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TRUTH, RECONCILIATION AND INDIGENOUS PEOPLES
Colleen Sheppard, Faculty of Law, McGill University
Winter 2013
This course grew out of a Fall 2011 student-initiated seminar under the leadership of Jessica
Labranche-Hamelin, Eden Alexander and Cassandra Porter (with the collaboration of Charlotte
Burns). I am indebted to them for many of the readings included in this semester’s seminar and
for all that they taught me in that course.
A. COURSE OBJECTIVES
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


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To become knowledgeable about the history and ongoing legacy of Indian
residential schools in Canada;
To understand the role of law in redressing the harms caused by residential
schools;
To understand different approaches to, and conceptions of reconciliation through
a comparative lens;
To assess what reconciliation means in the context of Indigenous peoples in
Canada and globally and what obligations it imposes on both Indigenous and
non-Indigenous peoples;
To identify ongoing harms affecting Aboriginal peoples in Canada in relation to
concerns for reconciliation.
B. COURSE OUTLINE
1.
2.
3.
4.
Introductory Class
History of Indian Residential Schools in Canada
Legal Responses to the Harms of Residential Schools
Conceptions of Reconciliation and the Truth and Reconciliation Commission of
Canada
5. Justice, Healing and Indigenous Approaches
6. Conceptions of Reconciliation - Philosophical and Comparative Insights
7. Indigenous Peoples: Global Solidarity and Comparative Developments regarding
Truth and Reconciliation
8. Constitutionalism, Aboriginal Rights and Reconciliation
9. Poverty in Indigenous Communities: Economic and Social Rights
10. Child Protection and Education
11. Criminal Justice
12. Conclusion
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Please note that the Truth and Reconciliation Commission will be holding a National
Event in Montreal on April 24-27, 2013
http://www.trc.ca/websites/trcinstitution/index.php?p=92
C. EVALUATION
Written Paper: 75 per cent
Students are expected to write a paper of approximately 7,000 -8,000 words (25–30
pages, double spaced, font times roman 12). Please note that the word length may be
extended to up to 10 per cent for papers submitted in French. Papers are due on April
23rd (one day before the general paper deadline, to ensure student availability to attend
the TRC National Event) and should be submitted electronically to the Student Affairs
Office at: SAOassignments.law@mcgill.ca. A hard copy of the paper should also be left
at SAO on April 23rd.
Paper topics should be related to the themes of the course, focusing on Indigenous
Peoples and comparative approaches to reconciliation, governance and current issues
related to poverty, land, child protection, education policy, or criminal justice issues.
Seminar Participation: 25 per cent
The seminar participation grade will be based on active engagement in the course and
attendance; acting as a resource person for one of the course readings; and a short
group-based oral presentation on the theme related to your paper.
McGill University values academic integrity. Therefore all students must understand the meaning and
consequences of cheating, plagiarism and other academic offences under the Code of Student Conduct and
Disciplinary Procedures (see www.mcgill.ca/integrity for more information)}
In accordance with McGill University’s Charter of Students’ Rights, students have the right to submit
any written work that is to be graded in English or in French.
D. COURSE MATERIALS
All of the readings for the course are available through the weblinks provided in the
Course Readings and Schedule document, or posted on MyCourses McGill.
E. OFFICE HOURS
New Chancellor Day Hall, 3644 Peel Street, Room 604; Wednesdays 15h00-17h00 or by
appointment;; colleen.sheppard@mcgill.ca; 514 398-5098
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January 11th:
INTRODUCTORY CLASS
*Muffins for Granny: http://www.youtube.com/watch?v=H6ziYYLL4Dw
http://catalogue.mcgill.ca/F/JHQIRGTN27V8GC1NQFV5LDTR8URBE8XB5D42LQ6J
KGTTL62SNF-15524?func=find-acc&acc_sequence=035993072 (88 minutes)
http://idlenomore.com/
Interview with Chief Theresa Spence, on hunger strike
http://www.youtube.com/watch?v=2UQ4vMoeD2s
Supplementary Audiovisual: Whale Rider:
http://www.youtube.com/watch?v=gNmyq4SNqGo
January 18th:
HISTORY OF INDIAN RESIDENTIAL SCHOOLS IN CANADA
Please read at least one of the following three historical accounts:
John S. Milloy, A National Crime – The Canadian Government and the Residential Schools
System 1879-1986 (Winnipeg, University of Manitoba Press, 1999) (available as ebook
through MUSE) (Parts 1 & 2)
http://site.ebrary.com/lib/mcgill/docDetail.action?docID=10215304
Canada, Aboriginal Peoples and Residential Schools: They Came for the Children
http://www.attendancemarketing.com/~attmk/TRC_jd/ResSchoolHistory_2012_02_2
