6.3.1 Voice and Advocacy

In recent decades, investigations into historical abuse have been established after the efforts of individual victim-survivor narratives, grassroots movements, media investigations, the scrutiny of international human rights organisations, and the work of activists and academics.Footnote ³⁶ In Ireland, the Magdalene Laundries inquiry was established only after successful submission from advocacy organisation Justice for Magdalenes to the UN Committee against Torture.Footnote ³⁷ Public pressure has typically led to the establishment of inquiries only where governments conclude that the issue constitutes a crisis ‘too large, complex, or controversial to be handled through the usual political mechanisms’.Footnote ³⁸ Nonetheless, state or church decisions to accede to such pressure can also be framed in their self-interest, with a desire to re-establish legitimacy.Footnote ³⁹

Upon establishment, inquiries may engage with significant episodic interaction with survivors and advocacy groups. In Ireland, several inquiries reference consultation processes in their establishment and operation.Footnote ⁴⁰ Advocacy organisation Justice for Magdalenes engaged in an extensive and sophisticated campaign throughout the Magdalene Laundries inquiry to shape its foundation, processes, and outcomes.Footnote ⁴¹ Recently regarding the mother and baby home inquiry, the Clann project developed a shadow report and lobbied the inquiry extensively.Footnote ⁴² In the United States, clerical abuse prosecutions and litigation, including grand jury investigations, resulted in the expansion of victim-survivor representative organisations such as Survivor Network of Those Abused by Priests (SNAP).Footnote ⁴³ State and local level truth commissions sought to engage extensively with survivors.Footnote ⁴⁴

In Canada, negotiators establishing the TRC on residential schools emphasised the need to focus on victims,Footnote ⁴⁵ and the Commission was informed in its work by a formal survivors committee.Footnote ⁴⁶ In establishing the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG inquiry), the government engaged in pre-inquiry consultation with thousands of stakeholders for a year, to define the inquiry terms of reference and engaged in an ongoing process with an Elders and Grandmothers Circle.Footnote ⁴⁷ As a result, there was increased emphasis on the root causes of violence against women and girls and cultural violence in the final terms of reference.Footnote ⁴⁸ In Australia, both the Bringing Them Home inquiry and the Royal Commission into Institutional Responses to Child Sexual Abuse were mandated to consult widely.

In the UK, the Independent Inquiry into Child Sexual Abuse (IICSA) established both a Victim-Survivors Consultative Panel and Victim and Survivors’ Forum, with the former intended to guide the inquiry conduct and the latter as a site for survivors to be consulted and updated regularly on inquiry processes. In the Hart inquiry in Northern Ireland, victims achieved an extension to the Historical Institutional Abuse Inquiry (HIAI) timeframe from 1945 to 1922.Footnote ⁴⁹ Lundy and Hamber suggest such consultation served to legitimate the inquiry ‘rather than fully address victim needs or shape the Inquiry in the way they wanted’’.Footnote ⁵⁰ Extensive victim-survivor consultation guided the subsequent Truth Recovery Panel process to inform the design of any inquiry into Magdalene Laundries and mother and baby homes in Northern Ireland.Footnote ⁵¹ Consultation with survivors is likely to reflect the first dimension of power, as an interactive exercise of agency between state officials and survivors and advocates. A failure to consult survivor voices throughout an inquiry design, process, and outcomes is likely to serve as a site of epistemic injustice as survivors may feel unheard. However, even if repeated over time, without more profound changes it is unlikely to change the structure of state–survivor relationships.

6.3.2 Commissioners

Inquiries derive their legitimacy in part from their leaders’ moral authority and competence.Footnote ⁵² The majority of historical abuse inquiries appointed experts, usually legal commissioners, and usually solely by executive government decision. This can have the effect of re-enforcing an inquiry as a site of perceived authority.Footnote ⁵³ In Ireland, inquiry chairs and members have largely been judges, with no meaningful effort to include victim-survivor representatives or involve survivors in the selection of commissioners. The original Chair of the Commission to Inquire into Child Abuse (CICA), Justice Mary Laffoy, resigned in 2003, because of an alleged lack of government cooperation.Footnote ⁵⁴

In Australia, the Royal Commission retained its six commissioners and its lead counsel, including a former child migrant and an Aboriginal child psychiatrist, reflecting significant stability and continuity over its operations.Footnote ⁵⁵ The Bringing Them Home inquiry was led by human rights experts, with several Indigenous women appointed as co-commissioners and appointed an Indigenous Advisory Council with nationwide representation.Footnote ⁵⁶ In the UK, IICSA saw three chairs and its lead counsel all resign by the end of 2016 amid much public criticism.Footnote ⁵⁷ The Scottish Child Abuse inquiry faced similar challenges, including the resignation of its chair and inquiry panel.Footnote ⁵⁸

The Canadian TRC appointed its three commissioners after a process of nomination from government, victim-survivor representative organisations, churches and Aboriginal organisations, and in consultation with the Assembly of First Nations but had two resignations within its first year.Footnote ⁵⁹ The MMIWG inquiry appointed five commissioners after a pre-inquiry consultation identified the need for a majority of Indigenous women commissioners, expert in law and research.Footnote ⁶⁰ Zvobgo and Posthumus note that US truth commissions have largely struggled to recruit members from diverse backgrounds, despite examining racial violence and injustice. Commissions in Maine and California are exceptional, with open application processes for the role of commissioners.Footnote ⁶¹ The dominance of expert commissioners does not impugn the good faith of commissioners but rather reflects an unwillingness to cede power or authority from central state and expert structures to those historically marginalised. Efforts to involve victim-survivors in appointment processes could challenge existing power structures and pursue an emphasis on survivors’ lived experience as a form of epistemic and ontological justice.

6.3.3 Mandate

Mandates can be assessed along a number of axes: temporal, geographical, and subject matter involved. Each axis can divide an inquiry from broader continuities of historical-structural injustices, but this is necessary to enable a feasible inquiry, especially if attempting a forensic style analysis. First, among the longest temporal scopes are the Canadian TRC (1883–1996) and the ongoing Scottish Child Abuse inquiry (from within living memory until 2015).

Other inquiries have incorporated assessment of both non-recent and contemporary forms of harm. This is especially valuable as it can demonstrate the continuities and reproductions of historical-structural injustices. The UK IICSA inquiry and Canadian MMIWG inquiry could examine both non-recent and contemporary abuse. In Australia, the Victoria Child Abuse inquiry, Bringing Them Home report, and the Royal Commission into Institutional Responses to Child Abuse examined both historical and contemporary abuse.Footnote ⁶² Gleeson and Ring suggest as the Royal Commission investigations were not constrained to the past, the process demonstrated ‘institutional child sexual abuse is not a historical relic, thereby complicating the idea of transitioning from the past that “truth commissions” tend to uphold’.Footnote ⁶³ Nonetheless, the focus of the Commission on sexual abuse was criticised for its exclusion of considering physical or emotional abuse in ‘care’ settings.Footnote ⁶⁴

Second, several inquiries were geographically limited at sub-national levels, with regional inquiries in Australia, Canada, and the United States. The significant partisan political division in the US Congress and Senate informs the lack of national-level inquiries in recent years.Footnote ⁶⁵ Sherrilyn Ifill notes sub-national commissions could be valuable in interrogating local and community level responsibility for lynching as a collective offence.Footnote ⁶⁶ In Ireland, inquiries into diocesan child sexual abuse did not have a national mandate. The Holy See has not engaged in any public inquiry process regarding the global phenomenon of clerical sexual abuse, but instead national- and state-run inquiries pre-dominate the assessment of church child sex abuse. Only investigations into child migration have considered transnational dimensions of historical abuse in both Australia and Northern Irish inquiries.

Third, the subject mandates tend to be limited to specific forms of abuse, such as child sexual abuse or by institution involved. Some inquiries have limited their investigations to a sample of potentially widespread or systemic harms over several decades. In Ireland, sampling of allegations by CICA was heavily criticised by survivor groups as providing only a partial picture of abuse.Footnote ⁶⁷ The mandate of the McAleese inquiry was limited to the examination of state involvement in the operation of the laundries, excluding an assessment of individual behaviour or allegations.Footnote ⁶⁸ Corby et al note that the majority of the contemporaneous investigations of child abuse in the United Kingdom addressed the physical abuse of children only, with a shift in focus since the 1990s to also address sexual abuse.Footnote ⁶⁹ The Scottish Child Abuse, the Northern Irish HIAI, and IICSA for England and Wales have addressed abuse in both secular and religious institutions.

The Canadian TRC examined physical sexual abuse and neglect in residential schools but did not have a mandate to address other and ongoing forms of harms to Indigenous peoples arising from settler colonialism. Luoma suggests this limitation enabled Canada to position wrongdoing against Indigenous peoples as a limited historical mistake.Footnote ⁷⁰ In contrast, the mandate of the MMIWG inquiry extended to assessing the causes of all forms of violence against Indigenous women and girls in Canada, including its underlying social, economic, cultural, institutional, and historical causes.Footnote ⁷¹ This enabled the inquiry to address ongoing, structural, and cultural harm in its settler colonial structure.Footnote ⁷² Several abuses have not been officially investigated, such as slavery, Jim Crowera racially motivated violence in the United States, the legacy of the British Empire, a nationwide study of child sexual abuse in the United States, or the role of Magdalene Laundries in jurisdictions outside Ireland.

6.3.4 Powers

Historical abuse inquiries have typically had limited, if any, powers to compel evidence, witnesses, and testimony. The powers that are assigned to investigations may also inhibit or preclude the use of gathered evidence in criminal or civil cases, with use immunity present in the approach of several jurisdictions. Inquiries are often prohibited from naming any individual accused of abuse unless the identity ‘has already been established through legal proceedings, by admission or by public disclosure by that individual’.Footnote ⁷³ In Ireland, religious orders challenged the potential naming of offenders in CICA,Footnote ⁷⁴ with the result that in its final report, even convicted abusers were given a pseudonym.Footnote ⁷⁵ This outcome frustrated Irish victims, who viewed it as the continued protection of perpetrators.Footnote ⁷⁶ The limitations on naming alleged perpetrators in truth commissions are usually in contexts where the threat of reversion to violence is plausible. Matt James notes that the Canadian context lacks any such comparable considerations that would make such a proscription justifiable.Footnote ⁷⁷ In contrast, the Australian Royal Commission had a wide range of powers, including the power to compel the production of documents, and require witnesses to answer questions, even those that might incriminate them and to refer matters to the police and other authorities, even though its evidence is inadmissible in civil and criminal trials. Limited inquiry powers reflect their political nature, framed by law but limited by design in potential legal consequences.

6.4.1 Statement Taking

Victim-survivor testimony is the defining feature of institutional abuse inquiriesFootnote ⁷⁸ and is a key opportunity for survivor agency in the inquiry. It is also a site where significant emotion may be experienced, with high risks of re-traumatisation.Footnote ⁷⁹ Katie Wright has argued that the Bringing Them Home and Lost Innocents and Forgotten Australian inquiries treated survivor testimony and emotional experiences well, as survivors welcomed the opportunity to have their voices heard.Footnote ⁸⁰ She notes: ‘A psychologically infused therapeutic ethos legitimised the experience of trauma and provided a framework and a language for understanding and explaining the ongoing and often intergenerational legacies of childhood abuse and neglect’.Footnote ⁸¹ The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) approach to survivor testimony was informed by an ‘empathetic trauma-informed approach that drew on contemporary understandings of psychological injury’.Footnote ⁸² In addition, its private hearings provided rich but confidential qualitative research from survivors enabling a more accurate account of abuse experienced by survivors and offering a basis for better future prevention.Footnote ⁸³ This aligned with the stated wish of many survivors to tell the Commission about their ideas for policy and social change.Footnote ⁸⁴ The RCIRCSA also curated a ‘Message to Australia’, asking survivors to describe what they wanted Australian society to know about their experience and the need for change. However, Gleeson and Ring note that multiple prior Australian inquiries had the result that limited numbers of Aboriginal people provided testimony in the belief that they had already provided testimony to the state and wanted to avoid the risk of re-traumatisation.Footnote ⁸⁵

The Canadian TRC dedicated a volume of its report, Survivors Speak, to testimony of former residents, including experiences of abuse.Footnote ⁸⁶ Koggel affirms the value and potential of the approach taken by the TRC and its report: ‘Sharing, remembering, and legitimizing Indigenous collective interpretative resources are steps in addressing ethical loneliness as moral and political abandonment. Another step is epistemological and political: understanding and addressing both testimonial and hermeneutical injustices that come from not being heard’.Footnote ⁸⁷ In contrast, Ronald Niezen suggests that the TRC essentialised individual survivor experiences to create a master narrative that emphasised loss and suffering, but also a positive story of healing.Footnote ⁸⁸ In terms of emotions, Anne-Marie Reynaud concurs that the TRC discouraged survivor anger and emphasised survivor health and healing.Footnote ⁸⁹

In Ireland, Carol Brennan concludes that the Irish state harmed victim-survivors,Footnote ⁹⁰ by disabling ownership of the process and compelling compliance with a purportedly therapeutic model.Footnote ⁹¹ Sinead Pembroke notes that the majority of survivors she interviewed felt CICA was non-transparent and ‘triggered feelings of shame and stigma in relation to their time in the institution’.Footnote ⁹² Pembroke concludes that CICA should have integrated greater survivor participation into its investigations, especially recognising survivors’ stated desire for accountability and prosecutions of abusers.Footnote ⁹³ After initially resisting hearing survivor testimony at all, the McAleese committee ultimately did so but exacerbated the gendered forms of harm experienced by victim-survivors of the laundries by challenging the veracity of victim-survivor testimony.Footnote ⁹⁴ Máiréad Enright and Sinéad Ring emphasise that the state’s mistreatment of the victim-survivor as a source of knowledge amounts to a fresh form of epistemic injustice, reflecting both testimonial injustice in responding to historical abuse in manners that protect the state and hermeneutical injustice in ‘privileging the state’s sovereign ways of knowing and determining historical injustice’.Footnote ⁹⁵

The recent Mother and Baby Homes Commission operated with an Investigative and Confidential Committee. The Confidential Committee report itself undermines the credibility of victim-survivor testimony, suggesting it was in part contaminated by media coverage and some witnesses were ‘clearly incorrect’.Footnote ⁹⁶ A survivor who recorded their engagement with the Confidential Committee was able to evidence multiple instances where her statement had been inaccurately included in the report.Footnote ⁹⁷ The Commission’s final report made several findings contrary to the stated lived experience of survivors. For instance, the Commission ‘found very little evidence that children were forcibly taken from their mothers; it accepts that the mothers did not have much choice but that is not the same as “forced” adoption’.Footnote ⁹⁸ As a result, the report was rejected with significant criticism in the national media, and by advocacy organisations and victim-survivors.Footnote ⁹⁹ The Commission contrasted strongly with the civil society Clann report, which provides a constitutional and human rights analysis of the abuses documented by survivors in their written statements,Footnote ¹⁰⁰ such as gender and socio-economic discrimination, stigma, racism, forced adoption, illegal adoptions, arbitrary detention, forced labour, physical and psychological abuse, punishments, neglect, and the deaths of infants in mother and baby homes and related institutions.Footnote ¹⁰¹

Similarly, in the UK, Colton et al’s survey of survivors who had given evidence before early inquiries found a high level of dissatisfaction, with participants perceiving the investigations as driven by ‘the requirements of the criminal justice system, with the needs of victims/survivors and their families accorded second priority’.Footnote ¹⁰² Corby et al note the adversarial nature of traditional governmental inquiries as quasi-judicial in nature, with the cross-examination of witnesses despite their potential vulnerabilities or traumatisation.Footnote ¹⁰³ Regarding the Hart inquiry, Patricia Lundy has noted the challenging and damaging experiences of survivors in giving testimony.Footnote ¹⁰⁴ Hamber and Lundy note that more than half of the victims interviewed thought the private testimony given to that inquiry’s Acknowledgment Forum was a positive experience where they were believed and acknowledged, though a sizeable number felt exposed or vulnerable after attending the forum.Footnote ¹⁰⁵ It remains to be seen whether the ongoing IICSA and Scottish Child Abuse inquiries will provide a better experience in the eyes of survivors. It is expected survivors will be heard from and listened to in a modern inquiry. However, in providing testimony, victim-survivors may legitimate an inquiry that nonetheless does not validate their testimony or provide any meaningful healing or therapeutic function for survivors. Although Australia and Canada demonstrate evidence of good practice, other jurisdictions reflect mixed or damaging results. Engagement with public inquiries thus presents a risky process for victim-survivors.

