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Commentary

Peacemaking On the National Stage 

By: Erin Fitz-Gerald

Editor’s Note: This article reflects on egregious violations of human rights (including genocidal violence) committed by colonial governments and sponsored by the Catholic Church. We welcome dialogue regarding the ideas expressed herein in the comments. Thank you.

In the summer of 2021, graves of indigenous students were unearthed in Canada near boarding schools, known as Indian Residential Schools (IRS), forcing Indigenous people around the world to revisit the harms and injustices they and their ancestors had suffered and from which they continue to suffer at the hands of hostile, colonialist governments. Earlier this same year, Ireland published a report detailing the abuses and deaths of women and children in Mother and Baby Homes, religious institutions where unwed women were sent to deliver their babies in secret. The tragedies in these countries have some similar characteristics, and yet, how the two nations approached and responded to them is considerably different. The Truth and Reconciliation Commission of Canada (TRC) undertook Indigenous Peacemaking to forge a path forward to improve relations between the nation and Indigenous communities. Alternatively, Ireland’s Mother and Baby Homes Commission of Investigation positioned itself within the Anglo law approach by inquiring into the past to assign guilt and garner retribution. Healing on a national level is no easy matter when confronted with a legacy of irreparable harm. The TRC’s use of Indigenous Peacemaking however provides a model of restorative justice that demonstrates how a country can begin to address the wrongs inflicted.

            The tragedies in Canada and Ireland were both carried out in state-endorsed, Church-run institutions. In Canada, the Indian Residential Schools were a network of 139 boarding schools funded by the state and run by Christian churches from 1894-1947.[1] The purpose of these schools was not only to educate but to assimilate Indian children by isolating them from their families and prohibiting the speaking of their Indigenous languages.[2] As the TRC’s report acknowledges, Canada committed cultural genocide. In the end, 150,000 children attended these schools and a minimum of 3,200 deaths resulted from malnutrition, disease, sexual and physical abuse.[3] Incomplete records have led to speculation that as many as 15,000 deaths occurred in the IRS system.[4]

            In Ireland, the Mother and Baby Homes were institutions where unmarried pregnant women and girls were sent from 1922-1998 to deliver their babies in secret. In Ireland, where the Catholic Church has exercised influence and power for centuries, premarital sex was gravely sinful; hence, “the stated primary mission of these homes was to promote reform and repentance.”[5] The various orders of Catholic nuns who ran these homes believed that they were rescuing approximately 56,000 destitute, unwed women “from homelessness and life on the streets.”[6] Approximately 57,000 illegitimate children were born in eighteen homes over the course of nearly eight decades.[7] They suffered physical abuses, medical experimentation and forced adoption. 9,000 children are estimated to have died in these homes.[8] 

            The two nations have faced crises of conscience in the past ten years as more has come to be known about these institutions. The discovered gravesites and survivor testimonies exposed how the countries condoned abuses of these vulnerable people. The Indian Residential Schools separated children and families as did the Mother and Baby homes. Indigenous children were compelled to travel great distances to these schools, and for years never saw their families. Irish “fallen women” had few choices other than to enter these homes once ostracized by their families and abandoned by their children’s fathers.[9] Indigenous children’s cultural identities were stripped from them when their clothes were taken, their hair cut, and their language forbidden from being spoken.[10] The Irish women, repenting for their sins, worked for their stay in the homes,[11] labored and gave birth with little medical assistance,[12] and often never knew who their child was after birth even though they may have lived in the same building.[13] 

            Both of these systems used shame as a weapon. The attendant abuse only magnifies the injustice suffered. In both countries, survivors recount emotional, physical and sexual abuse witnessed and personally endured. Some might discount these traumas as the actions of a few bad actors and not the responsibility of a system condoned by Church or State. Yet, the fact that both countries permitted pharmaceutical companies to perform vaccine trials on children without parental or guardian consent suggests otherwise. From the 1930’s to the 1940’s, a tuberculosis vaccine was developed on First Nations children in Indian Residential Schools.[14] In the 1940’s additional experiments, including one tracking the effects of malnutrition, were carried out at the schools.[15] From the 1930’s to the 1970’s, children in the Mother and Baby Homes were subject to a measles vaccine trial, a DTP (diphtheria, whooping cough and tetanus) vaccine trial, and even baby formula trials.[16] 

            The causes of death and the handling of the dead reflect another level of indifference, one closer to disdain. Indigenous children regularly ran away from the schools, which in winter meant death for some. Tuberculosis was a main cause of death for many years. Yet, the underfunding of the schools and homes likely contributed to those deaths. Without sufficient maintenance and heating of the facilities, the poor nutrition and unsanitary conditions made illness nearly inevitable.[17] Infant mortality rates in the Mother and Baby Homes were “appalling.”[18] Over the years, 9,000 children or one in seven of those born within the homes died.[19] These homes “appear to have significantly reduced their prospects of survival,” given that the mortality rates were double those of the general Irish population.[20]