4_Webposting.pdf
Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian
Institutions, 2000, 21-67 (Posted on MyCourses)
Supplementary Readings:
Antaki, Mark and Coel Kirkby, “The Lethality of the Canadian State’s (Re)cognition of
Indigenous Peoples” in Austin Sarat and Jennifer L. Culbert eds. (Posted on
MyCourses)
Royal Commission on Aboriginal Peoples (RCAP), Volume I, Part II, Looking Forward
– Looking Back, False Assumptions and a Failed Relationship, Chapter 9, The Indian
Act http://caid.ca/RRCAP1.9.pdf
January 25th:
LEGAL RESPONSES TO THE HARMS OF RESIDENTIAL SCHOOLS
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Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian
Institutions, Executive Summary, 2000
http://www.attorneygeneral.jus.gov.on.ca/inquiries/cornwall/en/hearings/exhibits/
Peter_Jaffe/pdf/Restoring_Dignity.pdf
*Phil Fontaine’s Shocking Testimony of Sexual Abuse, CBC Archives Interview
http://www.cbc.ca/archives/categories/politics/parties-leaders/phil-fontaine-nativediplomat-and-dealmaker/shocking-testimony-of-sexual-abuse.html
Garnett Angeconeb with Kateri Akiwenzie-Damm, “Speaking my Truth – The Journey
to Reconciliation”in From Truth to Reconciliation: Transforming the Legacy of Residential
Schools by Marlene Brant Castellano, Linda Archibald and Mike DeGagné, eds.
(Ottawa: Aboriginal Healing Foundation, 2008): 297-314
http://www.ahf.ca/downloads/from-truth-to-reconciliation-transforming-the-legacyof-residential-schools.pdf
Indian Residential Schools, Key Milestones
http://www.aadnc-aandc.gc.ca/eng/1332939430258/1332939552554
Prime Minister Stephen Harper, Apology to Former Students of Indian Residential
Schools, 11 June 2008, http://www.pm.gc.ca/eng/media.asp?id2149
http://www.youtube.com/watch?v=qo5cG-RjE8Y
IRS Settlement Agreement and the Truth and Reconciliation Commission of Canada
INAC, “Backgrounder - Indian Residential Schools Settlement Agreement” online:
http://www.ainc-inac.gc.ca/ai/rqpi/nwz/2008/20080425b_is-eng.asp
Supplementary Readings:
Blackwater v. Plint, [2005] 3 S.C.R. 3
http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/2239/index.do?r=AAAAAQAKQmxhY2t3YXRlcgAAAAAB
Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian
Institutions, 2000, Part II (Responses)
Additional Resource: Where are the Children?
http://www.wherearethechildren.ca/en/blackboard/
David, MacDonald & Graham Hudson, “The Genocide Question and Indian Residential
Schools in Canada” http://www.cpsa-acsp.ca/papers-2011/MacDonald.Hudson.pdf
February 1st:
CONCEPTIONS OF RECONCILIATION AND THE TRUTH AND
RECONCILIATION COMMISSION OF CANADA
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*Murray Sinclair, TRC Chair, University of Manitoba Address
http://www.youtube.com/watch?v=HuFc_Z9F-NA
Jennifer Llewellyn, “Bridging the Gap between Truth and Reconciliation: Restorative
Justice and the Indian Residential Schools Truth and Reconciliation Commission.” in
From Truth to Reconciliation: Transforming the Legacy of Residential Schools by Marlene
Brant Castellano, Linda Archibald and Mike DeGagné, eds. (Ottawa: Aboriginal
Healing Foundation, 2008):183-201 http://www.ahf.ca/downloads/from-truth-toreconciliation-transforming-the-legacy-of-residential-schools.pdf
Marlene Brant Castellano, “A Holistic Approach to Reconciliation: Insights from
Research of the Aboriginal Healing Foundation,”in From Truth to Reconciliation:
Transforming the Legacy of Residential Schools by Marlene Brant Castellano, Linda
Archibald and Mike DeGagné, eds. (Ottawa: Aboriginal Healing Foundation, 2008):
383-400 http://www.ahf.ca/downloads/from-truth-to-reconciliation-transformingthe-legacy-of-residential-schools.pdf
Gerald Taiaiake Alfred, “Restitution is the Real Pathway to Justice for Indigenous
Peoples”179-190 http://chrr.info/files/AHF_reconciliation_paper.pdf in Gregory
Younging, Jonathan Dewar and Mike DeGagné eds., Response, Responsibility and
Renewal: Canada’s Truth and Reconciliation Journey (Ottawa: Aboriginal Healing
Foundation: 2009) http://www.ahf.ca/downloads/trc2.pdf
February 8th:
JUSTICE, HEALING AND INDIGENOUS APPROACHES
Bria Huculak, “Respecting Community” in Wanda McCaslin (ed) Justice as
Healing: Indigenous Ways (Saskatoon: Living Justice Press, 2005):161-166
Gloria Lee, “Defining Traditional Healing” in Wanda McCaslin (ed) Justice as Healing:
Indigenous Ways (Saskatoon: Living Justice Press, 2005):98-107
Supplementary Readings:
Linda Alcoff, The Problem of Speaking for Others
http://alcoff.com/content/speaothers.html
Linda Alcoff, “Survivor Discourse: Transgression or Recuperation”
http://alcoff.com/content/speaothers.html
February 15th:
CONCEPTIONS OF RECONCILIATION: PHILOSOPHICAL AND
COMPARATIVE INSIGHTS
Bronwyn Anne Leebaw, “The Irreconcilable Goals of Transitional Justice” (2008) 30:1
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Human Rights Quarterly 95-118
Elazar Barkan, “Historical reconciliation: redress, rights and politics” (2006) 60 J. of Int.
