University of Western Sydney Law Review
Canada and Australia share many things in common, including a Westminster based parliamentary system of government, the same Head of State and membership of the Commonwealth. They also share a history of colonialisation where the Aboriginal peoples of Canada and Australia were overcome by the political, military and economic might of the Europeans – in the case of Australia it was the British and in Canada the French joined the British. A significant part of this colonialisation process was the policy of assimilating or attempting to assimilate the Aboriginal population into the dominant European socio-economic-political system. A major part of this assimilation process revolved around a policy of removing Aboriginal children from their families to be raised in institutions in order to facilitate their assimilation into white ways.
This article focuses on this system of Aboriginal child removals in both countries. It commences with a brief history of the removal process in each country. Then the article exams the demands for reparations that have been made in both countries followed by the responses made to these demands by the governments of Canada and Australia. It is argued that based on general principles of justice, reparations must be made to those Aborigines removed from their families as children.
As mentioned above, assimilation was at the core of the removal policy in Canada and Australia. The 1837 House of Commons Report made clear that Christianity and assimilation was in the best interest of the Aborigines in the colonies. In the late 19th century and beyond, there was virtual unanimity in such a policy. The Royal Commission on Aboriginal Peoples (RCAP) states that ‘no one involved in Indian Affairs doubted for a moment that separation was justified’. The first Canadian Prime Minister, Sir John MacDonald, stated, in 1887, that the aim of the government’s policy was ‘to do away with the tribal system and assimilate the ... [Aboriginal]... people in all respects with the inhabitants of the Dominion, as speedily as possible’.
This was mainly done through the establishment of Aboriginal Residential Schools. Schools similar to this had already been prevalent in Canada for some time prior to this. Jesuit missionaries had opened the first Aboriginal day school on the St Laurence River in 1611. The Franciscans followed up with their own Aboriginal boarding school in 1620. Christian missionaries and ministers provided 'Education'. Between the mid-1800s and 1970, ‘up to one third of all aboriginal children were confined in residential schools, many for the majority of their childhood’. The last residential school closed its doors in either 1983 or 1984.
In 1879, Nicholas Flood Davin reported to the Canadian government about Canadian Aboriginal education. The Davin Report recommended that the Canadian government fund schools administered by missionaries with a demonstrated commitment to the ‘civilising’ of Canadian Aboriginal peoples. A year later, the residential school system for Aboriginal children commenced in earnest. In 1920, the Indian Act was amended to require that all First Nations children attend a residential school for at least ten months a year. Church involvement in Aboriginal education was enormously important, and the formal relationship between the churches and the state did not end until 1969. During the 1970s the residential school system was in a process of winding down although the last residential school didn’t closed until the mid-1980s.
In Australia, the removal of Aboriginal children from their families commenced in earnest at around the turn of 20th century. The first seminal statute that set the legislative framework for the removal of Aboriginal children from their families was the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld), which was followed seven years later by the Aborigines Act 1905 (WA). The Queensland and Western Australian statutes were to form the blueprint of legislation in the other states (except Tasmania ) and the Northern Territory. Like in Canada, the churches were very involved in housing the removed children in church run missions. By the mid-1960s the process of removal to missions had slowed down and by mid 1970s and the last residential school closed in either 1983 or 1984.
In Australia often this assimilation policy was coated in language that aimed to completely ‘absorb’ Aborigines, particularly those of ‘lighter skinned’ into the dominant white European conference. At the 1937 Canberra conference of Commonwealth and State Aboriginal Affairs ministers, a conference dominated by Western Australia, Queensland and Northern Territory, a resolution was passed supporting the policy of the complete ‘absorption’ of the Aboriginal peoples of Australia into the European population:
DESTINY OF THE RACE. – That this Conference believes that the destiny of the natives of aboriginal origin, but not of the full-blood, lies in their ultimate absorption by the people of the
Commonwealth, and it therefore recommends that all efforts be directed to that end.