6.4.2 Public Hearings

Several inquiries hold public hearings as part of an investigative process. The Ryan Commission remains the only Irish inquiry to hold public hearings. In the United States, grand jury investigations have typically not provided for public hearings. The Australian Forde inquiry justified the exclusive use of private hearings due to the risk of prejudicing contemporary litigation and criminal proceedings.Footnote ¹⁰⁶ The RCIRCSA held several public hearings, assessed on ‘whether or not the hearing would advance an understanding of systemic issues and provide an opportunity to learn from previous mistakes’.Footnote ¹⁰⁷ Individuals who could be adversely affected by evidence were entitled to respond. The Canadian TRC, MMIWG inquiry, and UK IICSA inquiry have held extensive public hearings. The TRC engaged in 7 national events and held 238 days of local hearings in 72 communities across Canada.Footnote ¹⁰⁸ At the MMIWG inquiry, 468 family members and survivors of violence shared their experiences and recommendations at 15 community hearings.Footnote ¹⁰⁹ To date, IICSA has held 325 days of public hearings. The Hart inquiry’s public hearings were criticised by survivors as intimidating, victimising and creating the feeling they were on trial.Footnote ¹¹⁰ Public hearings represented a site of epistemic injustice, with survivors unable to exercise control over procedures and believing that they ‘struggled to be heard’.Footnote ¹¹¹ Public access to testimonies through these hearings was disempowering for the survivors involved.Footnote ¹¹²

6.4.3 Role of Alleged Perpetrators

Although victim-centred, inquiries may also offer a space to hear from alleged perpetrators and responsible institutions, though this has been limited in practice. Hamber and Lundy note that some survivors were concerned and intimidated by the presence of alleged perpetrators, members of institutions, and religious orders at the HIA inquiry in Northern Ireland.Footnote ¹¹³ In the Greensboro Truth Commission in the United States, many felt that the failure of more perpetrators to participate or disclose details about law enforcement complicity in the attack hindered a broader reconciliation in the community.Footnote ¹¹⁴ In Canada, TRC Commissioner Marie Wilson noted that the absence of those who represented the institutions responsible for the crimes in the activities of the Commission was a source of a sense of injustice and incompletion for survivors.Footnote ¹¹⁵ Ronald Niezen contends perpetrators are abstracted and reified in inquiries: ‘they are abstract (perceived as inhuman), represent the overall harm and, once labelled, are excluded from “truth telling” because their identification as perpetrators denies their legitimate speech’. In his view, this makes the origins of mass crimes more difficult to identify, excluding ‘the institutional and policy driven sources of that suffering and the people who acted on them, sometimes in the belief that they were doing good’.Footnote ¹¹⁶

6.5.1 Findings

An inquiry’s final report will serve as its most enduring legacy. Sköld notes that despite diverse national contexts, informants have told similar stories regarding physical violence, emotional violation, sexual abuse, exploitation, and neglect in the twentieth century.Footnote ¹¹⁷ Wright concurs that ‘inquiry after inquiry has found that care did not meet either the legal or professional standards of the day, that physical and sexual abuse was common, and that neglect and psychological and emotional abuse were pervasive’.Footnote ¹¹⁸ Several inquiries recognise a widespread scale of abuse, particularly child sex abuse, but were unable to offer a comprehensive quantum of its scale.Footnote ¹¹⁹

Multiple inquiries affirmed that complaints of wrongdoing were often ignored, accusers condemned, and perpetrators protected or moved between institutions or churches.Footnote ¹²⁰ Numerous inquiries demonstrate that state and church authorities often knew or should have known about abuses but failed to create or implement any meaningful oversight of staff or protection of detained women and children.Footnote ¹²¹

In Ireland, CICA found that physical, sexual, and emotional abuse was endemic and pervasive in industrial and reformatory schools, and found poverty as a driver for children’s entry into the school system.Footnote ¹²² It recognised the significant and ongoing impact of abuse and institutionalisation on the lives of survivors.Footnote ¹²³ However, Gleeson and Ring note the report did not investigate the state’s responsibility for its lack of effective regulation of industrial schools or its failure to protect children despite evidence of abuse.Footnote ¹²⁴ Ring and Enright conclude: ‘By subjecting victim-survivors to damaging processes, by substituting partial official histories for their testimony, and by censoring access to the archives of the bodies created to learn from the past, the state has co-opted victim-survivors’ primary source of power: their unique knowledge of Ireland’s recent history of institutional abuse of children and women’.Footnote ¹²⁵ In Northern Ireland, the Hart inquiry found ‘evidence of systemic failings’ in homes and other residential institutions run by the state, local authorities, churches, and charities, with ‘evidence of sexual, physical and emotional abuse, neglect and unacceptable practices’.Footnote ¹²⁶ In general, victims welcomed the report and its findings.Footnote ¹²⁷

In settler democracies, the finding of whether abuses against Indigenous peoples constituted genocide remains highly controversial. The Maine Wabanaki TRC report concluded that cultural genocide was ongoing due to the disproportionate and unequal treatment of Native children in the welfare system in Maine since the 1960s, in a context of institutional racism in state systems, historical trauma among Native peoples, and ongoing contestation over Native sovereignty and jurisdiction.Footnote ¹²⁸

The Australian Bringing Them Home report concluded that ‘[t]he policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled “genocidal” in breach of binding international law’.Footnote ¹²⁹ However, the report is criticised for not including a broader finding of genocide.Footnote ¹³⁰ It considered violations of native title rights as collective or individual property rights, or the right to inhabit traditional lands.Footnote ¹³¹ The Australian government criticised the validity and methodology of the report, claiming that it overestimated the number of Aboriginal children removed from their homes.Footnote ¹³² Conservative historians rejected its finding of genocide.Footnote ¹³³

The Canadian TRC found that the establishment and operation of residential schools were a central element of a policy of assimilation of Aboriginal peoples and was best described as ‘cultural genocide’, meaning the destruction of those structures and practices that allow the group to continue as a group.Footnote ¹³⁴ This approach may have been designed to avoid a legal debate about the application of the UN Convention on Genocide, distracting from an emphasis on survivor experience.Footnote ¹³⁵ Although scholars had been drawing links between residential schools and the broader project of settler colonialism as a form of genocide before this finding,Footnote ¹³⁶ Woolford and Benvenuto suggest that in prior scholarly or popular understandings, genocide may have been reduced to group destruction as a form of mass murder.Footnote ¹³⁷ They express concern that examining genocide on pre-existing and national terms will lose much of the nuance in the different regional and international forms of harm.Footnote ¹³⁸

In contrast, the MMIWG inquiry concluded that the systemic violence it documented amounts to an ongoing, race-based genocide against Indigenous peoples, especially against women, girls, and 2SLGBTQQIA individuals.Footnote ¹³⁹ In addition, it documented a range of violations of Indigenous cultural rights, such as the seizure of traditional lands; expropriation of cultural property; forcible removal of Indigenous children from their families; and suppression of Indigenous histories, myths, and cultures.Footnote ¹⁴⁰ Luoma values this approach rather than relegating cultural rights violations to an inquiry’s historical context alone.Footnote ¹⁴¹ The supplemental legal report to the MMIWG report understands genocide in Canada as both a direct act and a failure to prevent harms.Footnote ¹⁴² Özsu notes that this approach extends beyond the Genocide Convention and enables a framing of genocide as spanning decades through processes of cultural and colonial destruction, rather than a paradigm of a brief intense period of mass murder alone.Footnote ¹⁴³ Such an approach is more contentious than a conservative interpretation of genocide but is one that recognises the multiple forms of systematic violence in human history and present that have been designed to destroy peoples deemed ‘other’.

Several inquiries identify common causes of historical abuses. First, non-white races, Indigenous peoples, women, and children were deemed inferior and othered through discriminatory, racist, patriarchal attitudes.Footnote ¹⁴⁴ The US Kerner Commission noted the trend in mid-twentieth-century United States towards reproducing white supremacy and structural inequality: ‘Our nation is moving toward two societies, one black, one white – separate and unequal’ and later ‘What white Americans have never fully understood – but what the Negro can never forget – is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.’Footnote ¹⁴⁵ These were significant findings in 1968 from a mainstream and establishment inquiry.Footnote ¹⁴⁶

Second, religious justifications amplified and framed historical abuses as salvation processes, for those deemed ‘other’.Footnote ¹⁴⁷ Third, members of religious organisations enjoyed significant authority, trust, and respect during the period of historical abuse, leading to significant deference and limited oversight and inspections.Footnote ¹⁴⁸ Fourth, several inquiries consider a significant cause of abuse to be a lack of effective governance and oversight to prevent abuse, in both secular and religious contexts.Footnote ¹⁴⁹ Paul Michael Garrett notes that the implication of this finding may be that ‘problems could be rectified if a business model were adopted to promote better self-governance’.Footnote ¹⁵⁰ Reoccurring findings that religious leadership relocated offenders and coerced victims into silence mean that it is impossible to maintain that abuse was exceptional but instead reflects the priority given to protecting the church’s reputation, above the best interests of the child.Footnote ¹⁵¹ Several authors and inquiries suggest that these findings require interrogating the perception of clergy and religious as God’s representatives on earth,Footnote ¹⁵² and the contribution of Christian theology to abuse,Footnote ¹⁵³ particularly regarding sex, sexuality, and marriage.Footnote ¹⁵⁴

In contrast, the US Causes and Context report noted that the increase in clerical abuse until the late 1970s and the sharp decline by 1985 could be attributed to ‘the rise in other types of “deviant” behavior, such as drug use and crime, as well as changes in social behavior, such as an increase in premarital sexual behavior and divorce’, and noted, remarkably, that, as features of religious life such as a male and celibate priesthood were constant during this period, they could not be causes of abuse.Footnote ¹⁵⁵

Finally, some inquiries directly address the impact of national myths as causes of historical-structural abuses. Despite its mandate on residential schools alone, the Canadian TRC expressly repudiates the myths of terra nullius, the Doctrine of Discovery, and civilising mission of imperial nations and Christian churches.Footnote ¹⁵⁶ The Royal Commission on Aboriginal Peoples (RCAP) challenged the contradiction between benevolent Canadian peacemaker myths and the treatment of First Nations peoples: ‘while we assume the role of defender of human rights in the international community, we retain, in our conception of Canada’s origins and make-up, the remnants of colonial attitudes of cultural superiority that do violence to the Aboriginal peoples to whom they are directed’.Footnote ¹⁵⁷

In Australia, the Royal Commission into Aboriginal Deaths in Custody noted historical mistreatment of Aboriginal people was predicated on a racist sense of white superiority,Footnote ¹⁵⁸ while the Bringing Them Home report noted that Australia’s assimilation policies were based on the idea that there was nothing of value in Indigenous culture.Footnote ¹⁵⁹ In the Lost Innocents reports on child migration, the desire to maintain links with Britain, to ensure a white Australia, and competition between Christian denominations to convert children inform the child migration and ‘rescue’ processes.Footnote ¹⁶⁰ The Forced Adoption report notes the hostility of society to ‘individuals and families who did not fit the idealised family unit and the ‘right’ of all legitimate couples to have children’.Footnote ¹⁶¹ The RCIRCSA noted the continuity and perennial nature of child sex abuse: ‘it is a mistake to assume that sexual abuse in institutions will not continue to occur in the future’.Footnote ¹⁶²

In addressing these issues, an inquiry may hope to contribute to altering national identity and myths,Footnote ¹⁶³ through changing public attitudes and awareness.Footnote ¹⁶⁴ However, Regan doubts the ability of a truth commission ‘to act as a catalyst for social change and reconciliation’ and may instead appropriate survivors’ pain in voyeuristic and colonising ways.Footnote ¹⁶⁵ Similarly, Chakravarti notes that although survivors may express intense emotions in engaging with inquiries, and may feel brief satisfaction when these emotions are validated, this remains ‘a poor substitute for the change in material conditions necessary for justice’.Footnote ¹⁶⁶ Instead the repudiation of ideas, no matter how damaging, is likely to need combining with material changes to the lives of victim-survivors and social structures to be an effective and legitimate form of social change.

6.5.2 Recommendations

If given a mandate to issue recommendations, inquiries have tended to recommend measures to address victim-survivor needs and to reform the relevant institutions or the state’s regulation of an affected population. In Ireland, CICA issued ninety-nine recommendations, including a memorial for victim-survivors of residential school abuseFootnote ¹⁶⁷ and the continuation of family tracing services for survivors of residential schools.Footnote ¹⁶⁸ It recommended that religious orders consider how they debased their Christian ideals through tolerance of abuse and its cover-up.Footnote ¹⁶⁹ Unique in Ireland in having explicit and independent recommendation, implementation, and monitoring powers, CICA confirmed in 2014 at its conclusion that ninety-four of ninety-nine recommendations had been implemented.Footnote ¹⁷⁰ Other Irish inquiries into clerical sexual abuse (Ferns, Murphy, and Cloyne) did not issue recommendations due to mandate limitations. The McAleese inquiry into Magdalene Laundries led to a state apology and a redress scheme for victim-survivors, discussed in later chapters.

In England and Wales, both contemporary and historical abuse inquiries have made similar recommendations regarding safeguarding and pre-employment vetting which have not always been implemented.Footnote ¹⁷¹ Corby et al note that often the delay in issuing recommendations caused by a long inquiry process after the initial outbreak of a scandal can inhibit pressure for their implementation and reform.Footnote ¹⁷² David Howe notes that public inquiries can often reflect a bureaucratic procedural response to a social crisis,Footnote ¹⁷³ which can have a deadening effect on changing public attitudes and behaviour. In contrast, the Macpherson report examined the Metropolitan Police Service’s (MPS) investigation of the 1993 racist murder of 18-year-old Stephen Lawrence by a group of five white men. The report concluded institutional racism was endemic in the MPS, and its seventy recommendations led to not only significant policy changes in British policing but also a major public debate about racism in Britain.Footnote ¹⁷⁴ However, Lotem notes that the report confined its consideration of racism to the police, with the result that ‘racism became a matter of communities and policing rather than historical continuities’,Footnote ¹⁷⁵ and missed the opportunity to frame these contemporary challenges as the reproduction of broader historical-structural issues. Given the single incident focus of the inquiry, this is perhaps not surprising.

In Australia, a review of the implementation of recommendations found that recommendations ‘most likely to be implemented related to administrative systems, with those most likely to be fully or partially implemented pertaining to legislation’.Footnote ¹⁷⁶ Four main factors emerged as barriers to implementation: ‘practical constraints, organisational culture, structural constraints, and recommendations being too narrow or prescriptive’.Footnote ¹⁷⁷ The recommendations of the Lost Innocents and Forgotten Australian reports were themselves subject to a separate report in 2009 assessing the progress of implementation,Footnote ¹⁷⁸ noting at best a limited and variable implementation across the Australian states and territories. The Royal Commission into Aboriginal Deaths in Custody made over 400 recommendations, implementation of which was monitored for five years, but despite this, Aboriginal deaths in custody have subsequently almost tripled in likelihood.Footnote ¹⁷⁹ The RCIRCSA made 409 recommendations to government and institutions, regarding child protection, information sharing and record keeping, and support and therapeutic services for survivors, including eighty-four recommendations on redress. These recommendations led to the National Redress Scheme discussed in Chapter 8. The national government response accepts, or accepts in principle, 104 of these 122 recommendations with the remaining 18 recommendations listed as being ‘for further consideration’ or ‘noted’.Footnote ¹⁸⁰

In Canada, the government tried to ignore the RCAP report and did not endorse any of its 440 recommendations on increased spending on housing, education, and training for First Nations peoples and enhanced sovereign status.Footnote ¹⁸¹ The RCAP made several recommendations regarding investigation of treatment of Indigenous children in residential schools that have effectively if not directly been implemented through the Indian Residential Schools Settlement Agreement (IRSSA) and TRC processes. The TRC’s final report calls to action under two high-level headings: ‘legacy’ and ‘reconciliation’. Legacy addresses the consequences of colonialism, under the headings of child welfare, education, language and culture, health, and justice.Footnote ¹⁸² ‘Reconciliation’, by contrast, includes fifty-two calls to action, ranging from the obligations arising under specific legal instruments to considering reconciliation as applied to museums, media, sport, and business, among others.Footnote ¹⁸³ These are discussed further in Chapter 10. In Canada, Matt James suggests the TRC may have functioned to emphasise the personal benefit to survivors in participating, while minimising the potential for the TRC to address ongoing systemic injustices affecting Indigenous peoples.Footnote ¹⁸⁴ James asks whether a truth commission might amount to a ‘politics of distraction’, yet another exercise of ‘affirmative repair’ or ‘settler magic’ aimed at staving off demands for the restitution of stolen lands.Footnote ¹⁸⁵ In contrast, Christine Koggel notes the potential of the Canadian TRC report to point beyond legal- and policy-specific recommendations: ‘What is significant about the TRC final report is that it reveals layers of relationships and the conditions for societal transformation that are missed when the account is presented from the perspective of the state and its laws and institutions’.Footnote ¹⁸⁶

The MMIWG final report concludes with 231 ‘Calls for Justice’, human-rights-based recommendations to end and resolve the genocidal violence against Indigenous women, girls, and 2SLGBTQQIA individuals. However, to date, little progress has been made. The commissioners recently marked the one-year anniversary of the final report by decrying ‘deafening silence and unacceptable inaction from most governments’.Footnote ¹⁸⁷

In the United States, the Kerner Commission issued recommendations which remain relevant for black Americans today: (1) an end to de facto segregation in housing, (2) affordable housing, (3) jobs creation, including in police departments, and (4) the expansion of social assistance programmes.Footnote ¹⁸⁸ However, President Johnson ignored the Commission’s ambitious and costly recommendations,Footnote ¹⁸⁹ in a context where he was seeking re-election and continuing to fight an expensive war in Vietnam.Footnote ¹⁹⁰

7.3.1 Litigation and Agency

Litigation represents a site for significant agency by survivors seeking to assert their rights or allege their experiences of harms. However, several features of litigating regarding non-recent harms will affect this agency. First, criminal trials of non-recent abuses take place in a context ‘disconnected from the normal matrix of physical and circumstantial detail’,Footnote ¹³ associated with an isolated criminal offence close to the period of investigation or trial. Fair trial concerns are thus especially prominent for historical abuses, which will be impacted by the availability of documentary evidenceFootnote ¹⁴ and limited by the deaths and old age of alleged perpetrators.Footnote ¹⁵

Second, the distinctive legal personality of church dioceses and religious orders, which will often be unincorporated associations, or in the case of a bishop a corporate sole, or where the assets are held in a trust, may make it difficult for survivors to sue the correct defendant.Footnote ¹⁶ Canon law concentrates executive, legislative, and judicial power in diocesan bishops, until recently giving individual bishops discretion and authority to respond to allegations of sexual abuse.Footnote ¹⁷ However, recent developments in Canada, the United Kingdom, and Ireland have allowed for dioceses and religious orders to be sued,Footnote ¹⁸ with the most recent changes in Western Australia enabling survivors to sue current holders of religious institutions for historical abuse cases and access the assets of related trusts and corporations for the purposes of satisfying judgments.Footnote ¹⁹

Third, attempts to litigate may be met with aggressive tactics employed by state or church institutions in resisting allegations of historical abuses, including delayed compliance with discovery and interrogations of plaintiffs’ personal histories.Footnote ²⁰ Jo Renee Formicola notes that across multiple dioceses, church leaders would offer significant financial settlements to survivors in exchange for confidentiality and secrecy, allegedly to protect not only the identity of victims but also the reputation of the church and alleged perpetrators.Footnote ²¹ This had the effect of precluding one survivor from knowing about other allegations in the diocese or against their perpetrator. Finally, across several jurisdictions, as discussed below, historically canon law was not an effective form of justice for survivors, in large part because its own standards were not even implemented regarding child abuse cases, with few if any canon trials taking place for contemporary allegations of non-recent child sex abuse.Footnote ²² This combination of factors suggests it has been challenging for survivors to assert their rights and allege wrongdoing against state and church actors, even where the harm was criminal or illegal when it took place. In addition, structural factors compound these limitations to litigation.

