The Untold Story: How Indigenous Legal Principles Informed the Largest Settlement in Canadian Legal History
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THE UNTOLD STORY: How INDIGENOUS LEGAL
PRINCIPLES INFORMED THE LARGEST SETTLEMENT IN
CANADIAN LEGAL HISTORY
Kathleen Mahoney, QC, FRSC*
Introduction
This paper is written from the experience of the writer as the chief negotiator for the
Assembly of First Nations in the settling of the historic Indian Residential Schools
Settlement Agreement (IRSSA).' It will explain how conventional legal and
theoretical frameworks - be they in the civil law of tort, criminal law, or international
human rights law - could never have achieved the reparations contained in the Indian
Residential School Settlement Agreement. The paper argues that these legal tools are
inadequate to fully comprehend state violations such as those perpetrated against
indigenous peoples and the harms they caused, especially when the violations were
motivated by cultural genocide. The paper further asserts that the lawyers that operate
within the formal justice system are ill prepared to comprehend or correct the
relationship between the oppressed indigenous peoples and their oppressors. Lawyers'
lack of training in indigenous law or legal traditions2 makes it difficult if not
impossible to achieve justice or access to justice for the harms colonial oppression
inflicts.
The example used in this paper, the IRSSA, examines how state-imposed
violations and harms, both collective and individual, ranging from loss of language
and culture, loss of family and community life, spiritual harms, intergenerational
dysfunction, and sexual, physical and psychological injuries, to loss of opportunity
* Professor of Law, University of Calgary. The author was the Chief Negotiator for the Assembly of First
Nations for the Indian Residential Schools Settlement Agreement. She also served as the AFN representative
on the National Administration Committee (NAC) for the Settlement Agreement from 2007 until 2018. The
NAC mandate was to oversee the implementation of the Agreement and hear appeals for the common
experience payments. The author also represented many individual survivors in their claims for
compensation under the terms of the settlement agreement during the same period.
For the Official Court Website of the Indian Residential Schools Settlement Agreement, see Canada,
Indian Residential Schools Settlement Agreement, (8 May 2006), online:
<http://www.residentialschoolsettlement.ca/settlement.html> [IRSSA].
2 This is beginning to change as some law schools now offer courses in Indigenous Legal Traditions. The
University of Victoria is leading the way in mainstreaming Indigenous Law into their curricula, offering
Canada's firstjoint program in Indigenous law and common law in September 2018 with an ambitious aim
of developing a third legal order in Canada, while also producing lawyers for industry, government, First
Nations and international work. See Sean Fine, University of Victoria to launch first-of-its-kind Indigenous
law program, The Globe and Mail (21 March 2018), online:
<https://www.theglobeandmail.com/canada/article-university-of-victoria-to-launch-first-of-its-kind-
indigenous-law/>.](ViewImageLocal?handle=hein.journals/unblj69&div=11&collection=&method=preview&ext=.png&size=3)
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The Untold Story: How Indigenous Legal Principles Informed the Largest Settlement in Canadian Legal History
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