In both Canada and Australia there was a desire to bring Aboriginal peoples within the realm of western society. Thus, much of the education practice, and the very way of life in residential schools and missions and other institutions, was aimed at inculcating European beliefs in Aboriginal children. In truth, little changed in Aboriginal education in such institutions for generations.
Education was not central to the purpose of residential schools or missions. Only a few hours each day were set aside for school or lessons. Often this was centred on Christian education and an elementary teaching of the 3R’s.’ The rest of the day, or much of it, was focused on menial duties what might loosely be called ‘vocational’ training. Theoretically, this involved training Aboriginal children and adolescents in some useful trade or occupation. More often than not, however, the children merely provided for their own survival.
There have been numerous testimonial allegations of sub standard care and physical and sexual abuse in the residential schools and missions in Canada and Australia. In Canada, the most basic levels of health were often not available to Aboriginal children in residential schools. In 1948, the Canadian Departmental Superintendent summed up the nature of the problem when he stated that if he ‘were appointed by the Dominion Government for the express purpose of spreading tuberculosis, there is nothing finer in existence than the average Indian Residential School’.
The hardships endured by many Aboriginal children in residential schools severely affected their physical health and the abuses they suffered affected both their physical and mental well-being. Milloy states that ‘[t]here is no doubt that abuse was a persistent phenomenon’ of the residential school system. Miller notes that the lack of supervision by government officers ‘made it all too easy for the misfits, the sadists, and the perverts to mistreat and exploit the children’. One former residential school student described, in 1966, memories of recaptured runaways from the school being ‘forced to run a gauntlet where they were 'struck with anything that was at hand'’.
The residential school experiment led to many Aboriginals suffering hardship and abuse, including sexual abuse. A Canadian ministerial adviser on sexual abuse commented, in 1990, that ‘closer scrutiny of treatment of children at residential schools would show that all children in some schools were sexually abused’.
The extent and range of abuses and ‘sufferings’ emanating from removal from family to residential schools are numerous. The Nuuchat-nulth researchers group the types of abuses as follows: separation from family; physical conditions at the schools; loss of native language; abuse (emotional, physical, sexual, spiritual); and child labour.
The story is similar in Australia. Many Aborigines removed from their families complained of harsh conditions, denial of parental contact and cultural heritage, harsh punishment and physical and sexual abuse. The following statement from an Aboriginal removed to a mission as a child is not atypical:
We were inculcated into a Christian religion and my Aboriginal culture or history was non-existent. That was completely irrelevant to our lifestyles at that stage. It was really an understatement to say that we were not taught anything about our Aboriginal culture or history. The fact is that our Aboriginality was never mentioned, it was never a consideration.
When we had our periods we used rags that we had to wash out ourselves. We were never allowed to ask the housemother
for sanitary clothing. We always had to ask the big red headed Dutchman, who had a vile temper and some awful strange behaviour. He loved nothing better than to watch us have a bath. He also enjoyed giving us a floggings.
An empirical study conducted by the Aboriginal Legal Service of Western Australian (ALSWA) gives further support to the sub standard treatment and abuse many Aborigines placed in missions and other institutional care suffered. Out of a survey response of 483, of whom 411 spent some time in a mission, 81 percent experienced physical abuse and 13 percent experienced sexual abuse during their mission stay.
In both countries, many Aborigines continue to endure the effects of the removal of children from families to be institutionalised. Loss of culture, family, connection and trust, to name but a few losses, and the pain of abuse, whether physical, sexual or psychological, has resulted in many Aborigines being unable to properly function as parents and members of communities. Often this has been played out through substance abuse, contact with the criminal justice system, poor health, suicide, mental illness, loneliness, and alienation. Professor Beverley, a psychiatrist, has stated that many Aboriginal people who were removed to missions and other institutional and foster care environments have displayed symptoms and behaviour similar to holocaust victims.
The right to reparations for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India wrote:
That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.