Affairs 1–15.
Stewart Motha, “Reconciliation as Domination” in Scott Veitch, Law and the Politics of
Reconciliation (Aldershot: Ashgate Publishing, 2007): 69-92
Matt James, “Uncomfortable Comparisons: The Canadian Truth and Reconciliation
Commission in International Context” (2010) 23 The Ethics Forum (La Revue du
CREUM) 23-35 http://www.creum.umontreal.ca/IMG/pdf_02_James.pdf
Kirsten Anker, “Symptoms of Sovereignty: Apologies, Indigenous Rights and
Reconciliation in Australia and Canada” in Peer Zumbansen and Ruth Buchanen
eds., Law in Transition: Human Rights, Development and Transitional Justice (Oxford:
Hart Publishing, 2010)
https://afsc.org/story/maine-launches-historic-truth-and-reconciliation-process
Supplementary Readings:
Kevin Avruch and Beatriz Vejarano, “Truth and Reconciliation Commissions: A Review
Essay and Annotated Bibliography” OJPCR: The Online Journal of Peace and Conflict
Resolution 4.2: 37-76 (2002) ISSN: 1522-211X | www.trinstitute.org/ojpcr/4_2recon.pdf
http://humiliationstudies.org/documents/AvruchTRC.pdf
February 18th:
12:30 – 2:00 p.m., Moot Court – Make up Class
Professor Val Napoleon, Law Foundation Professor of Aboriginal Justice and
Governance, Faculty of Law, University of Victoria, “Indigenous Law in the World—
Research, Pedagogy, and Application”
Val Napoleon, “Thinking About Indigenous Legal Orders,” Research Paper for the
National Centre for First Nations Governance, June, 2007.
February 22nd:
INDIGENOUS PEOPLES: GLOBAL SOLIDARITY, COMPARATIVE
DEVELOPMENTS, TRUTH AND RECONCILIATION
Declaration on the Rights of Indigenous Peoples
http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx
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Karen Engle, “On Fragile Architecture: The UN Declaration on the Rights of Indigenous
Peoples in the Context of Human Rights” (2011) 22 European J. of International Law 141163 http://ejil.oxfordjournals.org/content/22/1/141
Steven T. Newcomb, “The UN Declaration on the Rights of Indigenous Peoples and the
Paradigm of Domination” (2011) 20 Griffith L. Rev. 578
*Kenneth Deer, youtube speech on International developments
http://www.youtube.com/watch?v=tAfFff-CG0g
March 1st:
CONSTITUTIONALISM, ABORIGINAL RIGHTS AND RECONCILIATION
James (S·kÈj) Youngblood Henderson, “Postcolonial Indigenous Legal Consciousness,”
(2002) Indigenous L.J. 1 – 56
Kent McNeil, “Reconciliation and the Supreme Court: The Opposing Views of Chief
Justices Lamer and McLachlin” (2003) 2 Indigenous LJ 1-26.