            Many accounts suggest that families were never notified that their child had died or gone missing. The unmarked graves in both cases affirm this likelihood. The recent discoveries of unmarked graves at some of the facilities in Canada are not the first and are not expected to be the last. In May 2021, 215 unmarked graves were located at the Kamloops Indian Residential School in British Columbia.[21] In June 2021, 751 unmarked graves were found at Marieval Indian Residential school on the Cowessess First Nation in Saskatchewan and 182 unmarked graves were found near St. Eugene’s Mission School in British Columbia.[22] In Ireland, the unmarked graves in two facilities stand out. In Tuam, County Galway, which was where the investigation into the Mother and Baby Homes was initiated, remains were interred in what may have been an unused septic tank.[23] In Bessborough the location of the cemetery remains unknown.[24] The lack of records in all instances is not only stunning, but heartbreaking. 

            While the tragedies in Canada and Ireland resemble one another, how the countries confronted them is tellingly distinct. Both countries issued reports.[25] Yet, the purpose and method of gathering the findings illustrate how one approach can lead to healing while the other “promotes further conflict and disharmony.”[26] Canada adopted the values inherent within Indigenous Peacemaking, whereas Ireland approached it from the Anglo Law perspective. 

            Indigenous Peacemaking tries “to find out what went wrong to restore the mind, physical well-being, the spirit and emotional stability.”[27] This healing accompanies an “integration with the group, and the end goal of nourishing ongoing relationships within a community.”[28] A gathering is held where all those involved are invited to speak freely about feelings or solutions. Given that the focus is on solving problems rather than assigning guilt or exacting punishment, parties are more likely to share their views of the dispute.[29] In this approach justice is not about determining who is at fault but rather helping a victim and effecting better relations among people.  

            In contrast, Anglo Law takes an adversarial approach.  Rooted in “power, force and coercion,” justice means determining fault to settle an issue.[30] As a colonial construct, wrongdoers are punished for violating rights.[31] Retribution and deterrence are targeted. Victims however “have little or no opportunity to participate in outcomes” and are often ignored or left empty-handed.[32] It is a divisive technique. It does “nothing to restore the individual, the community and the actual harm that was done” and “tear[s] the fabric of family and community.”[33] 

            The findings regarding the Indian Residential School system was the work of the Truth and Reconciliation Commission (TRC) which was active from 2008-2015. The TRC was established as a result of the largest class-action settlement within Canada, the Indian Residential School Settlement Agreement.  After many former IRS students brought suits for the abuses they suffered, Canada reached a settlement with 86,000 former students in 2006.[34] The TRC was a three-person panel of Indigenous descent and with some experience with the IRS system.  The government of Canada distantly oversaw the TRC, which was mandated to compose a report that documented the history and legacy of the system from 2007-2015.[35] In contrast, Ireland established its commission in 2015.[36] An amateur historian and reporter first suggested that there were unmarked graves of children at Tuam in 2010.[37] After public outrage grew, the government appointed a three-person panel, the Mother and Baby Homes Commission of Investigation, in 2015.[38] Its final report was issued in January 2021.[39]

            One can see how the TRC gathered its findings with Peacemaking principles in mind. Hosting seven national events and other smaller forums to gather testimony of over 6,500 students, the TRC facilitated Peacemaking.[40] The report documents word-for-word the testimonies of those who gave it, unless requested otherwise. The report, however, not only serves to record the injustices suffered but also to educate Canadian society about the harms Indigenous people suffered at these schools.[41] An improved relationship between Indigenous people and the community was begun with a shared understanding of the causes and effects of the IRS system. Canada not only provided Indigenous people with a public forum for voicing their pain and suffering but also took responsibility for their actions with an eye toward the future. The report provided 94 Calls to Action to address the legacy of the IRS system and to reconcile with Indigenous people.[42] They are specific, concrete actions for Canada and Canadian society to include and integrate Indigenous People in Canadian society. Whether and how well Canada meets these Calls to Action remains to be seen. It will require a sustained effort to overcome the painful and irredeemable legacy of the IRS system.[43]