7.3.2 The Structure of Litigation

The use of litigation for historical-structural injustices remains particularly challenging due to a number of structural features. First, to bring civil litigation regarding non-recent harms, victim-survivors must overcome the law of limitation, which allows a plaintiff a specific amount of time from a specified date within which to bring an action against a defendant. Ireland has the most restrictive limitation regime in the common law world.Footnote ²³ The lack of a general discretionary judicial power in the Irish limitation regime contrasts with the approach in the United KingdomFootnote ²⁴ and extended approaches in Canada, and with the United States.Footnote ²⁵ However, in Canada, limitation regimes have denied Indigenous peoples the capacity to litigate in several cases outside of the context of sexual abuse.Footnote ²⁶ In Australia, the Royal Commission to Investigate Institutional Responses to Child Sexual Abuse concluded that ‘current limitation periods are inappropriate given the length of time that many survivors of child sexual abuse take to disclose their abuse’.Footnote ²⁷ The Australian States of Queensland and Western Australia recently retrospectively removed the limitation period for child sex abuse cases, enabling a case to be brought at any time in a person’s life.Footnote ²⁸

Second, given the scale of historical abuses, there are a large number of potential litigants, which suggests a benefit to using class actions in civil litigation. In a class-action lawsuit, one party sues as a representative of a larger ‘class’ of people, reducing the cost to individual plaintiffs and the need for repetitive hearings. In jurisdictions with class-action mechanisms, this structure may operate as a form of survivor empowerment, enabling survivors to share the risks and costs of litigation. Third, unlike other forms of litigation, canon law largely operates in secret. It is only in early 2020 that Pope Francis ordered the removal of the ‘pontifical secret’, hiding the existence of canon law trials from national law enforcement.Footnote ²⁹ Until then, no mandatory reporting or cooperation with civil laws was required under canon law, despite repeated national inquiries and United Nations Human Rights Committees recommending the abolition of such secrecy.Footnote ³⁰ Formicola suggests that this structure emerged as successive popes were reluctant to accept the separation of church and state and instead emphasised the theological superiority of church teaching and law.Footnote ³¹ In their relationship to non-recent violence and to the widespread scale of abuse, the structure of civil litigation may both empower and constrain survivors’ ability to address their experiences of harm.

7.3.3 Accountability and Epistemic Injustice

Litigation may also represent a site of fresh epistemic injustice for victim-survivors or their families, where their knowledge may not be believed or acknowledged as true,Footnote ³² especially in contexts of limited corroborating evidence.Footnote ³³ Historically women and girls were often disproportionately disbelieved or blamed if they alleged sexual violence.Footnote ³⁴ Any delay in bringing a criminal complaint regarding non-recent abuse may be heavily scrutinised by a court, which has tended to address such delay by establishing whether post-traumatic stress disorder (PTSD) or repressed memory inhibited an individual from bringing a complaint.Footnote ³⁵ Such approaches frame survivor emotions as relevant only in medical terms and may neglect consideration of the broader political, cultural, and legal circumstances, where the alleged harm may have been authorised or condoned by the state. This approach creates an artificially receptive historical context that may deny victim-survivors access to courts for non-recent events and compound their experience of harm.

In contrast, civil liability could contribute to redistributing epistemic and ontological power, by reframing abuse that was once denied and not believed as injury and an abuse of power,Footnote ³⁶ and telling victim-survivors’ stories individually, publicly, and graphically.Footnote ³⁷ Timothy Lytton concludes that tort litigation reframed clerical child abuse: ‘Legal nesting fuelled public outrage, increasing impatience for real reform and making efforts to symbolically placate pro-reform constituencies harder. It also undermined the unquestioning trust and obedience of many Catholics that had been exploited by some to deflect allegations’.Footnote ³⁸ Similarly, reframing an issue of historical abuse as a present-day violation of human rights could offer a significant form of epistemic justice where it results in belief of survivors and responsibility for wrongdoing.Footnote ³⁹ However civil litigation can also remain a potential re-traumatising or marginalising process for victim-survivors.Footnote ⁴⁰ Research disagrees on whether there are sufficient therapeutic benefits to victim-survivors to overcome the potentially harmful or re-traumatising effects of engaging in litigation and the legal process.Footnote ⁴¹ Finally, cases involving Indigenous peoples can provide several instances of epistemic injustice where Indigenous forms of knowledge and identity are denied equal value or recognition in settler colonial legal systems.Footnote ⁴²

7.3.4 Accountability and Ontology

Finally, whether law condemns, condones, or is silent regarding historical-structural injustices will make a significant contribution to either reproducing harms in the present or meaningfully addressing the past. Chapter 2 demonstrated how colonisation, the transatlantic slave trade, or more recently, the process of the institutionalisation of the poor or of women and children were framed as either morally, legally, and religiously justified, or formed part of constituting the nation states that today are challenged to address their legacies of historical abuses. Child sexual abuse by priests, in contrast, was long historically prohibited, albeit with a highly defective system of penalisation and enforcement.

While prior investigations may hold historical legislation or governmental policy as morally or politically unacceptable in present day, separate legislative action would be required to criminalise such harms. Recognition of historical-structural injustice needs more than identifying individual perpetrators who violated pre-existing rules, it necessitates problematising historically accepted but now impugned standards. Several historical abuses were not aberrant violations of laws but instead were historically permitted or encouraged by law, reflecting an unjust baseline by contemporary standards.Footnote ⁴³ Mamdani distinguishes between violence that preserves the law and legal system, such as criminal law offences, and violence that makes the law, such as settler colonial violence or violence otherwise constitutive of the state: ‘A single-minded focus on identifying perpetrators leaves undisturbed the logic of institutions that make nation-building violence thinkable and possible’.Footnote ⁴⁴ As a result, such violence represents an ontological dimension of power.

Canon law also communicates a distinct set of values and world view. Kieran Tapsell describes clericalism as arising out of a theology that priests are ‘ontologically changed’, that is marked out by God through ordination as special people whose very nature has been changed and who are divinely destined to change the world.Footnote ⁴⁵ Byrnes suggests that the result is ‘preserving that indispensable church from scandal was perceived as the central obligation of their positions’.Footnote ⁴⁶ Nicholas Cafardi suggests that the Vatican remains pervasive in its use of a ‘bella figura’ (beautiful figure), that a good external appearance must be presented to the world.Footnote ⁴⁷

Specific forms of litigation also shape the presentation of historical abuses and contemporary responses to them. In civil liability, when the justifications for non-fault-based liability are interrogated, they create problematic narratives for legal responsibility and accountability regarding historical abuses: ‘If liability attaches irrespective of fault, it is no longer necessary for lawyers to probe into how the Church handled abuse cases, and whether it was guilty of negligence or worse’.Footnote ⁴⁸ For instance, Winter notes while vicarious liability cases ‘helped publicize the abuse endemic in Canada’s residential schools system, it was not a trial of that system itself’.Footnote ⁴⁹

As already noted, rights discourses and practices may serve as important sites for reimaging historical abuses in terms of victims’ rights and the duties of states to prevent and repair harms. However, early critical legal studies (CLS) scholarship suggested that rights litigation was part of a legal ideology that was compatible and the cause of the original oppression and injustice.Footnote ⁵⁰ In turn, such concerns were rejected by critical race scholars such as Patricia Williams and Kimberley Crenshaw. Williams asserted that while a CLS critique of rights as empty may be true for white communities, for black Americans, rights represented a site of black empowerment.Footnote ⁵¹ Similarly, Crenshaw argued that rights rhetoric had been a significant force in inspiring black communities to pursue radical reform.Footnote ⁵² For Seán Eudaily, ‘legal activism conceived as tactical resistance may lead to fundamental change in the epistemic, political, and subjective structures in which such practices are articulated’.Footnote ⁵³ While in some instances, rights may be viewed as compatible with existing forms of oppression, there may also remain potential for litigation to disrupt existing ontological orders and provide the basis for resistance and alternative conceptions of the past. As a result, rights litigation may be a site where national and religious myths are challenged, affirmed, or ignored.

7.3.5 Conclusion

This range of factors impact how law will address the initial number of allegations and instances of harm significantly. The criminal law truncates the continuities of harm across different forms and generations of historical abuse discussed in earlier chapters, focuses on allegations of breaching existing law within lived memory, and selects from them, subject to the evidential requirements of a fair trial. Civil law litigation may provide a basis for action against state or church institutions but may do so in a manner limited by the form of liability, the limitation regime, and the availability of suitable defendants, class actions, or affordable costs to victims. Canon law remains nebulous in its capacity to offer a victim-survivor-centred approach to addressing child sex abuse cases. Human rights law may offer the basis for empowerment for survivors and affected communities but, as explored below, will also be likely resisted in its implementation by governments. No single basis for litigation is therefore a panacea to addressing historical-structural injustices. Instead, in employing a range of litigation mechanisms, victim-survivors have demonstrated considerable resilience across the jurisdictions examined in the book in demanding accountability through litigation. Where such demands are not met, the entire enterprise of transitional justice may be undermined in its ability to address the past.

7.4.1 Ireland

Accountability for Irish historical abuses has focused almost exclusively on child sexual abuse. A 2002 documentary regarding clerical child sexual abuse in Dublin prompted a criminal investigation.Footnote ⁵⁴ The 2011 Murphy report considered that this investigation was ‘an effective, co-ordinated and comprehensive inquiry’.Footnote ⁵⁵ Between 1975 and 2014, there were 4,406 allegations of child sexual abuse by priests reported to church authorities and Gardai from across Ireland in non-residential settings. It resulted in ninety-five criminal convictions, based on a church compilation of figures.Footnote ⁵⁶ Only eleven criminal cases were forwarded to the Director of Public Prosecutions based on the Commission to Inquire into Child Abuse (CICA) report regarding abuse in child residential institutions.Footnote ⁵⁷

Several cases that proceeded to trial were ultimately unsuccessful on the grounds of a fair trial being impossible due to the delayed complaint.Footnote ⁵⁸ Sinéad Ring notes the approach of the Irish courts fostered ‘a simple narrative of the passive and traumatised victim paralysed by the domination of the abuser’ and precludes examination of how society kept victims silent for decades after the abuse.Footnote ⁵⁹ Support organisations for victim-survivors of child sexual abuse report that clients who engaged with criminal trials found the processes humiliating and re-traumatising.Footnote ⁶⁰ In addition to individual acts of child sex abuse, the Gardai considered charges for the offence ‘misprision of felony’, where a person who knew that a felony had been committed and concealed it from the authorities,Footnote ⁶¹ but no prosecutions arose for this offence.Footnote ⁶² Finally, there have been no recent criminal prosecutions related to Magdalene Laundries, mother and baby homes, or illegal adoptions.Footnote ⁶³

Colin Smith and April Duff identify several difficulties for victim-survivors of historical abuse in Irish civil litigation.Footnote ⁶⁴ As a smaller jurisdiction without the benefit of class actions, protective costs orders limiting potential financial cost to plaintiffs, or reform of Ireland’s restrictive statute of limitations, litigating historical abuse cases has proven highly problematic. Smith and Duff note a practice from state and religious defendants of ‘procedural delay in historic institutional-abuse cases [which] operates in favour of the defendants’.Footnote ⁶⁵ Despite a strong constitutional bill of rights, Ireland’s courts have not recognised violation of constitutional rights in the context of historical-structural abuses, likely owing to the procedural barriers restricting potential litigants. Enright and Ring conclude that the Irish state ‘has failed to reimagine or supplement frameworks of civil and criminal liability, leaving victim-survivors without adequate conceptual means to give public legal expression to their experiences or to establish new legal discourses of unashamed authority and credibility that might enable them to speak to the state without fear of sanction’.Footnote ⁶⁶

However, Ireland is unique in making use of multiple forms of international law and human rights law to address historical abuse. In 2011, the United Nations Committee against Torture criticised Ireland’s failure to address the Magdalene Laundries,Footnote ⁶⁷ leading to the establishment of an inquiry, discussed in Chapter 6. Similar efforts have been pursued regarding the issue of mother and baby homes in several United Nations human rights treaty body mechanisms.Footnote ⁶⁸

In addition, in O’Keeffe v Ireland, the European Court of Human Rights concluded that Ireland failed to protect Louise O’Keeffe from sexual abuse suffered as a child in an Irish National School and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.Footnote ⁶⁹ The court considered that when relinquishing control of the education of children to non-state church actors, Ireland should have been aware, given its inherent obligation to protect children, of potential risks to their safety if there was no appropriate framework of protection.Footnote ⁷⁰ The decision represents a site of epistemic justice, where the Strasbourg court accepts the reformulation of the case that was originally argued in tort law in Irish courts, as a violation of human rights. However, its impact in Ireland has been circumscribed significantly by the state’s implementation of the judgment through an ex gratia redress scheme that interprets the judgment narrowly.Footnote ⁷¹

In 1996, 2005, and 2009, the Irish Bishops’ conference adopted a new set of canon law guidelines, which provided for all allegations of child abuse to be taken to the civil authorities.Footnote ⁷² However, these documents did not receive official recognition from the Vatican and remained without standing in canon law.Footnote ⁷³ The Murphy report stated that historically the Archdiocese of Dublin ‘did not implement its own canon law rules and did its best to avoid any application of the law of the State’.Footnote ⁷⁴ Similarly, the 2011 Cloyne report concluded that the church had failed to carry out proper canonical investigations or to report all complaints to the Gardai or health authorities.Footnote ⁷⁵ In response to the report, Taoiseach Enda Kenny emphasised in the Irish parliament that the Cloyne report demonstrated the attempts by the Catholic Church and the Holy See to frustrate a government inquiry in the recent past.Footnote ⁷⁶

7.4.2 Australia

Australian jurisdictions have long legislated against the sexual abuse of children.Footnote ⁷⁷ The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) criminal justice report concluded that between 1950 and 2010, a total of 1,880 alleged perpetrators (diocesan and religious priests, religious brothers, religious sisters, lay employees, or volunteers) were identified in claims of child sexual abuse.Footnote ⁷⁸ The RCIRCSA final report concluded that children were allegedly abused in over 4,000 institutions and made 2,562 referrals to the police,Footnote ⁷⁹ leading to at least 127 prosecutions to date.Footnote ⁸⁰ The RCIRCSA also criticised the criminal trial process as unfair and traumatic for victims of child sexual abuse.Footnote ⁸¹ The common law offence of misprision of felony has been abolished in all Australian jurisdictions, but it has been replaced with a series of offences regarding the concealment of or failure to prevent serious offences in several jurisdictions,Footnote ⁸² with one recent prosecution of an archbishop for failure to report abuse overturned on appeal.Footnote ⁸³

The RCIRCSA noted that up to the 1990s, Catholic authorities did not engage with canon law processes or trials for allegations of child sexual abuse.Footnote ⁸⁴ Although national responses (Towards Healing and the Melbourne Response) were established in the 1990s, the RCIRCSA concluded that processes ‘to dismiss priests and religious appear to have been rarely used during the 1990s and early 2000s’.Footnote ⁸⁵ The RCIRCSA concluded that the canon law system ‘contributed to the failure of the Catholic Church to provide an effective and timely response to alleged perpetrators and perpetrators’.Footnote ⁸⁶

Several other areas of historical abuse have not resulted in any criminal accountability, such as the Stolen Generations, genocide against Indigenous peoples, the child migration process, or Aboriginal stolen wages, many of which operated under legislative authorisation or state complicity.

In Australia, civil liability has offered some limited success in addressing historical-structural injustices, particularly around the land rights of Aboriginal peoples. Early attempts to establish a right to traditional customary lands were unsuccessful.Footnote ⁸⁷ However, in Mabo & Ors v Queensland (No 2), the Australian High Court concluded that the Meriam people possessed native title over their traditional lands, defined as the rights and interests over land or waters that exist according to the traditional laws and customs of Indigenous inhabitants of land.Footnote ⁸⁸ In rejecting the doctrine of terra nullius, the court concluded that native title exists when an Indigenous community could show there is a continuing association with the land in circumstances where no explicit act of the Crown has extinguished title.Footnote ⁸⁹ Ann Curthoys et al note: ‘The notion of terra nullius had always been deeply offensive to Indigenous people. The symbolic overturning of the doctrine was an important legal, political and psychological achievement. However, the Mabo case replaced the legal fiction of terra nullius with another legal fiction that Australia was ‘settled’, a legal narrative that also conflicts with the dominant Indigenous perspectives of Australian colonial history’.Footnote ⁹⁰

As in the US Supreme Court decision of Brown, the radical nature of the decision led to a political and popular backlash.Footnote ⁹¹ Short notes that the mining industry was particularly threatened by the case, and lobbied the government, concerned that some existing title could be invalid in the absence of compensation or that future purchases would involve greater control by Aboriginal peoples.Footnote ⁹² The campaign eventually led the government to legislate to provide ‘certainty’ for the commercial lobby by passing the Native Title Act 1993, which established a Native Title Tribunal for assessing native title claims.