Mark Walters, “The Jurisprudence of Reconciliation: Aboriginal Rights in Canada"
in Will Kymlicka & Bashir Bashir eds., The Politics of Reconciliation in Multicultural
Societies (Oxford: Oxford University Press, 2008):165-191
John Borrows, “Crown and Aboriginal Occupations of Land: A History and
Comparison,” Research paper commissioned by the Ipperwash Inquiry, Oct. 15, 2005,
35-37 (Oka and Kanesatake), 46-47 (Clayoquot Sound), 55-85 (Analysis and Clayoquot
Sound Case Study)
Supplemental Readings:
James Tully, “Chapter 7: The negotiation of reconciliation” in Public Philosophy in a
New Key: Volume II: Democracy and Civic Freedom (Cambridge: Cambridge U Press,
2008): 223-256
Carole Blackburn, “Producing Legitimacy: Reconciliation and the Negotiation of
Aboriginal Rights in Canada” (2007) 13 J of the Royal Anthropological Ins. 621-638
March 15th:
POVERTY IN INDIGENOUS COMMUNITIES: ECONOMIC AND SOCIAL
RIGHTS
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Canada/Attawapiskat First Nation: statement by the UN Special Rapporteur on
indigenous peoples, James Anaya
http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11743&L
angID=E
Marcia Langton & Odette Mazel, “Poverty in the Midst of Plenty: Aboriginal People, the
“Resource Curse” and Australia's Mining Boom” (2008) 26 Journal of Energy & Natural
Resources Law, Vol. 26, Issue 1 http://web.ebscohost.com/ehost/detail?sid=c77173da223d-4e83-b346f777c626ffa0%40sessionmgr11&vid=2&hid=23&bdata=#db=lft&AN=502611912
David R. Boyd, “No taps, no toilets: First Nations and the constitutional right to water in
Canada” (2011 57 McGill L. J. 81 http://lawjournal.mcgill.ca/issues.php
March 22nd
Class cancelled – Research & Writing Week
Global Conference on Human Rights, Democracy and the Fragility of
Freedom http://efchr.mcgill.ca/2013/eng/home.php
March 29th:
No Class – Good Friday
April 5th:
CHILD PROTECTION AND EDUCATION POLICY
Cindy Blackstock, “Residential Schools: Did They Really Close or Just Morph into Child
Welfare?” (2007) 6 Indigenous Law Journal 71
First Nations Caring Society – I am witness http://www.fncaringsociety.ca/i-amwitness See timeline and legal documents and decisions:
http://www.fncaringsociety.ca/i-am-witness-timeline-and-documents
The Sixties Scoop Class Action lawsuit:
http://www.kleinlyons.com/class/aboriginal-sixties-scoop/Aborginal-Sixties-ScoopNotice-Civil-Claim.pdf
*We are deeply sorry,
http://www.cbc.ca/archives/categories/society/education/a-lost-heritage-canadasresidential-schools/we-are-deeply-sorry.html
April 12th:
CRIMINAL JUSTICE (CLASS MOVED TO ROOM 203 – 8:30 – 11:30)
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Patricia Monture-OKanee and Mary Ellen Turpel, “Aboriginal Justice, Aboriginal
Peoples and Canadian Criminal Law: Rethinking Justice” (1992) 29 UBC L Rev 241-277
Gray, Barbara and Pat Lauderdale, “The Great Circle of Justice: North American
Indigenous Justice and Contemporary Restoration Programs.” Contemporary
Justice Review, Vol. 10, No. 2, June 2007, pp. 215-225
Kent Roach and Jonathan Rudin, “Gladue: the Judicial and Political Reception of
a Promising Decision.” (2000) 42:3 Canadian Journal of Criminology 355-388.
The Honorable Wally T. Oppal, Forsaken: The Report of the Missing Women Inquiry
http://www.ubcic.bc.ca/files/ForsakenReport.pdf
Bria Huculak, “Respecting Community” in Wanda McCaslin (ed) Justice as
Healing: Indigenous Ways (Saskatoon: Living Justice Press, 2005):161-166
Supplementary Readings:
James W. Zion, “Punishment versus Healing: How Does Traditional Indian Law
Work?” in Wanda McCaslin, ed., Justice as Healing: Indigenous Ways (Saskatoon: Living
Justice Press, 2005): 68-72.
Report on the Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide:
A Report on Aboriginal People and Criminal Justice In Canada (excerpts)
Barry Stuart and Kay Pranis, “Peacemaking Circles: Reflections on Principal
Features and Primary Outcomes,” in Dennis Sullivan and Larry Tifft, eds., Handbook
of Restorative Justice (New York: Routledge, 2006): 121-133.
April 16th:
STUDENT REPORTS OF RESEARCH FINDINGS
***
[Please note that we will watch or listen to significant parts of the audiovisual links
together during class time and you do not therefore need to listen to or watch them
prior to class – see references marked with an *.]
Please note that the Truth and Reconciliation Commission will be holding a National
Event in Montreal on April 24-27, 2013
http://www.trc.ca/websites/trcinstitution/index.php?p=92
Students are encouraged to attend all or part of the National Event.