Canadian Public Policy and IRSSA: Colonialism or Reconciliation?

The Indian Residential School Settlement Agreement (IRSSA) (2006) was articulated as a state mechanism of redress to address Canada’s history of violence towards Indigenous peoples and to serve justice to the victims of residential schools (Whyte, 2018: 282). Yet, numerous scholars of law and political science have argued that this policy’s content and implementation reveal ulterior state motives.

What does an interrogation of the content of the IRSSA and of the politics surrounding its implementation suggest about the genuine motivations of the state and about the limits of depending on public policy to create meaningful opportunities for Indigenous resurgence? Instead, what pathways towards resurgence that are independent from the state and its genocidal policies do Indigenous scholars theorize?

This blog looks at how the IRSSA was motivated less by achieving reconciliation and more by cleaning up the public image of Canada and putting a stop to the economic burden borne by lawsuits filed against Canada by residential school survivors. This blog also reviews Indigenous scholarly theories of resurgence to suggest that such theories offer rich opportunities for Indigenous resurgence because they are independent from policy and therefore disempower the state.

Simpson argues that many policies aimed at redress only intensify settler-colonialism because they are designed to reinforce the imbalance of power between Indigenous peoples and settlers rather than deconstruct colonial structures (2017: 192).The IRSSA is an example of such a policy. Although articulated as a redress mechanism to address past violence, the IRSSA merely empowers settler-colonialism by creating the illusion that the state treats Indigenous peoples on moral grounds and by granting the state more institutional power by which it may subjugate Indigenous people as dependents (Whyte). This policy is comprised of various programs, including: The Common Experience Payments, which affords $10,000 to each eligible former student and an additional $3,000 for each year of residence after the first year; the Independent Assessment Process which oversees claims of sexual, physical, or other abuse; and the Truth and Reconciliation Commission (Menkel-Meadow). Importantly, victims who accept payments obtained through the Settlement are legally binded from suing the federal government any further except for in cases of serious sexual and physical abuse (Corntassel and Holder).

That the IRSSA was less about institutionalizing opportunities for Indigenous resurgence and more about cleaning up the public image of Canada and putting a stop to the costly burden of constant lawsuits filed by residential school survivors can be proved by the fact that Canada battles survivors’ claims in court. Roach argues that the government of Canada re-victimizes survivors by using “crumbling skull arguments” (those which place blame on pre-existing conditions of plaintiffs) to reduce the amount of money they are legally mandated to pay to survivors as per the ISSRA (2014: 571). According to Roach, Canada has even attempted to battle cases were sexual abuse has been proven or admitted by arguing that the harms that survivors seek compensation for were not caused by the sexual abuse but by “other factors that included the survivors’ family lives”. Indeed, by arguing time after time that survivors were already damaged before they attended the schools by family violence, alcoholism or poverty, Canada has attempted to create “an original position in which to be Aboriginal was to be already injured” (Roach). That Canada has exploited all of its institutional power in effort to undermine the stipulations laid out by its own public policy is blatant proof that IRSSA was never about honoring survivors and broadening opportunities for Indigenous resurgence but about “removing a stain from its past” (Truth and Reconciliation Commission of Canada) and saving money.

Fullenwieder and Molnar have researched the ways that liberal understandings of privacy have been mobilized into the politics of the IRSSA to conceal histories of state violence and instead fuel settler hegemony. In 2016, a court decision was made to destroy the records of the Independent Assessment Process (IAP) on the basis of “protection of personal privacy of an especially vulnerable population”. Beside testimonies given consent by claimants to be archived, all IAP documents- proof of harms experienced by survivors, historical documents, school narratives, the administrative records of the IAP, etc.- were to be destroyed (Fullenwieder and Molnar). While this decision was articulated as one “in spirit of reconciliation” because it protected information about a vulnerable population, it also had the effect of destroying documents that might be used to hold Canada accountable for its colonial legacy (Fullenwieder and Molnar). The state’s decision to demolish revealing documents that served to empower survivors without any consultation with Indigenous governments or councils is yet another example of how IRSSA was motivated not by serving justice to Indigenous communities but by protecting the state from legal liabilities regarding residential school survivors (Corntassel and Holder).

Given that the Canadian state is “resilient against reconciliation” (Whyte) by purposefully curtailing any real and robust opportunities for Indigenous resurgence through public policy that subjugates Indigenous peoples as dependents of the state (Corntassel and Holder), Indigenous scholars research pathways to Indigenous resurgence that are independent of the state. Leanne Simpson calls for Indigenous nations to “reject state affirmation, recognition, and the performativity of the rights-based discourse” in favour of grounding themselves in “everyday place-based practices of resurgence”. She argues that by learning or reclaiming artistic practices, birthing and breastfeeding practices, parenting and death rituals, etc., Indigenous peoples may incorporate practices of resurgence into the unique contexts of their everyday lives (Simpson). Simpson argues that this is a robust pathway to resurgence because it is available to all Indigenous people regardless of whether they find themselves on urban, rural, or reserve land. She theorizes that such individual acts of resurgence will transpire into a more united resurgence movement that will fortify Indigenous nationhood and challenge the colonial spatial constructs created by the Indian Act in effort to decentralize Indigenous formations of resistance (Simpson). This pathway to Indigenous resurgence is robust and empowering because it is independent from policy. 

The IRSSA is a public policy articulated as a redress mechanism that merely reinforces systems of violence and oppression towards Indigenous peoples. In the face of what appears to be bullet-proof policies that institutionalize and reinforce settler hegemony, Indigenous-led pathways to resurgence mobilize Indigenous formations of resistance that may meet the state with full force.