Professor Theo van Boven in a study commissioned by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities has states:
In accordance with international law, States have the duty to adopt special measures, where to permit expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
For nearly or most of the period that removal of Aboriginal children was practiced in any significant way, say prior to the 1970s, neither country was a signatory to the major relevant international human rights instruments such as the International Covenant of Civil and Political Rights or Convention on the Elimination of All Forms of Racial Discrimination. This makes it difficult to argue that Canada and Australia are obligated under international human rights treaty law to provide reparations to those removed (and possibly their families). It may be possible to argue that during the relevant period, international customary law or human rights as recognised by the international community prohibited the removal of children from family based on racial identity, denial of family contact and cultural heritage and physical and sexual abuse. Moreover, based on general principles of
justice as espoused by Justice Roy of India, there is an obligation to provide reparations for wrongs committed.
From at least the early 1990s in both Canada and Australia, there have been persistent calls for Government inquiries into the removal experience and process. There have also been corresponding demands for reparations.
In Canada, the disclosure in late 1990 by Mr Phil Fontaine, Grand Chief of the Assembly of Manitoba Chiefs, that he suffered abuse in the Roman Catholic residential school in Fort Alexander, Manitoba, was a major catalyst for increased public focus on the removal of Aboriginal people from their families to residential schools. Since 1990 there has been an increased focus by Aboriginal people, governments and churches on the impact of residential schools on those that attended them. Civil litigation has accompanied this increased focus, which has, in effect, provided further allegations and ‘evidence’ of the negative impact of the removal policies and practices, which placed Aboriginal children in residential schools. Further, victims have called for the government to make reparations without the need to resort to litigation. Also the Anglican Church of Canada has demanded that the federal government acknowledge and apologise to Aboriginal people for damages cause by the removal and residential schools scheme and the Assembly of First Nations (AFN) demanded a national inquiry, an apology and monetary compensation.
The RCAP, established in 1991, gave additional focus to the demands for reparations. The RCAP made a number of recommendations on the residential schools issue. The RCAP commissioned a number of reports and conducted a number of hearings into the residential school issue. It heard from former students of the schools, Aboriginal representatives, church officials, academics and professionals and government officials. In response to the allegations of mistreatment, abuse and neglect it heard, the RACP recommends that part of the response or reparation process should include a public inquiry into the residential school system. The RCAP states:
We believe that a public inquiry into the residential schools is an appropriate social and institutional forum to enable Aboriginal people to do what we and others before us have suggested is necessary: to stand in dignity, voice their sorrow and anger and be listened to with respect.
A public inquiry is also an appropriate instrument to perform the investigative function necessary to understand fully the nature and ramifications of the residential school policies.
The RCAP made a number of other reparation recommendations. It recommended that the Canadian federal government: fund the establishment of a national repository of records and video collections related to residential schools, co-ordinated with planning of the recommended Aboriginal Peoples’ International University (see Volume 3, Chapter 5) and its electronic clearinghouse; facilitate access to documentation and electronic exchange of research on residential schools; provide financial assistance for the collection of testimony and continuing research; work with educators in the design of Aboriginal curriculum that explains the history and effects of residential schools; and conduct public education programs on the history and effects of residential schools and remedies applied to relieve their negative effects.
As in Canada, the year 1990 was also a significant point in Australia in relation to the push for reparations for those Aborigines removed as children from their families. The Secretariat of the National Aboriginal and Islander Child Care (SNAICC) resolved at its national conference in 1990 to demand a national inquiry into the removal issue. On 4 August 1991, National Aboriginal and Islander Children’s Day, SNAICC in conjunction with high profile Aboriginal entertainers, Archie Roach and Ruby Hunter, publicly launched a demand for an inquiry. Other Aboriginal organisations such as, the ALSWA and Link-Up (NSW) were also vocal in their demands for a national inquiry.
On 2 August 1995, the Commonwealth of Australia’s Attorney-General, the Honourable Michael Lavarch commissioned the Australian Human Rights and Equal Opportunity Commission to conduct a national inquiry into the separation of Aboriginal children from their families – to examine and report on the history and effects of Aboriginal child removals, improve service delivery to Aboriginal people, principles for awarding compensation and current Aboriginal child welfare. The National Inquiry report, Bringing then Home, was tabled in federal Parliament on 25 May 1997. It documents widespread and systematic racial discrimination and gross ill treatment of Aboriginal Australians, as lawmakers and administrators sought to resolve ‘the Aboriginal problem’.