Ireland’s approach to the Commission’s report reflects the power of the state to pretend to go through the motions in order to settle an issue.[44] At the start, Ireland identified eight “Terms of Reference” for the Commission to investigate.[45] These terms included studying the living conditions, identifying the causes of death and the methods of burials, and examining the adoption procedures.[46] Such information presumably set the stage for blame. The Commission was to perform its Terms of Reference through a “Confidential Committee” that would record testimony of residents and staff.[47] Here, the state had permission to take coercive action behind a veil of secrecy. The Commission initially forgot the victims as the Terms of Reference make no mention of providing redress, a correction made later in the process. In October 2020, the government exercised further control when legislation to withhold completed findings due to privacy concerns was signed into law.[48] The Irish president indicated that the courts are an available recourse for survivors to challenge the law. This act certainly ensures the perpetuation of conflict and disharmony among survivors and the nation. Damage to the “fabric of the family and the community” is nonetheless sustained despite the government’s promise that family tracing will be possible with the information that is provided.[49]

            The differing approaches may be explained in several ways. First, Canada’s Commission was an outgrowth of a class action suit, while Ireland’s was from national outrage over the gravesite discoveries and prior to any possibility of adjudication. Second, the cultural heritage of the wronged, vulnerable populations mattered. Indigenous culture has unique, traditional practices to draw upon, whereas Irish women have few of their own since they are subsumed by Western culture with its Christian overlay. Third, one tradition engages in a process of cooperation and solidarity to repair relationships while the other uses rules and principles to protect the individual.[50] 

            Regardless of the reasons for the differing approaches, the efficacy of the approaches cannot be easily disputed. While Canada may be criticized for its failure to work on or complete all of its Calls to Action,[51] Ireland appears to have merely altered a past tragedy into an ongoing controversy. It may be a matter of which country holds itself accountable. Indigenous Peacemaking considers responsibility to be primary to any dispute resolution.[52] As a result, Canada took responsibility for its part in the IRS system. Canada admits to cultural genocide in its report: 

Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group …. [M]ost significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next. In its dealing with Aboriginal people, Canada did all these things.”[53]

In contrast, Ireland bears none of the responsibility for the suffering and deaths of the women and children in the Mother and Baby Homes it funded for over seventy years. The Commission maintained:

“Responsibility for that harsh treatment rests mainly with the fathers of their children and their own immediate families. It was supported by, contributed to, and condoned by, the institutions of the State and the Churches. However, it must be acknowledged that the institutions under investigation provided a refuge – a harsh refuge in some cases -when the families provided no refuge at all.” [54]

            Taking responsibility for the past is not easy. However, a working partnership cannot be possible without it. Canada’s willingness to engage in Indigenous Peacemaking resulted in meaningful ways for the country and its people to move forward and build relationships. The contrasting example of Ireland’s use of an adversarial method demonstrates how conflict may be perpetuated and how a country can be mired in the past. Canada and Ireland serve as useful demonstrations for nations as they encounter disputes ranging from climate change to the pandemic. Traditional justice offers an alternative dispute resolution method that respects relationships as it acknowledges that “all action, healing or harmful, has a profound ripple effect on others.”[55] Seeking to heal is a choice that countries can make if they are willing to learn from Indigenous peoples. 


[1] Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, The Truth and Reconciliation Commission of Canada, 3 (2015)  https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf.

[2] Id. at 1.

[3] Id. at 3.

[4] Canada must reveal ‘undiscovered truths’ of residential schools to heal, The Guardian (published June 27, 2021) https://www.theguardian.com/global-development/2021/jun/27/canada-must-reveal-undiscovered-truths-of-residential-schools-to-heal.

[5] Executive Summary of the Final Report of the Commission of Investigation into Mother and Baby Homes, Dept. of Children, Equality, Disability, Integration and Youth, 17 (Jan. 12, 2021) https://www.gov.ie/

en/publication/22c0e-executive-summary-of-the-final-report-of-the-commission-of-investigation-into-mother-and-baby-homes/.

[6] Id.

[7] Id. at 2.

[8] Id. at 4.

[9] Id. at 13.

[10]  The Truth and Reconciliation Commission of Canada, supra note 1, at 1.

[11] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 64.

[12] Id. at 66.

[13] Kara Fox, “For Decades, Ireland’s Mother and Baby Homes were Shrouded in Secrecy. Some Say the Veil Still Hasn’t Lifted,” Cnn.com (Sep. 8, 2019) https://www.cnn.com/2019/09/07/europe/ireland-mother-and-baby-homes-intl/index.html.

[14]

Jorge Barrera, First Nations Infants Subject to “Human Experimental Work” for TB Vaccine in 1930s-40s, APTN Nat’l News, (July 24, 2013) https://www.aptnnews.ca/national-news/first-nations-infants-subject-to-human-experimental-work-for-tb-vaccine-in-1930s-40s/

[15] Id.

[16] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 71.