Several subsequent decisions used historical documentation from British settlers to deny the claims of Indigenous peoples, which were based instead on oral testimony from Indigenous peoples corroborated with archaeological, anthropological, genealogical, and linguistic evidence,Footnote ⁹³ creating a very high evidential threshold for First Nations peoples to assert land rights.Footnote ⁹⁴ A people group had to show they formed a society, substantially the same as that which existed at sovereignty and had continued to observe a system of laws and customs which were, again, substantially unaltered from those observed by their ancestors at sovereignty.Footnote ⁹⁵ As a result, native title litigation forms a further site of epistemic injustice for Indigenous peoples, with expansions of rights often counteracted. In Wik, the High Court held that native title could coexist with pastoral leases, which represented about 40 per cent of the total area of Australia.Footnote ⁹⁶ In response, the Australian government passed the Native Title Amendment Act in 1998, which complicated the native title claims process for litigants. Native title remains deeply contested in Australia. Jon Altman concludes: ‘If hypothetically all native title claims were successful, as much as 70 per cent of Australia could be under some form of Indigenous title and as much as 40 per cent of the Indigenous population could be resident on these lands’.Footnote ⁹⁷

In addition to cases involving native title, attempts to argue that Australia was responsible for genocide against First Nations peoples have also proven unsuccessful,Footnote ⁹⁸ particularly as Australia had not ratified the Genocide Convention retrospectively. These cases contrast with the findings of the Bringing Them Home report, which noted the potential for child removal to constitute genocide.Footnote ⁹⁹ Curthoys et al note these cases demonstrate ‘the challenges that Indigenous peoples face when using the law strategically to gain recognition of past wrongs’.Footnote ¹⁰⁰ In subsequent cases,Footnote ¹⁰¹ Indigenous applicants were denied in their attempts to litigate regarding the Stolen Generations by an approach to the historical record that relied on ‘the standards of the time’ to judge the policy of child removal for the Stolen Generation. By adopting this approach, the court denied the applicants the ability to use oral evidence to reinterpret or reframe historical documentation in light of their lived experience,Footnote ¹⁰² confirming a narrow approach to epistemic justice. The result is law remains unable to ‘escape its complicity in the colonial project, and its ability to write out, again and again, the experiences of Indigenous peoples’.Footnote ¹⁰³ Buti writes that these decisions ‘brought into relief the multiple legal and evidential obstacles involved in pursuing litigation to redress the alleged wrongs of past Aboriginal child separations or removals’.Footnote ¹⁰⁴

In Trevorrow v South Australia [No 5], the applicant was fostered out without the consent of his parents by the Aborigines Protection Board despite their requests for the child’s return.Footnote ¹⁰⁵ Critically, the applicant’s experiences were all documented in departmental medical records and could be interrogated by testimony from relevant doctors. Gray J concluded that the state was in breach of the limits of relevant legislation at the time, which did not give it the power to foster an Aboriginal child without parental consent,Footnote ¹⁰⁶ a decision affirmed on appeal.Footnote ¹⁰⁷ This finding has value for other members of the Stolen Generations interested in litigating their removals but would likely depend on the existence of similar documentary evidence. With these limited successes, Curthoys et al note: ‘there has been considerable disillusionment among many litigants with the law as a form of redress’.Footnote ¹⁰⁸

Finally, no national bill of rights or regional human rights mechanisms are available in Australia, which impacts on victim-survivors’ capacity to use human rights to examine historical abuse.Footnote ¹⁰⁹ The absence of a strong human rights framework within Australian law has meant there is little to temper or fetter the exercise of power by the federal government in relation to policy on Indigenous people,Footnote ¹¹⁰ despite instances in which the state’s treatment of Aboriginal peoples has been criticised.Footnote ¹¹¹

7.4.3 Canada

Despite the prosecution of child sex abuse being a historical legal possibility since 1892, the TRC report notes that contemporary reporting of abuse to government or church authorities arising from residential schools did not often lead to prosecution or conviction.Footnote ¹¹² As in other jurisdictions, several other inquiries and issues of historical abuse have not led to significant or sustained prosecutions, such as illegal adoptions, or enforced disappearances of Aboriginal women.

Changes in Canadian law between 1991 and 2003 for class actions led to a situation where 18,000 outstanding civil lawsuits related to abuse in residential schools would take fifty-three years to conclude at a cost of $2.3 billion, not including the value of any compensation awarded to survivors.Footnote ¹¹³ The pressure of such litigation led to negotiations between Aboriginal organisations, religious organisations, and the federal government that would lead to the IRSSA. Regarding the Sixties Scoop process of transfer of Indigenous children into foster homes and adoption by white families, class-action litigation began in 2011, and in 2017 a $800 million settlement was announced based on a ruling that the Canadian government was liable for the harms caused by this process.Footnote ¹¹⁴ However, Bruce Feldthusen noted that the adversarial nature of civil litigation necessitated aggressive cross-examination of victim-survivors with the potential for re-traumatisation.Footnote ¹¹⁵ In addition, the length of proceedings, limited testimony from victim-survivors, and the complexity of potential liability of both church and/or state institutions created further difficulties for pursuing accountability.Footnote ¹¹⁶ In particular, ‘a recognition of “power disparities and the special vulnerability of children” were mostly “absent from the judgments of most members of the High Court”’.Footnote ¹¹⁷

In Canada, efforts to address clerical sex abuse began in 1987 in response to the Mount Cashel orphanage crisis.Footnote ¹¹⁸ Several subsequent reports were commissioned to address the issueFootnote ¹¹⁹ but have not produced national figures on the number of allegations or canon trials. A Committee for Responsible Ministry and the Protection of Minors and Vulnerable Adults was established in 2018 as a consultative body established within the Canadian Conference of Catholic Bishops (CCCB). Their 2018 report notes that each Canadian province now has mandatory reporting laws for child abuse.Footnote ¹²⁰ However, the document suggests a preference for out-of-court settlements and mediation as a form of accountability.Footnote ¹²¹ As in other jurisdictions, such an approach may spare victim-survivors interrogating through the process of a court trial but also hides the scale and extent of the problem from public scrutiny and disables accountability for the systemic nature of the abuse.

There remains a significant practice of land disputes between Indigenous nations and Canada that reflects some of the epistemic and ontological injustices in Australia. In Calder v British Columbia in 1973, while the Nisga’a people were unsuccessful in seeking a declaration of their Aboriginal title to ancestral lands in British Columbia,Footnote ¹²² the court recognised the existence of Aboriginal rights in Canadian law before the Royal Proclamation in 1763. The decision led to a change in government policy on native land claims and ultimately an amendment to the Canadian Constitution in 1982 to recognise and affirm ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’ under section 35(1). Borrows suggests: ‘In the moment, the constitution appeared to present a path to genuine reform. Then the idea of originalist history re-emerged and became the touchstone for proving Aboriginal rights’.Footnote ¹²³ In 1996, the Supreme Court ruled in R. v Van der Peet that Section 35(1) offered protection of Aboriginal rights but only for those practices, customs, and traditions that were ‘integral to the distinctive culture’ of particular groups prior to European contact.Footnote ¹²⁴ Borrows notes the Supreme Court placed a search for ‘original’ understandings of Aboriginal rights as central, narrowing the scope of evolving knowledge, power, and epistemic justice.Footnote ¹²⁵ In Delgamuukw v British Columbia, the Supreme Court stated the test to determine what constitutes a justified infringement on Aboriginal rights and title, and in doing so, placed the onus on Indigenous nations to prove occupation prior to sovereignty and subsequent continuous occupation,Footnote ¹²⁶ as ‘aboriginal title crystallized at the time sovereignty was asserted’.Footnote ¹²⁷

In Tsilhqot’in Nation v British Columbia, the Canadian Supreme Court found that the Tsilhqot’in Nation was entitled to a declaration of Aboriginal title in their traditional territories,Footnote ¹²⁸ due to evidence of sufficient and exclusive historical occupation at the time of Canadian sovereignty. The Court in Tsilhqot’ in stated that the doctrine of terra nullius never applied in Canada.Footnote ¹²⁹ Borrows suggests that while a significant decision and victory for the Tsilhqot’in Nation, the case represents the continuation of a problematic treatment of Indigenous history in Canadian law: ‘This test requires proof of what was integral to distinctive Aboriginal societies upon contact. If a practice developed after contact it cannot be protected as an Aboriginal right within Canada’s Constitution.’Footnote ¹³⁰ Thus, courts’ use of history is providing a significant structural constraint on Indigenous rights in Canada.Footnote ¹³¹

Canada has also addressed historical-structural injustices through a human rights lens. In 2007, the First Nations child agency, the Assembly of First Nations, alleged that state-run child welfare services provided to First Nations children and families on reserve were flawed, inequitable, and discriminatory on an ongoing basis.Footnote ¹³² In 2016, the Canadian Human Rights Tribunal found that Canada was racially discriminating against First Nations children. The Canadian government is currently seeking judicial review of this decision, which may cost between $2 and 15 billion to implement. Rauna Kuokkanen argued that even if successful, the discriminatory treatment of First Nations peoples must be addressed through examining other relations of domination, including heteropatriarchal gender relations, ‘which often displace Indigenous women, and consequently, their children from their communities’.Footnote ¹³³

In terms of employing international human rights, Kuokkanen notes: ‘Traditionally, there has been no strong Indigenous engagement with international human rights instruments at the national level, although this has somewhat changed with the adoption of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).’Footnote ¹³⁴ A notable exception is Lovelace v Canada, where the United Nations Human Rights Committee concluded that Canada had violated the International Covenant on Civil and Political Rights as the Indian Act violated the cultural and language rights of Indigenous woman Sandra Lovelace.Footnote ¹³⁵ This led to an amendment of the Indian Act aimed at removing gender-based discrimination but denied Indigenous women the means to transfer their Indigenous status to their children. Subsequent cases have attempted to overcome this but have only removed ‘the specific discrimination identified by each case, rather than addressing the foundational sex-based hierarchy in the status provisions’.Footnote ¹³⁶

In 2021, on National Indigenous People’s Day, Canada formally adopted An Act respecting the UNDRIP. The Act provides that the Canadian government must ‘in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration’. In particular, the Act provides that relevant government ministers must prepare and implement action plans to achieve the objectives of the Declaration. While this may offer the basis for advancing the potential of UNDRIP provisions, Section 2 of the Act nonetheless provides that ‘[t]his Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them’. It remains to be seen whether this Act will make a material difference to the Canadian government’s treatment of First Nations peoples. Although the Canadian government rhetoric recognises the need for ‘transformative change’ with Indigenous peoples, Rosemary Nagy notes its practices continue to cause concern.Footnote ¹³⁷ Rights have proven problematic and limited as a mechanism to achieve the empowerment of First Nations peoples, rights discourse and practice remains one element of addressing historical-structural injustices but one that risks framing First Nations interests, such as self-determination, as something to be granted by the state, affirming existing settler colonial structures.Footnote ¹³⁸

7.4.4 United Kingdom

English criminal law has long prohibited offences relevant to historical abuse, such as rape, child cruelty, or assault or neglect of a child in the care of another.Footnote ¹³⁹ The UK demonstrates the potential and risks of criminal prosecution for historical sexual violence. Following a television documentary alleging abuse by English celebrity Jimmy Savile, Operation Yewtree was established as a police investigation into child sexual abuse led by the Metropolitan Police Services (MPS). A 2013 MPS report concluded that Saville, deceased, had committed at least 450 acts of child sexual abuse.Footnote ¹⁴⁰ The operation led to nineteen arrests of other high-profile public figures and to seven convictions. More broadly, a ‘Yewtree effect’ was reflected in part in a 124 per cent increase in the reporting of rape since 2012.Footnote ¹⁴¹ In response, MPS Operation Hydrant was established in 2014 to oversee and coordinate all ‘non-recent’ investigations concerning persons of public prominence and those historical institutional sexual offences. Figures in early 2020 indicate that ‘4,024 allegations led to guilty verdicts at court after police investigations since 2014 into decades-old child sex offences’.Footnote ¹⁴² Since Hydrant’s launch, 7,000 suspects have been identified, with 11,346 allegations of attacks received from 9,343 victims, all concerning sexual abuse of children. Such figures relate to both institutional and non-institutional contexts of historical child sexual abuse. These figures have encouraged some victim-survivor representatives.Footnote ¹⁴³ Other forms of historical abuse, such as institutionalisation per se, child migration, and illegal adoption, have not formed the object of criminal prosecutions but have been pursued through civil litigation.

The experience of victim-survivors in UK civil litigation continues to risk distress or re-traumatisation. The Independent Inquiry into Child Sexual Abuse (IICSA) report on accountability and reparations noted that for many victim-survivors ‘the litigation process was emotionally challenging and that it compounded the trauma they had already suffered as children. They also felt dissatisfied with the outcome, either because their claims had failed or because they had succeeded, usually by accepting a settlement offer, but they had never received any explanation or apology for what had happened to them and did not feel that justice had been done’.Footnote ¹⁴⁴

The IICSA report on the safeguarding within the Roman Catholic Church confirms that in the church’s historical responses to child sex abuse allegations, ‘resistance to external intervention was widespread’.Footnote ¹⁴⁵ The Nolan report in 2001 recommended the need for a single set of rules to address such allegations across the Catholic Church in England and Wales, leading to the eventual establishment of independent child commissions and child protection offices. The 2007 Cumberlege review of this process found the church had made some progress regarding child protection, though noted the limited change for religious orders compared to dioceses.Footnote ¹⁴⁶ The IICSA report concluded: ‘The absence of published data about the number of priests laicised for child sexual abuse offences (whether in crimes in civil or canonical law) diminishes confidence in the Church’s handling of such cases.’Footnote ¹⁴⁷

Beyond individual criminal and civil cases, the 2012 case of Mutua & Ors v Foreign and Commonwealth Office represented the first time that victims of colonialism were given the right to claim compensation from the British government. The claims arose from the systematic abuse and torture inflicted on the Kenyan people by British colonial officials and Kenyan ‘home guards’ under British command, including castration, systematic beatings, rape, and sexual assault with bottles; all of which were known about and sanctioned at the top levels of the British government.Footnote ¹⁴⁸ Justice McCombe noted that a fair trial was possible due to the existence of extensive and meticulous colonial records that had been found in discovery.Footnote ¹⁴⁹ The case extended principles of vicarious liability in tort law to the joint activities of British government and colonial administrations.Footnote ¹⁵⁰ In 2013, the British government apologised and agreed to pay £19.9 million in compensation to over 5,000 claimants who had suffered abuse.Footnote ¹⁵¹ Balint notes that the settlement ‘was couched in terms of being important for future economic and political relations, rather than as an important acknowledgement of British responsibility for these harms as integral to Empire’.Footnote ¹⁵² Balint suggested the case offered the potential for a new constitutive moment ‘ushering in a new legal order in which colonial harms can be heard and redressed as well as changing the public and political landscape of how the British Empire is collectively remembered and discussed’.Footnote ¹⁵³ However, she concludes that ‘the absence of a broader public appreciation of the structural nature of these harms – as constitutive of Empire, not exceptional to it – means that the claims brought and heard in their particularity will fail to have a more extensive constitutive impact’.Footnote ¹⁵⁴ The potential impact of the case has been circumscribed by subsequent decisions and legislation.

In Kimathi & Ors v The Foreign and Commonwealth Office, in 2018, Stewart J dismissed similar group litigation, where over 40,000 Kenyans brought claims for damages against the UK Foreign & Commonwealth Office (FCO), alleging abuse in Kenya during the 1950s and early 1960s.Footnote ¹⁵⁵ Stewart J held the claim was barred by the statute of limitations and that it would not be equitable to extend time in the claimant’s favour due to the severe effects of the passage of time on the defendant’s ability to defend the claim.Footnote ¹⁵⁶ The judgment emphasised that civil litigation is distinct from a public inquiry and that ‘the claims must stand or fall on established principles of civil litigation’.Footnote ¹⁵⁷

In Keyu v Secretary of State for Foreign and Commonwealth Affairs, the UK Supreme Court was asked whether the FCO should be required to hold a public inquiry into allegations of British soldiers shooting and killing twenty-four unarmed civilians in 1948 in Malaysia.Footnote ¹⁵⁸ The UK government had rejected the claim for a public inquiry. The Court rejected the claim to compel the government to establish an inquiry, concluding that a historical claim that predates the European Convention on Human Rights needed a supervening event to create an obligation under the Convention to create an obligation to investigate.

Although these cases represent attempts to address the legacy of the British Empire through litigation, the future capacity of litigants to build on these approaches has been undermined by government legislation. Schedule 2 of the Overseas Operations (Service Personnel and Veterans) Act 2021 restricts a court’s discretion, under the Limitation Act 1980, to disapply time limits for civil actions in respect of personal injuries or death which relate to overseas operations of the armed forces. The minister John Mercer in introducing the bill spoke of the need ‘to lance the boil of lawfare and to protect our people from the relentless cycle of reinvestigations against our armed forces’.Footnote ¹⁵⁹

7.4.5 United States

In the United States, there has been a significant focus on the criminal prosecution of clerical child sexual abuse but little systemic efforts to prosecute other forms of sexual abuse or non-sexual historical abuses. Attempts to hold priests accountable for child sex abuse began in 1984, in Louisiana,Footnote ¹⁶⁰ but it would not be until 2002 and revelations of clerical abuse and its cover-up in Boston that the issue garnered national attention and forced the church to attempt to change its approach to dealing with abuse allegations. Formicola suggests that the successive investigations and litigation challenged the primacy of canon law and created expectations of legal cooperation from church institutions,Footnote ¹⁶¹ with secular governments less deferential to churches and as a result more powerful in how the past is addressed.Footnote ¹⁶² Most recent figures published by the United States Conference of Catholic Bishops (USCCB) indicate that 7,002 priests ‘not implausibly’ and ‘credibly’ were accused of sexually abusing minors in the period 1950 through 30 June 2018.Footnote ¹⁶³ However, criminal convictions are not recorded in USCCB annual reports. Figures in the United States may continue to underestimate the extent of abuse as they rely on survey responses filled out by church officials without independent verification and are based on church personnel files, which may be incomplete or have removed incriminating material from personnel files to secret archives.Footnote ¹⁶⁴ In addition, the US-based Survivors Network of those Abused by Priests (SNAP) unsuccessfully petitioned the International Criminal Court (ICC) alleging that Vatican officials had superior responsibility for consciously disregarding information that showed subordinates were committing or about to commit sexual violence. The request was rejected on the basis of lack of jurisdiction and because some of the allegations concerned events prior to the court’s founding in 2002.Footnote ¹⁶⁵ Similarly attempts to sue the Holy See in US court directly in tort law were also unsuccessful.Footnote ¹⁶⁶

Criminal prosecutions in the United States largely fail to address other areas of historical abuse involving state apparatus, involving racially motivated violence against African Americans, systemic assessment of police brutality, or violence against Native Americans. According to Manfred Berg, of all lynchings committed after 1900, only 1 per cent resulted in a perpetrator being convicted of a criminal offence of any kind.Footnote ¹⁶⁷ In contrast, litigation has formed a key part of seeking to address the legacy of slavery, Jim Crow laws, and racial discrimination. Early decisions of the US Supreme Court affirmed both the Doctrine of Discovery and white supremacy.Footnote ¹⁶⁸ However, the litigation strategies addressing injustice against Native peoples and black Americans are significant in their differences. In Brown v Board of Education in 1954, the applicant successfully argued that the principle of ‘separate but equal’ was unconstitutional, thus prohibiting the racial segregation of public schools.Footnote ¹⁶⁹ Brown remains the canonical example of how the US legal system addresses the nation’s legacy of past racial violenceFootnote ¹⁷⁰ but perhaps remains of limited ontological value. Joshi notes that while significant for demonstrating that racially separate public schools are ‘inherently unequal’, the decision is also notable for its failure to mention white supremacy and the degrading treatment of black children.Footnote ¹⁷¹ Angela Onwuachi-Willig suggests that such an approach left intact and unchallenged pre-existing notions of white superiority and black inferiority pervasive in American society.Footnote ¹⁷²

The potentially radical nature of the decision was limited by the Court’s own approach to its implementation. In Brown II the Supreme Court turned over the implementation of school desegregation to local judges, who were to act not immediately but with ‘all deliberate speed’.Footnote ¹⁷³ After Brown, segregation persisted significantly for ten further years and the Civil Rights mass movement was required to realise its potential.Footnote ¹⁷⁴ This mass movement and legal changes in turn led to retrenchment and resistance to racial integration,Footnote ¹⁷⁵ ultimately finding expression in the Supreme Court with the successive appointment of conservative judges throughout the end of the twentieth century, who largely deny continuities of historical injustices to present inequalities.Footnote ¹⁷⁶

Other significant victories have been achieved through litigation, such as prohibiting voter discrimination,Footnote ¹⁷⁷ but have equally been undermined by subsequent retrenchment in the Supreme Court.Footnote ¹⁷⁸ Joshi suggests: ‘In trying to disassociate the United States of today from its antebellum and Jim Crow histories, the Court denounced blatant forms of racism from the past while discounting the racism present today and denying continuities between past and present racism’, and emphasises the Court’s preoccupation with an end point to racial transition at which any exceptional measures would no longer be justified.Footnote ¹⁷⁹ As a result, the most high-profile forms of litigation to address historical-structural injustices, such as Brown, are limited both by the structure of litigation requiring subsequent government action and by the relatively narrow framing adopted by the Courts in relation to the nature of the injustices addressed.