In total, the National Inquiry report made 54 recommendations. The recommendations covered all the components of reparations: acknowledgement of truth and an apology; guarantees of non-repetition of violations; rehabilitation; compensation; and restitution. In relation to one of the more controversial recommendations, compensation, the National Inquiry stated that part of the reason a ‘National Compensation Fund’ should be established is because of the procedural, evidential and cost difficulties involved in litigation. Like Canada, litigation in relation to the removal issues has taken place in Australia, but unlike Canada, there have as yet been no success stories.
In initiating the Restoring Dignity report, the Canadian federal Government required the LCC to 'closely consult' with national Aboriginal leadership about the inquiry. However, the federal government has refused to take onboard the demands and recommendations for a public inquiry specifically into the residential schools. It has been more receptive to the issuing of an apology. In an address by The Honourable Jan Stewart, Minister of Indian Affairs and Northern Development on the occasion of the unveiling of the federal government’s response to the RCAP reports, Gathering Strength - Canada’s Aboriginal Action Plan (‘Gathering Strength Action Plan’)  on 7 January 1998 in Ottawa, the federal government stated it was ‘deeply sorry’ to those that has suffered physical or sexual abuse at the residential schools.
In addition to the apology, the Canadian federal Government in its Gathering Strength Action Plan committed $350 million for a ‘Healing Fund’ designed to support communities in redressing ‘the legacy of physical and sexual abuse at residential schools’. The ‘apology’ and ‘Healing Fund’ won support from some Aboriginal leaders but not others.
Further, on 14 November 1997, the federal Minister of Justice requested the LCC to prepare a ‘report addressing processes for dealing with institutional child physical and sexual abuse.’ While the Commission’s report, Restoring Dignity does not exclusively focus on residential school abuse; it devotes a specific section to it. In responding to Restoring Dignity, the Canadian Government acknowledges that:
[a]ddressing the legacy of past institutional abuse in Indian residential schools is an extremely complex and sensitive issue. The volume of cases presents a challenge for everyone involved - including the victims. The government's first priority is to work with claimants and the churches to find lasting solutions that address the healing needs of victims of abuse.
To this effect, in September 2000, Prime Minister Chrétien appointed Deputy Prime Minister Herb Gray as the special representative to the churches to discuss church and government shared responsibility for residential schools cases in order ‘to find a comprehensive long-term solution to the issue of church liability.’
Unlike the Canadian federal Government and the Australian State and Territory Governments, the Australian federal Government has been very reticent in providing a formal apology to Aboriginal people. It was not until 26 August 1999 that the Prime Minister, John Howard proposed a motion to Parliament offering a statement of regret but not sorry to Aboriginal people to reaffirm the Government’s commitment to reconciliation between Aboriginal and non-Aboriginal Australians. While the speech acknowledges past mistreatment of Aborigines and regrets any resulting hurt and trauma it fails to specifically acknowledge or apologise for damages suffered by those Aborigines removed from families to missions and other institutions.
The Australian federal Government has been more ready to act on other recommendations made by the National Inquiry report. In a press release by Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron on 16 December 1997, about six months after the National Inquiry report’s tabling in federal Parliament, the Government again reiterated its opposition to monetary compensation. Instead the Government outlined a plan to provide $63 million over four years, primarily aimed at addressing the ‘family separation and its consequences’ – providing financial assistance for things such as preservation of records, the recording of oral stories, family support and parenting programmes, language and cultural programmes, family link-up services and counselling. 
