could potentially exclude court-based processes as a realistic redress option for many survivors. The paper argues that claims must be assessed against the backdrop of therapeutic jurisprudence as a way enhancing tangible and intangible benefits for claimants. To be a meaningful option, the tort system must be flexible and contextual, giving due consideration to the historical factors and processes that have produced many of these claims. Law, in particular, the redress process, should play a meaningful role in the decolonization of Aboriginal people.