There have been several cases litigating the issue of reparations for slavery, but these have proven largely unsuccessful due to structural barriers in litigation, in particular the doctrine of sovereign immunity, that a political subject cannot sue the government without its consent, has barred two attempts.Footnote ¹⁸⁰ In addition, descendants of slaves’ claims for reparations have been rejected as courts concluded that the descendants had not been directly harmed themselves.Footnote ¹⁸¹ Emma Coleman Jordan notes the limited potential to achieve reparations for slavery: ‘The litigation-for-reparations strategy suffers from the old problem of using the master’s tools to tear down the master’s house.’Footnote ¹⁸²

The use of civil and constitutional rights has also been limited and risky for Native peoples. In the 1950s, Native claims were limited to those under the Indian Claims Commission, which allowed for the recovery of money but not return of Native lands,Footnote ¹⁸³ and is discussed further as a limited form of reparation in Chapter 8. By the 1960s, Native tribes began to pursue the advancement of their interests through litigation through the development of the Native bar of attorneys.Footnote ¹⁸⁴ This strategy led to a trend of the recognition of native rights to title in the 1970s and 1980s, recognising that federal Indian law was based on a government-to-government relationship between tribes and the United States.Footnote ¹⁸⁵ Wilkinson notes that these successes became more limited in the 1980s and 1990s, similar to retrenchment against addressing racial injustice, with Justices Rehnquist, Scalia, and Thomas refusing to take seriously existing Native treaties.Footnote ¹⁸⁶ Kirsten Matoy Carlson notes that at the US Supreme Court, Indian nations lose over 75 per cent of the cases litigated.Footnote ¹⁸⁷ This rate suggests that efforts of Native tribes to assert their rights and power and address past injustices may be better pursued through Congressional legislation, through both general and tribal-specific legislation.Footnote ¹⁸⁸

The Court’s approach to addressing Native sovereignty and jurisdiction has fluctuated in its effects as a form of epistemic injustice. In Oliphant, the Supreme Court declined to acknowledge criminal jurisdiction for Indian tribal courts over non-Indians.Footnote ¹⁸⁹ In doing so, the Court concluded that the relevant treaty text was silent on this issue and as a result the Court could examine ‘the common notions of the day’ and ‘the assumptions of those who drafted [the texts]’ to resolve the issue.Footnote ¹⁹⁰ Blackhawk is critical of this approach that remained rooted in a dominant ideology that sought to restrict the textual recognition and impact of Native sovereignty.Footnote ¹⁹¹ In contrast, in Solem v Bartlett, the Supreme Court concluded that three principles would evaluate the existence of any Congressional intent to diminish the borders of a Native reservation.Footnote ¹⁹² First, the Court affirmed that an explicit provision from Congress is required to diminish the boundary of a reservation. Second, the language must specifically state the intent to diminish a reservation or make a blatant statement from which the intent to diminish is presumed. Third, the Court made clear that historical evidence of intent to disestablish the reservation must be ‘unequivocal’ in order to be dispositive.Footnote ¹⁹³ Such an approach raised the burden to displace existing reservations and Native borders. Maggie Blackhawk suggests that rights-based frameworks, such as that in Brown, have been used as a tool of settler colonialism against Native peoples. Instead, recognition of tribal sovereignty has benefited Native peoples as a recognition of power, not rights.Footnote ¹⁹⁴ The potential of Native litigation in the United States thus remains predicated on recognition of Native sovereignty, not individual or collective rights granted by the state. Such litigation has the potential to redistribute ontological power, affirming the shared sovereignty and power on the territory of the United States/Turtle Island.

A recent Supreme Court decision illustrates the potential of an approach focused on power, rather than rights for Native peoples. In 2020 in McGirt v Oklahoma, the Supreme Court held that ‘three million acres and most of the city of Tulsa, Oklahoma’ was recognised by the United States as within reservation lands of the Muscogee (Creek) Nation, potentially leading to one-third to one-half of Oklahoma being part of a reservation.Footnote ¹⁹⁵ In McGirt, the United States and the Muscogee (Creek) Nation had agreed on the borders of the reservation in a treaty that recognised Native sovereignty. The Supreme Court held that the text of the treaty would determine the outcome and that subsequent practices aiming to usurp sovereignty had not changed or made law. It notably stated: ‘Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right’.Footnote ¹⁹⁶ Such an approach affirms the potential for litigation to serve as a mechanism to address historical-structural injustice directly, providing measures of truth and reparation through the recognition of native title.

In contrast, Blackhawk suggests that the dissents by Justices Roberts, Alito, Kavanaugh, and Thomas are notable for their attempts to perpetuate national myths regarding American western frontier expansion, such as manifest destiny. The dissent’s approach would shift the epistemic power away from a textual analysis that emphasised Native sovereignty and allow a contextual approach that would empower the court to find sufficient Congressional intent to diminish the borders of the reservation in the treaty.Footnote ¹⁹⁷ In doing so, the dissent would have made legal an infringement of Native sovereignty that was non-consensual and violent.Footnote ¹⁹⁸ The broader impact of the decision remains to be seen, with the Court noting that delay, laches, and other doctrines of civil litigation may bar Native nations from exercising power and jurisdiction.Footnote ¹⁹⁹ Blackhawk argues that generations of Native advocacy have sought to emphasise the language of sovereignty, power, and conquest into law, ‘thereby making the experience of Native people legible to formal lawmaking institutions’.Footnote ²⁰⁰ Such an approach can enable advocates ‘to fracture the law in order to lower the barriers to reform’ as a means of recognising and remedying historical-structural injustices.Footnote ²⁰¹

8.3.1 Reparation Schemes Considered

Of the forty-one reparation schemes considered in this book in Appendix 2, the majority are commemorative and synchronic and fail to address the structural conditions that framed and created the context for specific abuses, or the structural conditions that have persisted or been reproduced after non-recent harms. A majority of the schemes provided to victim-survivors of historical abuse are ex gratia, arising as a gift, without admission of responsibility from the states or churches who administer the schemes. A second category of schemes represents the outcomes of the settlement of litigation. These range from private settlements with exclusively financial outcomes, to broad, complex, and public settlements, such as the Indian Residential Schools Settlement Agreement (IRSSA) in Canada.

In Ireland, the redress schemes have all been ex gratia and designed and administered by government. The Residential Institutions Redress Board (RIRB) scheme was the result of survivor political and legal pressure and ran concurrently with the Commission to Inquire into Child Abuse (CICA) investigation, discussed in Chapter 6. It is the only scheme to have a financial contribution (of 11 per cent of the total cost) from churches, which were indemnified from any litigation for their contribution.Footnote ²³ The Magdalene Restorative Justice Scheme arose as a response to the state’s McAleese commission report.Footnote ²⁴ A redress scheme for survivors of mother and baby homes has been proposed by government in 2022 and is progressing through parliament at the time of writing. There is no aggregated data on the settlement of claims against state or religious orders regarding historical abuses.

In Australia, redress schemes have been mandated by state or national governments, with varying levels of survivor advocacy and engagement. The 2018 National Redress Scheme, arising from a recommendation of the Royal Commission into Institutional Responses to Child Abuse, involved negotiations between state and federal governments and non-government institutions in all Australian jurisdictions to join the scheme, including the Catholic Church, Anglican Church, Salvation Army, Scouts Australia, YMCA Australia, the Uniting Church, and the Lutheran Church of Australia.Footnote ²⁵ In 2021, the Australian government authorised national redress for the Stolen Generations, which will build on existing redress schemes from two Australian states. In addition, aggregated data gathered by the Royal Commission on Institutional Responses to Child Abuse reveals that over 3,000 claims of child sexual abuse against religious orders were resolved between 1995 and 2015. Catholic Church authorities made total payments of $268 million to settle claims of child sexual abuse between 1 January 1980 and 28 February 2015.Footnote ²⁶ Daly and Davis note the rarity and value of this data to compare validation rates and monetary payments between civil litigation and redress schemes.Footnote ²⁷ In addition, successive cases and legislation purported to enable Indigenous people to claim limited land rights where traditional ownership could be proven, discussed in Chapter 7.

In contrast, Canada’s reparations processes for historical abuse have been driven by litigation and facilitated by the ability of some groups of victim-survivors to leverage the class-action lawsuit mechanism. The highest profile and heavily used scheme relates to the IRSSA, established in 2006, as part of a settlement agreement of over 7,000 legal claims against the federal government and a number of churches. A second large settlement agreement in 2018 relates to the ‘Sixties Scoop’ of Indigenous children to foster care and adoption. Several other schemes result from class actions and concern abuse in closed institutions. In Canada, limited published data regarding the settlement of clerical abuse cases in non-residential settings makes a holistic evaluation challenging. In contrast to Australia, a Specific Claims Tribunal was established in 2008 to assess monetary damage claims made by a First Nation against the Crown regarding the administration of land and other First Nation assets. To date, CAN$ 8.8 billion has been paid out in 587 settlements.Footnote ²⁸

In the United Kingdom, a number of avenues of judicial reparation are available for victims of criminal harm. In England and Wales, victim-survivors can obtain reparation through awards of compensation by the criminal courts or by the Criminal Injuries Compensation Authority (CICA). However, the ongoing IICSA inquiry revealed that only around 0.02 per cent of criminal compensation orders relate to child sexual abuse.Footnote ²⁹ In addition, a compilation of settlements against the English Catholic Church since ‘records allow’ to 2020 reveals that there have been 439 child sex abuse allegations against dioceses and forty-nine claims against religious orders.Footnote ³⁰ On available data between 2003 and 2018, the Church of England addressed 217 claims for child abuse.Footnote ³¹ In addition, governments in Jersey, Northern Ireland, and Scotland have provided for reparations after and alongside public inquiries into institutional abuse. No aggregated settlement data is available in these jurisdictions.

In the United States, there are no national reparation schemes regarding racial injustice and limited and unsatisfactory schemes for Native peoples. Aggregated data on the settlement of clerical sexual abuse cases against the Catholic Church reveal that 5,679 survivors received a total of approximately $2.5 billion, with an average settlement of $268,466.Footnote ³² The United States was the first to establish a formal process for the hearing of Native American land claimsFootnote ³³ but could only order monetary redress, not the return of Native lands.Footnote ³⁴

This universe of reparation schemes and settlement agreements demonstrates the significant cost of redress to date. However, both the experience of these schemes and their limitations have been a source of challenge and frustration for victim-survivors and inhibit their contribution to any transitional justice for historical-structural injustices.

8.4.1 Dimension 1: Agency

Reparations are a significant site of engagement between victim-survivors and states and churches, negotiating the establishment, cost, and procedure of any schemes. The record of such participation and ownership is mixed at best. Kathleen Daly notes that a majority of Canadian redress schemes and settlements involve negotiation with victim-survivors or, at least, their legal representatives, while four Canadian agreements only involved negotiations between legal representatives, with little or no victim participation.Footnote ³⁸ In some instances, survivors were critical of the length of settlement proceedings that exhausted survivors and wasted funds of the defendants that could have helped survivors.Footnote ³⁹ In the Jericho Hill, and Nova Scotia redress schemes, existing accounts from survivors were negative of the redress experience.Footnote ⁴⁰ In contrast, the redress schemes for Grandview and St John’s and St Joseph’s were the product of significant participation from victim-survivor advocacy groups, leading to enhanced trust and reconciliation and a high validation and acceptance of claims by victim-survivors.Footnote ⁴¹ Both schemes allowed victims the opportunity to describe their own experiences and explain the consequences on their lives.Footnote ⁴² However, despite positive reviews from many victim-survivors, Daly noted that the language used for the Grandview redress scheme of ‘healing’ was misleading and premature.Footnote ⁴³

Within the Canadian cases, Daly notes the experiences of participation for victim-survivors, ‘depend on the bargaining power of the advocacy group and the size and strength of the legal team’.Footnote ⁴⁴ The most notable example was the IRSSA, which was the result of extensive engagement with victim-survivors, advocates, and their legal representatives.Footnote ⁴⁵ Reimer et al found that 31 per cent of survivors surveyed were positive about their experiences with the common experience payment component of IRSSA, with most saying reparations were pragmatically useful in providing financial assistance but went on to suggest that ‘the satisfaction derived from the CEP money [Common Experience Payment] was for the most part temporary’.Footnote ⁴⁶

In contrast, a majority of Australian redress schemes are stipulated by government, with limited evidence of victim participation or consultation.Footnote ⁴⁷ In contrast, the recent National Redress Scheme resulted from significant engagement by victim-survivors with the Royal Commission on child abuse that recommended a national approach and with subsequent government negotiations.Footnote ⁴⁸ However, a recent review of this scheme found it fundamentally unsatisfactory despite this engagement, noting: ‘The Scheme’s enabling legislation states, “Redress under the Scheme should be survivor focussed.” It currently is not … The feedback of survivors has been consistent about the need for change.’Footnote ⁴⁹

In the United Kingdom, a 2019 review of criminal compensation schemes by the UK Victims’ Commission was highly critical of its operation, finding it ‘extremely traumatic for victims who have to repeat details of the crime numerous times’.Footnote ⁵⁰ In 2019, the UK IICSA reported that ‘none of the avenues for redress which we have examined – civil justice, criminal compensation (CCOs and CICA awards) or support services – is always able to adequately provide the remedies which are sought as accountability and reparations for victims and survivors of sexual abuse’.Footnote ⁵¹ IICSA’s analysis indicated a number of limitations to even bespoke reparation schemes: acknowledgement and apology may not be feasible where offending individuals or institutions no longer exist or do not want to engage with a redress process;Footnote ⁵² a redress scheme may not afford victim-survivors a ‘day in court’, which may be seen as beneficial; a common experience or tariff approach may seem limited or impersonal.Footnote ⁵³ In addition, if the reparation scheme is not funded by the responsible institution, it bears little difference to existing statutory schemes and does not communicate any sense of accountability for the responsible institution.Footnote ⁵⁴ The Northern Irish and Scottish redress schemes were the result of extensive lobbying and negotiation by victim-survivors.Footnote ⁵⁵

The RIRB and the Magdalene Laundries redress scheme in Ireland were the result of advocacy from victim-survivor organisations, but the implementation of the Magdalene scheme in legislation and policy resulted in the weakening of many of the benefits first proposed.Footnote ⁵⁶ The Magdalene Scheme was subsequently found by the Ombudsman to have been maladministered.Footnote ⁵⁷ In 2019 consultations with government, many survivors described their experiences of the RIRB process as adversarial, difficult, traumatic, and negative while Caranua was described as bureaucratic and unnecessarily unwieldy.Footnote ⁵⁸ Sinead Pembroke found during her research on CICA and RIRB that, ‘the majority of survivors that were interviewed, felt the inquiry and redress process triggered feelings of shame and stigma in relation to their time in the institution’.Footnote ⁵⁹ In addition, many participants also felt that ‘their solicitor had benefitted financially from their personal trauma’.Footnote ⁶⁰ Fionna Fox and AnneMarie Crean note: ‘Victims report that the Redress Board was adversarial, confrontational and often times antagonistic, particularly when their claims of abuse were denied by the respective Religious Order.’Footnote ⁶¹

In the United States, while Congress hoped the Indian Claims Commission would be a means of avoiding litigation, it in fact adopted the culture and practices of the courts, and its hearings became long adversarial affairs.Footnote ⁶² Jennifer Balboni and Donna Bishop note that in Boston in the United States, clerical sexual abuse survivors ‘detested’ the sense that they were in competition with other survivors for a fixed pot of money, which was awarded based on a ranking of who was most ‘damaged’.Footnote ⁶³

The majority of existing schemes consist of financial payments to victim-survivors. In a majority of cases, victim-survivors who engaged with a reparation scheme were obliged to waive rights to sue government or church entities for similar claims of abuse.Footnote ⁶⁴ This requirement is typically intended to incentivise participation in the scheme and avoid double compensation. Disappointment with the amount received is a common finding across several schemes.Footnote ⁶⁵ Survivors were unhappy when the Western Australian government reduced the maximum payment under its Redress WA scheme from $80,000 to $45,000, due to a larger than expected number of applicants.Footnote ⁶⁶ In Ireland, Enright and Ring note that although the RIRB scheme was announced as being intended to provide compensation roughly equivalent to civil litigation, ‘the average payment was roughly half that made in successful civil cases against religious orders’.Footnote ⁶⁷

In addition to financial payments, several schemes provided access to counselling or reclaiming medical, educational, or legal expenses.Footnote ⁶⁸ Several schemes were also accompanied by apologies, addressed separately in Chapter 9. Several of the more ambitious schemes also contained elements of memorialisation and museums, regrettably beyond the scope of this book. Some schemes address reparations for cultural property, such as the 1990 US Native American Graves Protection and Repatriation Act (NAGPRA).Footnote ⁶⁹ In Australia, some reparation packages do not have financial payments to survivors but instead focus on access to services and other benefits. For Forgotten Australians, one of the principal forms of redress in this period was the establishment of Find & Connect Support Services in 2010. It provides information on family tracing, personal records, counselling, and other support for all those placed in Australian orphanages, children’s homes, and other institutions. The website was developed by ‘a team of historians, archivists, and social workers’.Footnote ⁷⁰ A 2014 evaluation of the service found it ‘demonstrated considerable progress in meeting the needs of the Forgotten Australians and Former Child Migrants who are using their services’, though noting some regional and institutional variation in access to records.Footnote ⁷¹

Existing empirical and anecdotal evidence suggests that while victim-survivor empowerment may be experienced in advocating and applying for reparations, the experience of satisfaction or benefit from such interactions may be fleeting. Daly also notes that participation can be both a justice interest and an emotional burden to survivors: ‘Participation itself can create emotional turmoil and dredge up bad memories. Complex processes and delays compound the problem.’Footnote ⁷² As a result, while survivor participation in advocacy design and implementation of reparation schemes may offer an episodic experience of empowerment, without more it is unlikely to change the structural distribution of power or the manner in which knowledge is shared across power in state or church institutions. In doing so, participation may also cause significant distress to survivors. Schemes, such as the RIRB and Magdalene schemes in Ireland, have proved largely unsatisfactory from survivor perspectives. Although several schemes combine financial payments with access to health services or information tracing, further research is needed to assess whether and how these schemes contributed to improving outcomes for survivors.

