Did the National Apologies to Aboriginal People Grant Absolution to the Government?

On June 11, 2008, the House of Commons met in the Committee of the Whole to allow the Prime Minister, Stephen Harper, the Leader of the Opposition, Stéphane Dion, Jack Layton, the leader of the New Democratic Party, and Gilles Duceppe, leader of the Bloc Québecois to each offer apologies for the harm done to First Nations and other Aboriginal students through their residential school experiences.[1]

Two new issues, related but readily distinguishable, have arisen in the past few months, about the residential school experience, neither of which were public knowledge at the time of the apology and certainly not at the times of the out-of-court settlement that was negotiated against a class action law suit brought against the Government and the churches. First, the National Chief of the AFN and other leaders at the All-Chiefs Assembly in Whitehorse, July 16-18, addressed newly published evidence by a scholarly researcher that students at certain residential schools had been subjected to nutrition experiments which entailed deliberately depriving some students, already showing signs of malnutrition further deprivation of both food and health supplements such as vitamins.[2] Secondly, it has much more recently come to light that certain schools were also the site of other “medical” experiments: some children were administered medications whose likely outcome was not scientifically established; other children were denied medication for illnesses for which they showed clear symptoms.[3]

The question which I wish to raise here is whether or not these entirely new allegations can fairly and equitably be considered to be subsumed under the apology of June 11, 2008. I raise this question because more than one Conservative Government spokesperson has said that these newly discovered actions are all covered by the 2008 apology. The 2008 apology arose out of an agreement between the Government of Canada and the churches which ran the residential schools under contract and the class action plaintiffs who were then suing the Government and the churches. I admit to not having read the agreement. On the other hand, I would be greatly surprised if there was a provision that forgave the Government and the churches for any and all additional harms that might be discovered in the future, including those of a wholly different character. The question is of particular importance because the time to file for compensation beyond the “common experience” category is soon coming to an end. On the other hand, it strikes me as inequitable, and, indeed unconscionable to claim that the Government can not be held liable for offences which were not known to have occurred before. Certainly, in Aboriginal rights law and, I believe, in matters of assault, a delay arising from the fact that the plaintiff was barred from access to the records stops the clock from ticking; and, all the more so when it is the Government which barred a dependent community from access to its own records.[4]

Since this is the issue that I wish to explore here I don’t think it necessary to rehearse the details of these experiments. I have provided, in my end notes links to numerous sources which lay out the details, most of which have links to other more detailed material, including Ian Mosby’s original article on the nutrition experiments. Admittedly, these issues interact with the issues which were dealt with explicitly in the apologies: physical abuse, sexual abuse, and separation from immediate and extended families. They also interact with the 80% tuberculosis rate amongst the children at those schools and a mortality rate that often reached 40%. Dr. P.H. Bryce, the medical officer of health of the Indian Affairs Dept. in 1908, in an article published in Saturday Night wrote that the schools wrote ““even war seldom shows as large a percentage of fatalities as does the education system we have imposed upon our Indian wards.” S.H. Blake Q.C, a distinguished lawyer, who negotiated contracts between the Government and some churches, said that “to obviate the preventable causes of death, [the Government] brings itself within unpleasant nearness to the charge of manslaughter.”[5]

Both these sets of experiments were conducted in the early 1940s. We do not hesitate to condemn other states for conducting ill-conceived medical experiments on inmates in the same time period. We are, in judging states with which we were at war in those years, quite certain that the conduct of such medical experiments was unethical and illegal. While the prohibitions against such practices may have been strengthened in recent years, these practices were clearly wrong, by the standards of the day, at the time that they were conducted. Indeed, one reason why such experiments were conducted on Indian students in Canada and Black inmates in the U.S. was precisely because they could not resist.

The AFN and other representative organizations called for an inquiry into the conduct of the nutrition experiments at the time that they released the details of the experiments. No doubt they would also want the prescribing of medicines for “scientific” rather than therapeutic purposes investigated. I doubt that readers of SLAW would be at all surprised if a new class action were brought by residential school survivors who were subjected to these experiments.

The Government has refused the demands for an inquiry on the ground that the 2008 apology covered these ostensibly medical assaults (or “insults” in the medical sense) on the children in the residential schools.

Since these experiments were not known to the Aboriginal parties, and perhaps also not known to the Government negotiators of the agreement that led to both the compensation program and the national apology, are there good grounds in law to think that the 2008 apology covers any and all other insults that may be discovered after 2008?

If a person received the common experience compensation but had been unable to justify a claim for the additional compensation for specific wrongs, e.g., sexual or physical assaults, well advised to retain counsel and search the medical records to see if he or she had been subject to any of these experiments?

If, as I have suggested, there was no evidence of these medical experiments known at the time that the class action suits were begun or at the time when the out-of-court agreement was negotiated, are people who may have been subjects of these experiments not on good grounds to begin a new class action?

Lastly, how are we to regard the statement of the Bernard Valcourt, the Minister of Aboriginal Affairs, that the 2008 apology covers any and all insults that might later be established? Is this one more instance of the Harper Government making up the law to suit its own convenience and without much regard either to case law or to statutes?

And, perhaps most important, beyond the legal questions, how is the attitude reflected by the statements of Valcourt and others on behalf of this Government to be understood in the context of a purported desire for reconciliation?