[17]  Ian Mosby & Erin Millions, Canada’s Residential Schools Were a Horror, Scientific American (August 1, 2021) https://www.scientificamerican.com/article/canadas-residential-schools-were-a-horror/.

[18] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 66.

[19] Id. at 63-64.

[20] Id. at 4.

[21] Ian Austen, ‘Horrible History’: Mass Grave of Indigenous Children Reported in Canada, New York Times (Oct. 5, 2021) https://www.nytimes.com/2021/05/28/world/canada/kamloops-mass-grave-residential-schools.html.

[22]  Mindy Weisberger, Remains of more than 1,000 Indigenous children found at former residential schools in Canada (July 13, 2021) https://www.livescience.com/childrens-graves-residential-schools-canada.html.

[23] Dan Barry, The Lost Children of Tuam, N.Y. Times (Oct. 28, 2017) https: //www.nytimes.com/interactive/2017/

10/28/world/Europe/tuam-ireland-babies-children.html.

[24] Barry Roche, Bessborough Babies may have been buried in local authority cemetery, suggests order, Irishtimes.com (Jan. 30, 2021)

[25] The TRC’s report fills six volumes and an appendix. The Final Report of the Mother and Baby Homes Commission of Investigation amounts to 2,865 pages. TRC’s report consists of the Commission’s findings  and transcriptions of survivor testimony.

[26] Robert Yazzie, Life Comes From It: Navajo Justice Concepts, 24 N.M. L. Rev. 175, 179 (1994).

[27] Id.

[28] Id. at 182.

[29] Id. at 184.

[30] Id. at 182.

[31] Id. at 178.

[32] Id.

[33] Timothy Connors, Exit, Pursued by a Bear: Why Peacemaking Makes Sense in State Court Justice Systems, Judges J. Vol. 55, No. 4, Fall 2016.

[34]  Indian Residential Schools Settlement Agreement, (May 8, 2006) https://www.residentialschoolsettlement.ca/ IRS%20Settlement%20Agreement-%20ENGLISH.pdf.

[35] Mandate for the Truth and Reconciliation Commission, Government of Canada, (May 8, 2006), https://www.

residentialschoolsettlement.ca/SCHEDULE_N.pdf.

[36] Final Report of the Commission of the Mother and Baby Homes, Gov.ie, (published Jan. 12, 2021) https://www.gov.ie/en/publication/d4b3d-final-report-of-the-commission-of-investigation-into-mother-and-baby-homes/.

[37] Weisberger, supra note 22.

[38] Government of Canada, supra note 35.

[39] Id.

[40] The Truth and Reconciliation Commission of Canada, supra note 1, at v. https://ehprnh2mwo3.exactdn.

com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf.

[41]  Mandate for the Truth and Reconciliation Commission, Government of Canada, (May 8, 2006), https://www.residentialschoolsettlement.ca/SCHEDULE_N.pdf.

[42] The Calls to Action concerned with legacy involve child welfare, education, language and culture, health and justice. The calls to action concerned with reconciliation include the Canadian Government’s integration of the values of the United Nations Declaration on the Rights of Indigenous People, Equity for Aboriginal People in the Legal System, Missing Children, and Burial Information, Media, Sports and business.

[43] The Guardian, supra note 4.

[44] Unless Canada does more to repair the damage of the IRS system, the Indian Residential School Settlement Agreement and TRC will also be regarded as insincere overtures to improving the country’s relationship with Indigenous people.

[45] S.I. No. 57/2015 Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Order 2015, https://www.irishstatutebook.ie/eli/2015/si/57/made/en/.

[46] Id.

[47] Id.

[48] TRC’s report and the attendant documents turned over by the Canadian government has been permanently archived at the National Centre for Truth and Reconciliation at the University of Manitoba.

[49] Connors, supra note 33.

[50] Id.

[51] Christopher Nardi, Much Work Remains on the Truth and Reconciliation Commission’s 94 Calls to Action, National Post (Jun 05, 2021), https://nationalpost.com/news/much-work-remains-on-the-truth-and-reconciliation-commissions-94-calls-to-action.

[52] Lauren van Schilfgaarde & Brett Lee Shelton, Using Peacemaking Circles to Indigenize Tribal Child Welfare, 11 Columbia J. of Race & Law, Vol. 11, No. 3, 24 (June 2021).

[53] The Truth and Reconciliation Commission of Canada, supra note 1, at 1.

[54] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 1.

[55] Connors, supra note 33.

By Tribal Law Journal Blog

The Tribal Law Journal was established in fall 1998 for the purpose of promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. The internal law of indigenous nations encompasses traditional law, western law adopted by indigenous nations, and a blend of western and indigenous law. Underscoring this purpose is the recognition that traditional law is a source of law.

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