8.4.2 Dimension 2: Structure of Reparations

Existing reparation schemes largely operate within, rather than change existing legal and political structures of power. First, victim-survivor participation with these schemes is likely to intersect with the structural feature of the expertise (or lack thereof) of state and church officials who will negotiate, design, and implement reparation schemes and who, as Stephen Winter notes, have the advantage of being ‘repeat players’, including ‘the capacity to deploy long-term strategies that develop favourable precedents and rules. Whereas survivors usually participate in only one case (their own), the state employs experts who conduct hundreds of cases, enabling those officials to develop personal relationships with adjudicators, cultivate a reputation for credibility, and learn from experience.’Footnote ⁷³

Second, no national reparation scheme has attempted to be comprehensive, and instead many schemes are received with victim-survivor unhappiness at perceived limitations in the completeness, scope, and comprehensiveness of reparation schemes. Completeness refers to the ‘ability of a programme to reach every victim, that is, turn every victim into a beneficiary’.Footnote ⁷⁴ In some instances, the geographical scope is narrow, excluding some victims in the state. In the absence of nationwide reparation schemes in the United States regarding racial violence, several state- and city-level reparation initiatives have emerged.Footnote ⁷⁵ Similarly, some states in Australia provided reparations for the Stolen Generations, with the national government only doing so in 2021. Narrow scope can occur even in schemes related to closed institutions nationwide. The Irish Magdalene Laundries scheme also initially failed to include all relevant institutions associated with Magdalene Laundries.Footnote ⁷⁶ In making such determinations of scope, Claire McGettrick et al emphasise how the state and church sought to retain power and control of the process of survivor applications, with the relevant religious order ‘verifying’ a survivors’ ‘duration of stay’.Footnote ⁷⁷ Other criticisms relate to the comprehensiveness of the schemes, which refers to the types of crime or harm that reparations seek to redress.Footnote ⁷⁸ The majority of reparation schemes for historical abuse relate to child sexual abuse. This reflects the focus both of inquiries and of accountability mechanisms discussed in Chapters 6 and 7. This can be seen in the Australia National Redress Scheme, limited to sexual abuse, or in the IRSSA, which excluded violations of Indigenous cultural rights. The Magdalene Laundries scheme only provided redress for the duration of stay in these institutions and not for forced labour or any other human rights violations.Footnote ⁷⁹

Even the broadest schemes do not claim to address the full scope of historical systems of harm and oppression, such as slavery, settler colonialism, or patriarchal power structures. Individualised schemes are important to recognise the lived experience of victim-survivors of particular harms. However, it is also significant to frame those individualised experiences as part of larger patterns of harm, particularly if reproduced over time as historical-structural injustices. Catherine Lu argues, ‘In cases where structural injustice enables widespread, coordinated, legalized, and normalized individual, collective, or corporate wrongdoing … a narrow account of reparation that aims to settle accounts only between the particular agents involved is no longer appropriate for determining the field of responsible agents for victim reparations.’Footnote ⁸⁰

There is some evidence of the potential for reparations to contribute in this way. Anti-systemic schemes begin by providing compensation for detention within an institutional context that was legal at the time it took place, which may offer flat reparation per year institutionalised, and/or additional reparation for specific harms alleged, such as physical and sexual abuse or neglect.Footnote ⁸¹ Daly is in favour of this approach: ‘by linking money to time spent in an institution, the amount may better symbolize claimants’ realities of institutional life than a tort logic of “pain and suffering”, which is tied to incidents of abuse.’Footnote ⁸² The provision of reparation for detention within an institutional setting that was legal at the time it took place demonstrates the ability of states and churches to revisit historical contexts and recognise moral and political wrongdoing, rather than rely merely on the settlement of legal claims alone. This opens up the potential for reparations to be provided for other historical contexts outside institutional settings, including to descendants.

Providing reparations for historical-structural injustices, such as the legacy of slavery and Jim Crow in the United States, will require extending eligibility for reparations to the descendants of those who suffered historical harm as well as those who suffer contemporary forms of harm. Descendants may claim eligibility by arguing either that the historical injustice has enduring effects in the present or that as heirs to original victims they are entitled to remedy.Footnote ⁸³ Evans and Wilkins note that these arguments remain challenging, ‘because the exact influence of specific past wrongs upon specific present conditions is difficult to determine’.Footnote ⁸⁴ However, of existing schemes, eligible relatives or estates of deceased victims/survivors were able to apply for and/or receive payment in four schemes in limited circumstances, including the Irish RIRB scheme and Canadian Residential Schools scheme. Other schemes in Western Australia and Jersey explicitly excluded descendants. Other schemes, such as the Scottish Redress Scheme, have recognised the need for priority groups within the pool of eligible applicants, typically those of advanced age or subject to life-threatening or terminal illnesses. As a result, it remains possible to construct a reparations scheme with an inter-generational scope, where there is sufficient political will to support this. The problem is political, not legal, and reflects the limits of law’s ability to change culture and power structures alone. Interrogating the critiques of the structure and limits of existing schemes reveals their formal elements are capable of adaption to address historical-structural injustices in a more direct and comprehensive manner.

8.4.3 Epistemic Justice and Reparations

Reparations are often delivered through administrative, rather than litigation-based processes, claimed to be more efficient and less traumatic for survivors than litigation.Footnote ⁸⁵ However, the existing cases studied here challenge that assumption. Limited survivor voice and epistemic justice in these schemes compound their direct and structural limitations. In the cases of private settlements, it is impossible to assess whether any epistemic justice is achieved for survivors or indeed the broader emotional experience for survivors. The lack of transparency in church settlements of clerical sexual abuse cases makes it difficult for survivors to compare settlements and share experiences of engaging with church authorities and lawyers and for such settlements to have any public communicative value, even if individual victim-survivors receive private apologies or appropriate processes.

Of government-mandated schemes, only some provided the opportunity for oral hearings, with others relying on the submission of documents or application forms by survivors. Daly also notes that the larger the pool of potential claimants, the less likelihood of oral hearings or provision of benefits and services beyond financial compensation.Footnote ⁸⁶ Regarding the Canadian IRSSA, there was both a flat CEP and an individualised Independent Assessment Process. In evaluating the CEP, Reimer et al noted that a third of those in their sample ‘felt they were not believed in their first application’.Footnote ⁸⁷ Fifteen per cent recognised reparations as symbolically important as a form of acknowledgement and recognition of wrongdoing.Footnote ⁸⁸ However, Reimer et al also note engagement with this redress process was re-traumatising and distressing for some and was associated with a rise in ‘accidental deaths, suicides, and homicides’, which contributed to a ‘general demoralisation’ in some communities.Footnote ⁸⁹ Other victim-survivors viewed the payments as inadequate or as hush money.Footnote ⁹⁰ Participants generally agreed that the compensation process seemed ‘inconsistent, leaving them at the mercy of an outside agency in control of yet another aspect of their lives’.Footnote ⁹¹ In Jennifer Matsunaga’s empirical research, survivors criticised the CEP process as both faceless and requiring them to prove their presence in a residential school, despite a lack of ease in retrieving state and church records.Footnote ⁹² This research indicates the limits of reparations as a site of epistemic justice, with one government official stating: ‘many application forms would come in covered in writing and sometimes there would be pictures and we just didn’t know what to do with all that extra information’.Footnote ⁹³ Negative victim-survivor experiences were reported regarding the redress scheme for the Nova Scotia Institutions, concluding claimants were ‘presumed to be guilty of fraud and not treated with respect’.Footnote ⁹⁴ Subsequent interviews of victim-survivors describe negative experiences of feeling disrespected and not believed.Footnote ⁹⁵

Regarding Irish redress schemes, Sinead Pembroke notes: ‘the redress scheme application procedure itself (writing a detailed statement, and an assessment by a psychologist in order to verify their trauma), resulted in psychological wounds being opened up after years of consignment to the deepest reaches of the mind. This had a negative effect on some survivors’ personal lives, and resulted in marital breakdowns.’Footnote ⁹⁶ AnneMarie Crean and Fionna Fox write, ‘The Redress Board in effect became another forum where once again the balance of power was unfairly tilted against the victim.’Footnote ⁹⁷ In particular, they emphasise that ‘victims report a lack of understanding of their individual circumstances coupled with a failure by the Board to understand and empathise with their past experiences of abuse and ongoing issues as a result’.Footnote ⁹⁸ Máiréad Enright and Sinéad Ring frame such experiences as testimonial injustices, ‘where victim-survivors are prevented from acknowledgement as a giver of knowledge and as an informant’, noting it a particular injustice arising where it relates to the survivors’ construction of their own childhood.Footnote ⁹⁹ They note the state’s broader responses to historical abuses constitute a form of epistemic injustice: ‘Redress schemes have financialized the wrongs done to victim-survivors and eclipsed other dimensions of their claims. Victim-survivors feel that the injuries they suffered are not heard and recognized as wrongs.’Footnote ¹⁰⁰ The Magdalene Laundries scheme was criticised by the state’s own Ombudsman for denying the evidential value of women’s own testimony: ‘There was an overreliance on the records of the congregations and it is not apparent what weight if any was afforded to the testimony of the women and/or their relatives.’Footnote ¹⁰¹ These forms of epistemic injustice confirm that administering reparations through less complex means is no guarantee of avoiding distress to survivors. Instead, the limitations of the approaches adopted across jurisdictions demonstrate the real risk of re-traumatisation for survivors seeking reparations. The lack of capacity of those administering redress schemes to hear, accept, and acknowledge the experiences and voices of victim-survivors confirms reparations as a major site of epistemic injustice in dealing with the past. In attempting to simplify processes, whether through documentary applications or individualised assessments, many redress schemes demonstrate the inability to address the needs of victim-survivors and caution expectations for reparations for historical-structural abuses.

8.4.4 Ontology and Reparations

In some instances, particularly the settlement of class actions, reparations may represent the only mechanism for addressing the past and may by design fail to capture elements of truth seeking, accountability, or apology discussed in other chapters. As a result, reparations or settlements may be the sole contribution to the development of an ontological framing of victim-survivors. In the absence of an alternative narrative communicated around the redress, Daly concluded that survivors ‘equated money with their injuries, suffering, and value as a person’, which inevitably was re-traumatising.Footnote ¹⁰² Many survivors ‘objected to the use of categories to define and rate their childhood abuse experiences’, one saying ‘it’s like they were labelling beef’.Footnote ¹⁰³ Negative experiences of Canadian redress schemes are united in the view that ‘the payment was interpreted as monetary exchange for abuse or injuries suffered, and a survivor’s “worth” was not recognized’.Footnote ¹⁰⁴

The absence of communicative messages may also be significant. For instance, the Irish government has failed to memorialise either context of the industrial schools or Magdalene Laundries, re-emphasising the financial dimensions of redress in both instances and rendering redress something provided to individual applicants alone. Instead, in the absence of any mention of rights or responsibility, the meaning of the scheme becomes nebulous. McGettrick et al write regarding the Magdalene scheme: ‘The government’s designation of the Scheme as “ex gratia” effectively functioned as a declaration that neither State departments not religious congregations were to be treated as wrongdoers who might be inclined to treat survivors with a lack of respect.’Footnote ¹⁰⁵ The ex gratia approach excludes the possibility of recognising survivors as rights holders and the state and church as duty bearers.

Sunga argues that ‘unless there is a clear articulation that a monetary award does not signify a market transaction, money will tend to indicate some form of exchange for abuse injuries.’Footnote ¹⁰⁶ The consequences are that money payments may leave survivors to feel that ‘their worth has not been understood or acknowledged by the party responsible for the abuse’.Footnote ¹⁰⁷ For Sunga, an alternative and explicit symbolism is necessary.Footnote ¹⁰⁸ Sarah Pritchard suggests the potential for such money to communicate the vindication of survivor rights and the responsibility of offending actors.Footnote ¹⁰⁹ Daly notes one common critique emerges that the opportunity for reparations to communicate a clear symbolic message was not taken: ‘Most survivors did not see the payment as symbolic, as recognition for injury and solace for pain. Instead, they equated the amount received in an individualized scheme to the level of abuse and injury they had experienced and to their “worth”. They did not understand why others received more money than they did.’Footnote ¹¹⁰ As a result, Daly concludes the word ‘compensation’ should be removed from redress schemes, which should avoid any link to a market value meaning and make explicit links to other non-monetary forms of redress or mechanisms to address the past.Footnote ¹¹¹

An emphasis on symbolism challenges the dominant ex gratia approach to reparations for historical abuses, based more on the benevolence of the provider of the scheme than as a matter of recognition of rights. As a result, the symbolism of reparations involves questions of the epistemic justice and ontological power involved in reparations – what are reparations understood to symbolise, who gets to be heard on this issue, and how does it relate to the broader meaning and knowledge in society? The role and participation of victim-survivors will be key in legitimating reparations in their content, processes, and potential symbolism. Lisa LaPlante argues that ‘the “positionality” of victims will influence what they perceive to be necessary to feel repaired’ and that a government should ‘adopt a participatory approach while planning and implementing its reparation programs to accommodate better and manage the multiple justice aims and expectations of victims’.Footnote ¹¹²

In the case of reparations in settler colonial contexts, existing schemes remain predicated on existing settler authority, structures, and social ontology, and involve ‘inserting the Indigenous person into a reaffirmed colonial universe, where practices of economic, symbolic, and linguistic domination sit unchallenged’.Footnote ¹¹³ Rebecca Tsosie and others suggest that reparations for Indigenous peoples involve asserting claims for recognition of cultural and political rights as separate nations.Footnote ¹¹⁴ Regarding Indigenous land claims in Australia, Aileen Moreton-Robinson argues that ‘Indigenous ontological relations to land are incommensurate with those developed through capitalism, and they continue to unsettle white Australia’s sense of belonging, which is inextricably tied to white possession and power configured through the logic of capital and profound individual attachment’.Footnote ¹¹⁵ Recognition of these dimensions of Indigenous claims challenges a synchronic or commemorative account of reparations and requires reparations to be part of a broader dismantling of systems of assimilation, rather than part of them. To date, existing reparations processes neglect this dimension.

9.2.1 Apologies and Agency

Apologies can be individual, institutional, or communal in nature. Apologies tend to be theorised from the interpersonal to state or communal levels.Footnote ⁵ While individual apologies may therefore be complemented with other apologies, they should not be equated.Footnote ⁶ Aaron Lazare notes that apologies involve an exchange of power and shame between offender and offended that may rehabilitate the offender and empower the offended.Footnote ⁷ McAlinden argues that ‘an apology may assist in: the displacement of internalised shame or self-blame by victims; the acknowledgement of blame and expression of shame and remorse by wrongdoers; and the acceptance of responsibility by institutions of Church and State and wider society for their involvement in sustaining abusive regimes’.Footnote ⁸ There is some practice of individualised and personal apologies from perpetrators and institutions responsible for historical-structural abuses.Footnote ⁹

9.2.2 Apologies and Structure

In the absence of empirical data on individualised apologies, the primary focus of this chapter is on official apologies by those representing state or church institutions. For Stephen Winter, state apologies for historical abuse warrant special scrutiny, as they will likely involve people who had ‘nothing to do with the injustices being apologised for’Footnote ¹⁰ but instead reflect the continuous claim to authority from state institutions.Footnote ¹¹ State apologies may also seek to apologise on behalf of society as a whole, including societies long deceased. As a result, official apologies could be apt for addressing historical-structural injustices that involve both liabilities of specific actors and broader responsibility based on social connection.Footnote ¹²

However, the structural power of the legal system has the potential to further support or undercut the impact of official apologies. Without more, an apology could be interpreted as an admission of legal liability and responsibility.Footnote ¹³ However, the United States, United Kingdom, Canada, and Australia have introduced legislation to protect apologies from implying legal liability.Footnote ¹⁴ Apologies could include or exclude the language of rights and responsibilities, or prefer a more ambiguous or moralistic discourse designed to avoid legal accountability. As a result, it remains critical that apologies are not seen as an alternative to truth, accountability, or material reparations but as a mechanism to accompany such reparations as a form of acknowledgement and recognition.Footnote ¹⁵ Patricia Lundy and Bill Rolston argue that in the absence of accountability and official acceptance of responsibility, official apologies can function to shield state institutions from scrutiny or responsibility and to deny effective redress and voice to victims.Footnote ¹⁶ For Martha Minow, unless accompanied by material acts such as redress reflecting responsibility for wrongdoing, an apology ‘may seem superficial, insincere, or meaningless’.Footnote ¹⁷ Finally, the religious heritage of public apologies may complicate their use for historical abuses involving church institutions and actors.Footnote ¹⁸ Victim-survivors may feel unwilling or unable to engage with theologically motivated concepts or practices.