The history of removing Aboriginal children from their families in Canada and Australia has been similar in policy and practice but longer in time in the former country. In both countries, the removal policy and practice had a pervasive effect on the removed individuals, their families and communities. For many, the effects are still being played out today. With the maltreatment, abuse and neglect suffered by many of those removed, have come demands for reparations for the resulting damages. The demands for reparations have been similar in both countries. In some respects the government responses to these demands have been similar but there have also been major differences. The main difference has been the largesse of the financial reparations provided by the Canadian Government compared to the Australian Government and in the willingness of the Canadians to say ‘sorry’ – a word that the Australian federal Government but not the State and Territorial Governments, has refused to utter.
[*] BPE (Hons), Dip Ed, MIR (UWA); LLB (Hons) (ANU), Senior Lecturer in Law, Associate Dean (Research), JLV/Louis St John Johnson Memorial Trust Fellowship in Aboriginal Legal Issues, Director of Asia Pacific Centre of Human Rights and Prevention of Ethnic Conflict, School of Law Murdoch University, Barrister and Solicitor of the Supreme Court of Western Australia and High Court of Australia. The author would like to acknowledge the assistance of the Canadian Government in the awarding of a Faculty Research Program Grant to assist the author to travel to Canada to research for this article. The author would also like to acknowledge the assistance of Gehann Perara in the preparation of this article. All opinions and errors are, of course, those of the author.
 Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (1995) 205.
 RCAP, Report (1996) Vol 1, 339.
 Miller, J, Shingwauk’s Vision: A History of Native Residential Schools (1997) 189.
 Noriega, J, ‘American Indian Education in the United States: Indoctrination for Subordination to Colonialism’, in M Annette Jaimes, ed., The State of Native America; Genocide, Colonisation, and Resistance (1992) 380.
 Miller, above n 3, 39.
 SAGE, Law Commission of Canada Needs and Expectations for Redress of Victims of Abuse at Residential Schools (1998) 13. It should be noted that many Metis children who were sent to the residential schools were not recorded on the schools’ registers.
 Barman, J, Herbert, Y, and McCaskill, D, ‘ The Legacy of the Past: An Overview’, in Barman, J, Herbert, Y, and McCaskill, D, (eds), Indian Education in Canada Volume 1: the Legacy (1986) 6.
 In Tasmania, Aboriginal children were removed under general child welfare legislation.
 The legislation in the various jurisdictions that make up the Commonwealth of Australia are summarised in Human Rights and Equal Opportunity Commission (HREOC), Bringing them home (1997) 599-648.
 Commonwealth of Australia, Aboriginal Welfare-Initial Conference of Commonwealth and State Aboriginal Authorities (1937) 3.
 Bateman, FEA, Report on Survey of Native Affairs (1948) 10.
 Milloy, J, A National Crime: The Canadian Government and the Residential School System 1879 to 1986 (1999) 262.
 Ibid, 140.
 Miller, above n 3, 422.
 RCAP, above n 2, Vol 1, 372-3.
 Ibid, 378.
 Nuu-chah-nulth Tribal Council, Indian Residential Schools: The Nuu-chah-nulth Experience (1996).
 Refer to Aboriginal Legal Service of Western Australia (ALSWA), Telling Our Story (1995).
 Ibid, 40.
 Ibid, 4.
 ALSWA, After the Removal (1996) 44, 49-51.
 Ibid, 61-65; M Gannage, Law Commission of Canada (LCC), An International Perspective: A Review and Analysis of Approaches to Addressing Past Institutional or Systematic Abuse in Selected Countries (1998) 26.
 Speaking at the State Mental Health Conference, Perth, 20 November, 1995.
 Justice Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?’ (1961) 55 American Journal of International Law 863, 863.
 T van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117 (U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996) 2.
 The last instrument mentioned didn’t come into existence until the 1970s. There is the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 – however I do not proceed to debate in this article the claim that the removal process was genocidal.
 RCAP, above n 2, Vol 1, 377-378.
 For example, refer to R (GB) v Hollett (1996) DLR LEXIS 1334; and B (WR) v Plint (1998) 161 DLR (4th) 538 (BCSS).
 RCAP, above n 2, Vol 1, 382.
 Ibid, 332 – 409 (Chapter 10: ‘Residential Schools’).
