Why Did It Take So Long for Indian Residential School Claims to Come to Court? The Excruciatingly Gradual Civilization of Canada's Legal System

42 Pages Posted: 28 Sep 2016 Last revised: 7 May 2017

Date Written: May 6, 2017

Abstract

Why did it take so long before civil lawsuits went to court for Indian Residential Schools in Canada? This paper notes that in 1857 Canada enacted a law for the "gradual civilization" of Indians. The paper questions who needed to be gradually civilized? This paper traces the major developments (gradual civilization) in Canadian law from the Second World War until the early 1990s that collectively made it possible for civil lawsuits for Indian Residential School claims to come to court. Some of the changes are directly relevant to the circumstances of racial discrimination and indigenous rights, but other changes may surprise some readers, such as Crown liability, limitation periods, class actions and more. The paper discusses briefly some of the most important indigenous rights cases and explains just how limited these "victories" were. The paper also notes that there is still a lot more civilization needed within the Canadian legal system. Hopefully, Canada's civilization will not be so gradual over the next 50 years.

Keywords: Indian Residential Schools, Canada, gradual civilization, indigenous, Aboriginal, law, native studies, education, human rights

Suggested Citation

McMahon, Thomas, Why Did It Take So Long for Indian Residential School Claims to Come to Court? The Excruciatingly Gradual Civilization of Canada's Legal System (May 6, 2017). Available at SSRN: https://ssrn.com/abstract=2844543 or http://dx.doi.org/10.2139/ssrn.2844543

Thomas McMahon (Contact Author)

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