9.2.3 Apologies and Epistemic Justice

Apologies represent a potential site to address epistemic injustice. Victim-survivors can be involved in the drafting and presentation of an apology, and their voices and experiences can be included in the text of the apology itself. McAlinden notes that an unambiguous apology provides a form of epistemic justice for survivors and can validate victim experiences, providing ‘recognition and the overt removal of blame from victims’.Footnote ¹⁹ The drafting, delivery, and timing of a political apology are thus critical.Footnote ²⁰ Alice McLachlan notes that the value of an apology may lie in ‘the process of constructing what ultimately gets said – who is involved, how equal and collaborative the process is, and who is chosen to speak – rather than the isolated act of speaking those words sincerely’.Footnote ²¹ Such engagement represents a site of episodic power for survivors, who may be given a role in shaping the narrative, timing, and material consequences of the apology. This interaction may briefly shift state-church and survivor power dynamics. However, MacLachlan notes that in contrast apologies can serve to reassert state control over the rhetorical space: ‘asserting a particular narrative while demanding that the hearer now respond’.Footnote ²² An institutional or national leader can, through the act of apology, cast themselves as right-thinking and enhance their legitimacy. For Joram Tarusarira, a more ambitious, transformative apology ‘incorporates the reparative and rehabilitative dimensions but adds an epistemic dimension by uprooting the logic behind the offence, thereby ensuring its non-repetition’.Footnote ²³ In this regard, apologies may function to address prior epistemic and ontological injustices, where survivor voices, experiences, and equal status are amplified and when apologies are combined with other transitional justice initiatives. Such an approach seems necessary in light of the context in which historical abuses have taken place and their replication as historical-structural injustices.

9.2.4 Apologies and Ontology

The continuous nature of some state and church institutions may also result in apologies engaging national identity and ‘the emotional fabric of a nation’.Footnote ²⁴ Linking an apology to broader national and religious myths involves calculations and sensitisation regarding whether and how to recast a new political vision for a state or church, or to reaffirm the claimed values of these institutions.Footnote ²⁵ Celermajer describes this as an act of ‘re-covenanting’ – acknowledging a collective failure to live up to normative ideals in the past and renewing a commitment to live up to those ideals in the future.Footnote ²⁶ Janna Thompson suggests an apology ‘signals the commitment of those who make it, sponsor it and support it to a national undertaking, and whether we can regard an apology as meaningful depends on our reasons for thinking that this undertaking has been initiated and will continue’.Footnote ²⁷

Several authors affirm the potential value of political apologies for their moral recognition of the status, rights, and harms suffered by victim-survivors.Footnote ²⁸ Such moral recognition can reaffirm what was and should always have been true – that the wrongful conduct violated the rights, dignity, and status of victim-survivors and their families. In this regard, apologies may function to shift the ontological power dynamics by recognising the worth of those victim-survivors previously deemed ‘moral dirt’, ‘savage’, and so on.

In addressing national identity or myths, Cindy Holder notes that official apologies involve state officials repudiating one theory of the state and providing an alternative, which justifies an apology for past state action. In doing so, ‘contemporary officials accept that prior officials believed that what was done followed from their positions but deny that prior officials were right about this’.Footnote ²⁹ Similarly for Pablo de Greiff, an apology requires affirming a norm that the perpetrator and victims recognise as valid and binding.Footnote ³⁰

As a result, states and churches will only apologise for transgressing some norm they believe important. They may resist apologising for the commission of harms, on which their existence or authority continue to rely – yet this dimension of an apology may be critical to ensure the non-recurrence or reproduction of structures of harm. Cuthbert and Quartly note: ‘it is not enough to say sorry without fully articulating the grounds on which the wrongs were done. It is only through a sustained and historically informed acknowledgment of the power structures that lead to such injustices that we can ensure that they are not repeated.’Footnote ³¹ For settler colonial states, it may be possible to apologise for specific sub-sets of harms, such as forced child migration or institutionalisation, but may remain impossible to apologise for the structure of settler colonisation itself. Churches and religious orders may apologise for harms committed in the conduct of their missional and salvific work but not for the claimed authority or idea behind the work as a whole. To do so would expose church and religious authority to the idea of theological error and fallibility. The willingness or capacity of a state or church to apologise for its very existence or authority structure may remain elusive.

Apologies for historical-structural abuses may thus operate at the limits of the potential for epistemic or ontological justice. Jacques Derrida suggests that the value of apology is at the highest when the challenge is at the highest,Footnote ³² when it is confronted with the impossible tasks of issuing or accepting an apology for an unforgivable wrong.Footnote ³³ An apology that can explicitly state that it alone cannot fix unfixable harms and can point beyond itself to material and structural efforts addresses the causes of wrongdoing and offers a more comprehensive and honest narration of the problems faced when addressing historical abuses. An effective apology for historical-structural injustices thus needs not only acknowledgement of wrongdoing, responsibility, and victim suffering but also the national myth or claims of authority on which those harms were based, and finally a new vision for what the future of a state and/or church that can incorporate historical abuses into the narrative, myth, and self-image of the institution should look like. Such apologies offer the means to demonstrate continuities of historical violence with present injustices and to illustrate the national and religious understanding of responsibility for both of these forms of harm. Regrettably, these dimensions have proven the most elusive in the practice of apologies regarding historical abuses.

9.2.5 Apologies for Historical Abuse and Emotion

Based on existing examples, state and church apologies are likely to use emotive language and may claim to have an emotional effect on speakers, victim-survivors, members of institutions, and society at large, which may or may not be validated in the context of further material consequences flowing from an apology. Govier and Verwoerd suggest in an effective apology, the perpetrator’s emotion, especially regret, may provide a reason for victims to move from resentment to acceptance.Footnote ³⁴ An emotional apology may indicate an offender ‘gets it’ and takes responsibility.Footnote ³⁵ MacLachlan notes that no one single emotion entirely captures what it is to be apologetic, which may include: ‘sorrow, guilt, regret, shame, or anger’.Footnote ³⁶ As outlined in Appendix 3, in the non-exhaustive list of ninety-five apologies, thirty-one make reference to regret and twenty-two contain reference to shame. Mihai suggests that ‘shaming a community into acknowledging its violent past is a risky political strategy that can trigger a conservative backlash’.Footnote ³⁷ Instead, she suggests an apology ‘must engage all possible objections in a way that goes back to the community’s pre-existing guiding principles and shows that, in spite of their plurivocality, these principles require that we firmly reject certain dangerous visions of the past’.Footnote ³⁸

McAlinden suggests reintegrative shaming may work especially well for individual apologies and fostering offender accountability, ‘via the censure of wrongdoing rather than wrongdoers’.Footnote ³⁹ However, as discussed in Chapter 5, the use of shame also risks reharming victim-survivors at structural and official levels. Sara Ahmed highlights shame’s contradiction: ‘It exposes the nation, and what it has covered over and covered up in its pride in itself, but at the same time it involves a narrative of recovery as the re-covering of the nation.’Footnote ⁴⁰ As a result, apologies may serve to alleviate the interpersonal and lived experience of shame from victim-survivors but may be more problematic when expressing a state or institutional form of collective shame that results in a closure and limited engagement with the causes of historical-structural abuses by these actors. Others doubt whether institutions such as churches or states can effectively express emotions relevant to interpersonal apologies and instead should be judged exclusively by the policy ‘consequences they trigger’.Footnote ⁴¹ Consequently, in the absence of other meaningful policy consequences, an apology, especially one framed in shame, may seek to settle historical abuses determinatively and in an exclusionary fashion. An apology is part of a national or institutional commitment to addressing injustice, not a substitute for such a commitment.

9.3.1 United States

Several states have provided for apologies regarding the treatment of Native Americans, slavery, and Jim Crow.Footnote ⁴² These limited US official apologies arose from the initiative of government officials and not as a response to activist pressure.Footnote ⁴³ Speaking on behalf of the Bureau of Indian Affairs (BIA), Kevin Gover, also a citizen of the Pawnee Nation, issued an apology in 2000 for the historical treatment by the BIA of Native peoples.Footnote ⁴⁴ The apology received mixed reactions, with some Native leaders appreciating it while others concluding that an apology without addressing ‘intrusions on tribal sovereignty, under-funding of treaty-mandated Indian programs and the evasion of responsibility for fixing the trust management system’ was not adequate.Footnote ⁴⁵ Such an apology did not challenge the broader ontological or structural conditions facing Native peoples. In 2009, President Barack Obama signed a further apology into law, which acknowledged responsibility for historical abuses to Native Americans but excluded any potential liability or reparations. Obama never read it aloud, leading some to question whether it constitutes a meaningful apology.Footnote ⁴⁶

Apologies regarding slavery are limited both structurally and in terms of challenging national myths and identity. Beginning with Virginia in 2007, several state-level apologies were issued regarding slavery and Jim Crow. Angelique Davis argues the text of these apologies

In addition, several of these apologies explicitly exclude the possibility of reparations, minimising the potential material impact of the apologies and undermining the symbolic or communicative dimensions.

In addition, in 2008, Congress passed a resolution offering the federal government’s first formal apology to African Americans on behalf of the people of the United States.Footnote ⁴⁸ The apology mentioned the wrongs committed against African Americans who suffered under segregation laws known as ‘Jim Crow’ laws. In 2009, the US Senate apologised for lynching campaigns against African Americans throughout much of the previous century.Footnote ⁴⁹ However, in the absence of meaningful advancement of public inquiries or reparations regarding the treatment of African Americans, the acceptance and significance of the apology risk being hollowed over time. Tuğçe Kurtis et al suggest that the enduring beliefs in American exceptionalism and manifest destiny form part of collective identity in the United States and are formidable barriers to any serious reckoning with historical abuses.Footnote ⁵⁰ Unless there is meaningful national pressure and commitment to reimagine national self-image and materially address the consequences of historical abuses, these federal- or state-level apologies are likely to be in vain.

9.3.2 Canada

The government and churches of Canada have offered several apologies to Indigenous peoples, particularly regarding residential schools. While they have increased in scope and recognition of wrongdoing, the apologies persist in maintaining the legitimacy of an integrationist approach to nation-building and avoid challenging settler ontology, thus limiting their transformative potential regarding Canada’s relationship with Indigenous peoples. In 1998, the Minister for Aboriginal Affairs apologised for ‘the tragedy of physical and sexual abuse’ at residential schoolsFootnote ⁵¹ but did not admit state responsibility. James and Stranger-Ross note that this statement ‘minimized Canadian wrongdoing by presenting as incidental sites of abuse what were in fact manifestations of a state-mandated policy of cultural destruction that was abusive in its very conception’.Footnote ⁵² By 2005, several Indigenous organisations were demanding ‘a more narratively comprehensive and ceremonially robust residential schools apology’,Footnote ⁵³ amid growing political and financial pressure on the government to apologise due to the extensive litigation discussed in Chapter 7.Footnote ⁵⁴

In 2008, Canadian Prime Minister Stephen Harper apologised to Canada’s Indigenous community for its residential school policy.Footnote ⁵⁵ Harper recognised that the primary purpose of the schools had been to remove children from their families to assimilate them into the dominant culture, stating ‘these objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognise that this policy of assimilation was wrong, has caused great harm, and has no place in our country’. Significantly, after years of denial, this apology did not qualify state responsibility and explicitly used the word ‘apologise’.Footnote ⁵⁶

The apology led to a range of responses from Indigenous leaders and communities. Phil Fontaine, then National Chief of the Assembly of First Nations, responded that the apology marked ‘a new dawn’ in the relationship between Aboriginal people and the rest of Canada.Footnote ⁵⁷ In contrast, Clem Chartier, President of the Métis National Council, noted that many issues regarding the relationship between Métis people and residential schools were still unresolved.Footnote ⁵⁸ The timing of the apology also prompted a range of responses. Holder suggests that an apology that wrestled with the TRC’s findings might therefore have provided a more useful basis for promoting well-informed Canadian discussions about self-determination and political transition in Indigenous–settler relations.Footnote ⁵⁹ However, James and Stranger-Ross note the irony that the government had originally insisted on awaiting the conclusions of the TRC, which had been rejected by Indigenous peoples and advocacy organisations as obfuscation, particularly given the elderly age of many residential school survivors.Footnote ⁶⁰

Neil Funk-Unrau concludes that while Harper’s apology acknowledged past wrongdoings and committed to improved future relations, it does not fully address the contemporary disparities arising from this historical injustice.Footnote ⁶¹ Several scholars concur that the apology had the effect of bracketing off the schools’ policy as an aberration and of absolving contemporary Canadians from responsibility for historical and contemporary injustices.Footnote ⁶² Although the apology took responsibility for residential schools, ‘it was silent about the policy’s underlying, colonial goal: to weaken the ability of Indigenous communities to resist the settler colonialism’.Footnote ⁶³ Holder attributes this omission to the influence of Canadian integrationist conceptions of citizenship and democracy, which preclude seeing the imposition of state structures on Indigenous communities as political or moral wrongs.Footnote ⁶⁴ Jennifer Henderson and Pauline Wakeham emphasise that the limiting and isolation of the apology in this manner does not disturb Canada’s national image as a ‘progressive beacon’, nor does it enable linkages between this apology and issues of Indigenous land restitution, sovereignty, or contemporary reproduction of historical-structural injustices.Footnote ⁶⁵

In 2017 and 2019, Justin Trudeau continued the use of official apologies with a further apology to Innu, Inuit, and Nunatu Kavut people of Newfoundland and Labrador residential school survivors for the federal government’s treatment of Inuit with tuberculosis. The former group had been excluded from the Harper apology as the residential schools in those regions had not been run by the federal government. These apologies continue the structure of Harper’s apology in offering genuine regret, responsibility, but by being limited in not repenting of the broader colonial and settler contexts. A national apology to the missing and murdered Indigenous women and girls recognised in 2019 as being subjected to genocide remains outstanding. The Canadian experience with apologies shows that apologies can result from significant political and activist pressure and represent significant national moments but still also form an incomplete narrative regarding dealing with the past that does not challenge the legitimacy of the Canadian state or its myths of the benevolent peacemaker.

9.3.3 Australia

Australia is among the most ‘apology friendly’ countries in the world. While again evidencing growth in the narrative sophistication of the apologies offered, Australia’s apologies remain limited by the narration of national identity, which does not problematise the settler democracy conception of the state and society.

The 1997 Bringing Them Home report called for those organisations responsible for forced removals to deliver apologies to Indigenous peoples.Footnote ⁶⁶ Haydie Gooder and Jane Jacobs note that several state leaders and police forces had offered apologies on behalf of their governments and their constituents for their role in these laws, which ‘amplified the absence of an official apology from the Prime Minister’.Footnote ⁶⁷ In May 1997, Prime Minister John Howard admitted past injustices to Indigenous Australians but also stated that ‘Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control’. Gooder and Jacobs noted that this received ‘jeers from an increasingly dissatisfied audience’ of Indigenous peoples, prompting Howard to go off script and ‘with raised voice and clenched fist, he defended recent government policies that had significantly eroded the material and symbolic gains that had come with recognition of native title in the early 1990s’.Footnote ⁶⁸

In contrast, Prime Minister Kevin Rudd’s two national apologies were products of prolonged agitation and public inquiry.Footnote ⁶⁹ During the 2007 election campaign, Rudd promised a formal apology to Australia’s Indigenous peoples, but as Michael Tager notes, to win parliamentary support for the apology, the new government rejected compensating the ‘Stolen Generations’, and Indigenous Affairs Minister Jennifer Macklin asserted, ‘the apology will be made on behalf of the Australian government and does not attribute guilt to the current generation of Australian people’.Footnote ⁷⁰ Such an approach expressly disavows the ongoing impact of historical-structural injustices in the present. Rudd delivered the apology in parliament in 2008 and it received live national television coverage with approximately a hundred members of the Stolen Generations in attendance.Footnote ⁷¹ Rudd admitted that the laws passed by former parliaments created the Stolen Generations and, therefore, those institutions should apologise. He received generally positive responses to his apology from Aboriginal leaders.Footnote ⁷² Celermajer notes the inter-generational nature of wrongdoing challenged many Australians: ‘An apology seemed to accuse them, when they could not see what they had done wrong.’Footnote ⁷³ AD Moses surveys available Indigenous responses and concludes:

However, the impact of the apology may have dissipated over time.Footnote ⁷⁵ Damien Short suggests that while some Indigenous peoples may have accepted the apology without compensation, this remained an outstanding issue for others, which may have diminished the impact, quality, and sincerity of the apology.Footnote ⁷⁶ In the absence of a recognition of Indigenous sovereignty, the apology failed to challenge the settler ontology in which Australia continues to operate.

In 2009, Rudd also made a formal apology on behalf of the nation to Australian-born children in care, often known as ‘Forgotten Australians’, and to former child migrants. Cuthbert and Quartly note that child removal was both the basis of apology to the Stolen Generations and also became the basis on which other non-Indigenous victim-survivors of historical abuse pursued their claims for an official apology.Footnote ⁷⁷ The authors note, however, that such an approach risked reducing injustice to Indigenous peoples as relating to the Stolen Generation alone, and repositioned and de-indigenised historical abuse to mean only the suffering of children.Footnote ⁷⁸ Cuthbert and Quartly argue ‘by 2009 reconciliation was no longer an exclusively Indigenous issue; and innocence, ideally childhood innocence, appears to be a precondition for receiving a national apology in Australia’.Footnote ⁷⁹

A similar challenge arises in extending an apology to women and to single mothers who were obliged to engage in forced adoption,Footnote ⁸⁰ as in the subsequent apology from Prime Minister Gillard in 2013. The Gillard apology sought to acknowledge the pain, suffering, and coercion experienced by women, men, and children affected by forced adoptions. It pointed towards provision of access to counselling services and to adoption records as a commitment by the state of the need for material consequences. While the apology includes many beneficial components, it did not address the context of patriarchal dimensions to society, of the marginalisation and discrimination against women and single mothers that gave rise to such practices, or any social structures of gendered exclusion that may persist in Australia. Cuthbert and Quartly note:

In 2018, Prime Minister Scott Morrison gave an apology to victim-survivors of child sexual abuse, which arose as a result of the publication of the report of the Royal Commission discussed in Chapter 6. Prior to the apology, the government appointed an independent, survivor-focused Reference Group to advise it on the form and content of the National Apology.Footnote ⁸² The apology received a positive if qualified reception, with media coverage marginalising the Indigenous experiences of child abuse and views of the apology,Footnote ⁸³ with emphasis turning quickly to the need for reparations for victim-survivors, discussed in Chapter 8.