 Ibid, 383. The recommendation for a public inquiry is made in 1.10.1 at 385, and in Vol 5, 143.
 Ibid, 383-384. The RCAP remarked that due to the number of issues it had to consider under its terms of reference it was not possible for it to conduct the public inquiry they recommended. The RCAP noted: ‘[w]e hope that this chapter of our report opens a door on a part of Canadian history that has remained firmly closed for too long. In our view, however, much more public scrutiny and investigation are needed. A public inquiry into Canada’s residential school system would be an indispensable first step toward a new relationship of faith and mutual confidence.’ Ibid, 384-385.
 Ibid, 386, recommendation 1.10.3, and in Vol 5, 143-144.
 D’Souza, N., ‘The Stolen Generation: From Removal to Reconciliation’ UNSWLawJl 16; , (1998) 21(1) University of New South Wales Law Journal, 204 at 205.
 Above n 10, 247-313.
 Ibid, recommendation 16, 310.
 Ibid, 305.
 For example, refer to Kruger v Commonwealth  HCA 27; (1997) 190 CLR 1; Williams The Minister, Aboriginal Land Rights Act 1983 [No 2] (Trial) (1999) 25 FLR 86; Williams The Minister, Aboriginal Land Rights Act 1983 [No 2] (Appeal)  81-578, 64,136; Cubillo v The Commonwealth (Trial)  FCA 518; (1999) 163 ALR 395; Cubillo v The Commonwealth (Appeal) (2001) FCA 1213.
 Letter from the Hon A Anne McLellan, Minister for Justice, to Mr Roderick A Macdonald, President, Law Commission of Canada, 14 November 1997.
 Government of Canada, A federal government news release, 'Canada’s Aboriginal Action Plan Focused on Communities, Founded on Reconciliation and Renewal', [Internet] URL <http://www.inac.gc.ca/news/jan98/1-9801.html> (to coincide with the Minister’s address), commented: ‘At the heart of this Action Plan is a commitment to address the needs of communities by building a real partnership with Aboriginal people, including the development of mechanisms to recognise sustainable and accountable Aboriginal governments and institutions. An essential aspect will be to work closely together with Aboriginal people to define the partnership and shape a common vision of the relationship between us. ... Canada’s Aboriginal Action Plan has four objectives: renewing the partnerships; strengthening Aboriginal governance; developing a new fiscal relationship; [and] supporting strong communities, people and economies.’
 The Honourable Jane Stewart, Minister of Indian Affairs and Northern Development, Statement of Reconciliation: Learning from the Past, [Internet] URL <http://www.inac.gc.ca/info/speeches/jan98/action.html> 7 January 1998.
 For example, the National Chief of AFN, Phil Fontaine accepted the apology and praised the federal government’s commitment of the Aboriginal-controlled Healing Fund. However he added: '[t]he Healing Fund, which is to support community healing, does not in any way address or mitigate the rights of individual First Nations citizens to further individual compensation from the government and others'. AFN Secretariat, 'Residential Schools Healing Fund Announced', (March 1998) Residential School Update, 1.
 Letter from the Hon A Anne McLellan, Minister for Justice, to Mr Roderick A Macdonald, President, Law Commission of Canada, 14 November 1997.
 LCC, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (2000) 51-70.
 Canadian Government, Safeguarding the Future and Healing the Past (2000).
 South Australia: 28 May 1997; Western Australia: 28 May 1997; Queensland: 3 June 1997; ACT: 17 June 1997; New South Wales: 18 June 1997; Tasmania: 13 August 1997; and Victoria: 17 September 1997. The Northern Territory Government has not made a statement of apology. Most of the major churches have also issue statements of apology. Also a National Sorry Day organised by members of the community was held on 26 May 1998.
 Transcript of the Prime Minister The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <http://www.pm.gov.au/media/pressrel/1999/reconciliation2608.htm> 1.
 Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron, 'Bringing Them Home – Commonwealth Initiatives', Media Release, Canberra, 16 December 1997.