The normalisation of official apologies in Australia may have the effect of raising the minimum expectation of victim-survivors of historical abuse to include a meaningful apology, but also raises the expectation for the apology to point beyond itself to material provision of redress and other elements of transitional justice and attempts to redefine the Australian nation and its relationship to settler colonialism. Shame played a prominent role in Australian apologies, with some Australian commentators suggesting perpetrator shame was a necessary component of individual or social healing.Footnote ⁸⁴ However, Sara Ahmed suggests shame may function as a form of epistemic injustice if the mere expression of shame is seen as ‘sufficient for a return to national pride’. Such references to shame may block ‘the hearing of the other’s testimony in turning back towards the “ideality” of the nation’.Footnote ⁸⁵ By focusing largely on children to the exclusion of other forms of Indigenous harms and on the past as a different moral and political context, to the exclusion of continuities in the present, Australian apologies are inhibited in their potential to form the basis for significant transformation of Australian politics and law in light of historical abuses, whether through reparations, a treaty with Indigenous peoples, or more fundamental recognition of patterns of racism, misogyny, and class discrimination.

9.3.4 United Kingdom

In the absence of significant inquiries into the systemic nature of historical abuses in the United Kingdom, there is limited practice of official apologies.Footnote ⁸⁶ Five British slavery apologies have been issued from 1999 to 2007. The City of Liverpool apologised in 1999. The other four British apologies for slavery arrived on the eve of the bicentenary of the Abolition of Slavery Act 1807. In 2006, Prime Minister Tony Blair expressed ‘deep sorrow’ over Britain’s participation in the slave trade, which he described as a crime against humanity, in a statement deemed a personal reflection and not an official state apology. Mihaela Mihai notes contrasting reactions, with liberal critics noting limited expression of responsibility for atrocities committed by Britain against Africans and limited commitment to addressing the structural injustices caused by the legacy of slavery. Instead, Blair’s account celebrated white abolitionists while ‘effacing the memory of black resistance’.Footnote ⁸⁷ This approach formed a means to talk about historical abuses in a way that ‘limits the impact or influence of what was perceived as a potentially “damaging” event for Britain’s self-image’.Footnote ⁸⁸

On Waterton and Wilson’s account, this limited engagement with responsibility for the past is a form of epistemic injustice as it: ‘skilfully worked to close down critical and dissenting voices from questioning Britain’s responsibilities to contemporary communities. This was not simply a government implemented directive, but rather symptomatic of the manner in which issues of multiculturalism and diversity are talked about in Britain.’Footnote ⁸⁹ In addition, media accounts of the apology suggest that the statement stops short of a formal apology due to fears of a subsequent need for reparations for slavery.Footnote ⁹⁰ In response to these apologies, political and media backlash questioned how one generation could be responsible for wrongs perpetrated by another, particularly at a time when morals were different around the issue,Footnote ⁹¹ and suggested the apology constituted an attack on British history.Footnote ⁹²

In 2010, Prime Minister Gordon Brown made an apology regarding Britain’s role in the Australian child migration scheme. Gordon Lynch notes that Brown inaccurately generalised from the experience of child migrants to Australia in the post-World War II period to the whole child migration process from the nineteenth century.Footnote ⁹³ Lynch concludes that it is problematic if an apology functions to provide public sympathy for historical suffering alone and excludes criminal and civil justice or more nuanced understandings of the past.Footnote ⁹⁴ In addition to these apologies, there was a recommendation in the 2017 Hart inquiry report in Northern Ireland for an apology to victim-survivors of residential institutions, which was delivered in 2022. The broader context of the UK’s shifting and divided global self-image, in the context of Brexit and diminished global influence, may mask complex and underexplored impacts of practices of ‘othering’ and alienation within the territories of the United Kingdom and abroad. It may be the case that space for broader official apologies is especially narrow in this present context. In existing practice, the assumption that apologies can provide closure for historical-structural injustices fails to recognise how such injustices can be reproduced in the present.

9.3.5 Ireland

Ireland has had five official state historical abuse apologies and several from religious orders and churches but all were undermined by the treatment of victim-survivors in other aspects of transitional justice. In 1999, Taoiseach Bertie Ahern accepted the state’s complicity in the abuse of children in residential schools due to the ‘failure to intervene, to detect their pain, to come to their rescue’.Footnote ⁹⁵ The apology announced the establishment of both the inquiry process and redress scheme for residential schools, support services, and limited legislative changes to enable civil action against individual perpetrators. The apology was repeated by Taoiseach Brian Cowen upon publication of the Ryan report in 2009. Emilie Pine notes that the apology lacks recognition of Ireland’s failure to admit and acknowledge abuse in residential schools for decades, especially since the state was made aware of such abuse since the 1970s.Footnote ⁹⁶ While the apology was coupled with an inquiry and redress, the experience of survivors in both of those processes, discussed in Chapters 6 and 8, respectively, is likely to have impacted negatively on perceptions of that apology.

On publication of the McAleese report into the Magdalene Laundries in 2013, Taoiseach Enda Kenny made two statements, including an apology. McAlinden’s interviews with survivors indicate that many survivors valued Kenny’s apology, emphasising its value in separating the Irish state from Catholic and religious influence. Others in turn emphasised that the apology was mere ‘crocodile tears’ in the absence of a meaningful material response from state and church.Footnote ⁹⁷

McAlinden notes that ‘Kenny ends his seminal 2013 apology with reference to a radically transformed Ireland in the present and future based on a new shared normative identity’,Footnote ⁹⁸ emphasising compassion, empathy, and heart. However, such an approach may have been undermined by the apology’s emphasis on shame. The Taoiseach uses the word ‘shame’ three times in his apology, referring to Ireland’s present shameful knowledge of the past, second, a shameful recognition that historical Ireland rejected women institutionalised in Magdalene Laundries and, finally, in describing Ireland’s forgetting of survivors and failing them as a ‘national shame’.

Clara Fisher notes the central role of shame in the 2013 apology related to Ireland’s treatment of survivors of Magdalene Laundries, not the ways in which the women were shamed themselves: ‘Shame, once attached to and produced in Ireland’s “fallen women,” is displaced onto the Irish nation, precisely for its shaming of the women institutionalized in Magdalen Laundries. Interestingly, Kenny does not refer to the Church, to the religious orders, nor to the state as bearers of shame.’Footnote ⁹⁹ In noting Kenny’s attempts to distinguish an abusive past from a more compassionate present that is ashamed of prior wrongdoing,Footnote ¹⁰⁰ Fischer concludes: ‘By creating the distinction between a dark, less feeling, but more-or-less finished past of “Magdalen Ireland” and an enlightened, empathetic present, the Taoiseach’s apology deflects from the contemporary shaming of populations who are similarly constructed as deviant and subjected to problematic state policies.’Footnote ¹⁰¹

In 2021, Taoiseach Michael Martin issued a public apology to survivors of mother and baby homes. The apology frames the Commission report as the ‘definitive account’ of these institutions, which is problematic in light of the report’s limitations. There was no involvement of survivors in drafting the apology. It is arguable that the apology, given the day after the publication of the Commission report, was delivered too soon, especially given that many elderly survivors were still struggling to obtain physical copies of the report. There is no mention of the word ‘adoption’ in the apology, no responsibility for any coercive or forced adoptions or forced labour abuse evident in the claims of survivors. As a result, it remains unclear what the Taoiseach apologises for. The event of the apology raises expectations that the state will react in a meaningful way. However, in light of the prior mistreatment of survivors documented in prior chapters, survivors would be wise to be cautious and suspicious of government processes.

Ireland’s official apologies were well received by some victim-survivors and, in the case of Kenny’s, aim at a new more compassionate Ireland. However, these apologies are arguably undermined over time by the state’s treatment of survivors discussed in other chapters. In addition, the apologies largely exclude the roles of class, race, and gender as structural forms of injustices and minimise the extent to which historical-structural injustices persist in Irish society.

9.3.6 Christian Churches and Religious Orders

Christian churches have a long and problematic use of apologies for historical abuse. Luigi Accattoli has identified ninety-four instances where Pope John Paul II acknowledged wrongdoing committed by the church or asked forgiveness,Footnote ¹⁰² including apologies for violence during the Crusades and Reformation and for involvement in colonisation and slavery. In 2000, Pope John Paul II apologised for non-recent wrongs committed by the church against Jews, Indigenous peoples, women, and the poor.Footnote ¹⁰³ However, Michael Marrus notes that in most cases Pope John Paul II apologised to God, not to victim-survivors or their descendants.Footnote ¹⁰⁴ Such apologies fail to achieve an essential goal of the concept of apology as a dialogue between two parties or to serve the goal of restoring trust among a broken community or society. Pope Benedict XVI expressed his ‘dismay’, ‘deep sorrow’, and ‘distress’ at institutional and child sex abuse but did not denounce the cover-up of such abuse by the church or articulate concrete steps to hold to account bishops who failed to protect children.Footnote ¹⁰⁵ In 2010, the Permanent Observer Mission of the Holy See (the UN representative from the Roman Catholic Vatican) issued a statement noting that the Doctrine of Discovery had been abrogated or annulled by subsequent church doctrine. However, such a statement did not amount to an apology and seems inherently inadequate in light of the pervasive impact of the doctrine in the nations studied in this book.Footnote ¹⁰⁶

In addition to papal apologies, several religious order and national, diocesan level apologies exist relevant to residential institutions in Canada, Ireland, Northern Ireland, and Scotland, with further apologies for clerical abuse in open settings. However, such apologies typically fall short across the accepted criteria – they rarely accept responsibility, offer repair, or speak to the values of the institution or church involved. Janet Bavales notes that in Canadian church apologies regarding residential schools: ‘Most of the churches’ references to their offenses avoided describing themselves as agents of wrongful actions. In four of the six apologies (Anglican 1993, Catholic 1991, Oblate 1991, and United 1998), not one of the 18 clauses describing an offense was in active voice with the church (or “we”) as agent.’Footnote ¹⁰⁷ Several of the Canadian churches have since repudiated the Doctrine of Discovery and affirmed the need for Indigenous self-determination.Footnote ¹⁰⁸

In the United States, Anthea Butler White notes that while the Southern Baptist Convention’s apology regarding slavery is commendable, ‘it does not consider the theologies that were constructed around slaveholding or the perpetuation of those beliefs in the denomination. It does a great job at apologizing, but it does not address restitution for the structural racism within the denomination.’Footnote ¹⁰⁹ In addition, both individual bishops and the US Conference of Catholic Bishops have apologised for successive state-level child abuse crises, but these apologies are undermined by ongoing resistance to implementing the church’s own child abuse standards and an aggressive litigation strategy against survivors.Footnote ¹¹⁰

In Australia, churches and religious orders made submissions of apology regarding the Stolen Generations to the Bringing Them Home inquiry.Footnote ¹¹¹ Swain notes the changing character of Catholic apologies in Australia over the course of several inquiries:

Both the Anglican and Catholic Churches in Australia apologised for their roles in child sexual abuse in response to Scott Morrison’s 2018 apology.

Early apologies by the Catholic Church leadership in Ireland limited responsibility for harm, with a 2003 statement from Cardinal Seán Brady apologising for the ‘hurt caused’ and ‘damage done’ by abuse and framed responsibility in pastoral, rather than legal terms, and finally emphasised that most child abuse occurs in the context of a family.Footnote ¹¹³ In his apology in response to the Murphy Report, Archbishop Desmond Connell apologises in oblique terms, largely without naming child abuse, and by doing so, ‘attempts to deflect personal responsibility for his own failures (i.e. mishandling of cases)’.Footnote ¹¹⁴ In contrast, Archbishop Diarmuid Martin’s 2009 apology is more explicit in naming sexual abuse, acknowledging the inherent inadequacy of apologies, and admitting efforts to protect the reputation of the church.Footnote ¹¹⁵ McAlinden notes that the context in which some Irish religious apologies occur challenges their sincerity. For instance, while the Christian Brothers issued an apology on the publication of the Ryan report, their conduct during the Commission to Inquire into Child Abuse (CICA) inquiry had delayed the commission and resulted in a right to anonymity for their members. Until publication, the Brothers had denied wrongdoing. McAlinden concludes: ‘Such a contradictory sentiment illustrates a context in which apologies are unlikely to be regarded as sincere.’Footnote ¹¹⁶

While the 2004 apology of the Sisters of Mercy who also operated residential care institutions and industrial schools in Ireland more clearly acknowledges victim-survivor hurt and congregational responsibility, leading to support for the ‘unambiguous’ apology by victim-survivors,Footnote ¹¹⁷ this approach is likely facilitated by the existence of an indemnity for religious orders related to the industrial schools in Ireland. For instance, in 2013 in response to the McAleese report the four religious orders involved in Magdalene Laundries issued statements of apology. However, some of these are ambivalent and struggle to address the criteria of effective apologies laid out above. The Sisters of Mercy note that while conditions in the laundries had been harsh, ‘some very supportive, lifelong friendships emerged and were sustained for several decades’, while the Good Shepherd Sisters stated that laundries were ‘part of the system and the culture of the time’. In 2021, religious orders apologised after the publication of the report into mother and baby homes. Though some of these statements meet many of the criteria of effective apologies, many neglect any offer of amends or redress to survivors, and the statement of the Sisters of Mercy again redirects responsibility to Irish society.

McAlinden’s research with survivors indicated that an apology should address not only the direct experience of physical or sexual abuse endured by survivors but also the longer-term impact on survivors of non-recent abuse, such as ‘inter-generational transmission of shame via the life-long consequences of the denial of opportunities for education’.Footnote ¹¹⁸ McAlinden affirms that the failure of Irish church apologies related to their epistemic and ontological dimensions: these apologies lacked ‘a common understanding of the injustice and … a narrative about the past which has been accepted by victims and perpetrators’.Footnote ¹¹⁹

In the United Kingdom, the General Synod of the Church of England offered a slavery apology in 2006. The apology detailed the knowledge by church bishops of the cruel treatment of slaves, and the church’s financial benefits from the slave trade and accepted direct responsibility. Itay Lotem notes the negative reaction to the apology both from African-heritage groups who criticised it as insincere and from the conservative press who thought it diverted attention from the ‘celebrations of British past benevolence and moral rectitude’.Footnote ¹²⁰ In response to the Northern Irish Institutional Abuse inquiry, a number of religious orders made limited apologies. The apologies of both the De La Salle Brothers and Sisters of Nazareth in 2014 express remorse and regret and acknowledge the suffering of residents in their institutions, if not institutional responsibility.Footnote ¹²¹ Apologies subsequent to the publication of the Hart report in 2017 continue this pattern, with further relevant religious orders apologising and a conditional acceptance that the standard of care offered by the orders may have been inadequate in some cases.Footnote ¹²² In the absence of religiously funded reparations, such statements are likely calibrated with legal liability in mind. There is no reference to the theological or cultural contexts in which these institutions operated or abuse took place.

Across jurisdictions, the limited nature of church apologies has not prevented extensive litigation and financial expense to church institutions, discussed in prior chapters. Limited ability or willingness to accept responsibility for historical abuses as related to the purpose and mission of churches or religious orders are therefore more likely to reflect ongoing denial or lack of theological competence to address institutional wrongdoing and repentance. A key limitation for the Catholic Church offering meaningful and effective apologies is the theological commitment to the church’s own moral and spiritual perfection – those individuals who may commit moral wrongs may constitute the church, but the institution and idea itself remain beyond reproach.Footnote ¹²³ David Novak suggests that changing this posture would be a fundamental shift for the Catholic Church: ‘For if the Church at this level were to apologise, that would presuppose a criterion of truth and right higher than the revelation upon which the Church bases its authority, the revelation that the Church claims as her own.’Footnote ¹²⁴ Danielle Celemajer argues that the Catholic Church could draw on ‘its own historical forms of repentance to address this profoundly damaging aspect of its past’.Footnote ¹²⁵ She notes: ‘Church practices of repentance have been so thoroughly privatised, with the collective and corporate dimensions virtually erased from our understanding of what Catholic repentance could look like.’Footnote ¹²⁶ She concludes that a meaningful church apology would situate the sources of wrongs in ‘the practices, understandings and identities of the clergy and the Church on earth’. In particular, a meaningful apology would acknowledge and condemn ‘the ways in which the Church has failed to take seriously the charges against it, the entrenched and unequal power relations that have been institutionalised through practice and doctrine’,Footnote ¹²⁷ contributing to the wrongdoing of individual priests. Though Christian churches may have the theological resources to address more meaningfully their past, there is little evidence in existing practice that they are committed to doing so.

10.5.1 Canada

In Canada, there have been both political and legal expressions of reconciliation.Footnote ⁵⁹ Antonio Buti notes: ‘The Canadian Supreme Court has essentially sought to resolve the underlying contradiction posed by white settlement of Indigenous lands by imposing a restrictive definition of Indigenous rights that construes them as derived from practices and traditions specific to Indigenous cultures rather than as “general and universal” rights.’Footnote ⁶⁰ This case law and its limits are discussed in Chapter 7.

In addition, reconciliation formed a considerable part of Canada’s transitional justice processes, in particular its TRC. The TRC’s mandate refers to reconciliation as ‘an ongoing individual and collective process’ emerging from ‘the truth of our common experiences’. The TRC involved the provision of individual testimony and public hearings, which are often framed as having a reconciliatory function for individuals. It hosted seven national truth and reconciliation events and seventeen community or regional hearings, where survivors and their families shared their truths in public or through private statements. The TRC also held or participated in regional events, outreach activities, and hearings, visiting over seventy communities. This amounted to over 300 events, drawing upward of 150,000 people.Footnote ⁶¹ Although the TRC intended to give survivors the opportunity for healing through truth telling,Footnote ⁶² some were critical of TRC processes. Glen Coulthard notes that formalised truth-telling processes exclude, evade, or dismiss ‘negative emotions’ like anger and resentment from the possible range of emotions felt and expressed by survivors. Those who ‘refuse to forgive and/or reconcile … are typically cast as being saddled by the damaging psychological residue of [the] legacy [of residential schools], of which anger and resentment are frequently highlighted’.Footnote ⁶³

The TRC report suggests that while some may view reconciliation as the re-establishment of a conciliatory state, the Commission viewed reconciliation as ‘about coming to terms with the events of the past in a manner which overcomes conflict and establishes a peaceful and healthy relationship among people going forward’.Footnote ⁶⁴ The report emphasised reconciliation is not about ‘closing a sad chapter of Canada’s past’ and that reconciliation will never occur unless we are also reconciled with the earth.Footnote ⁶⁵ The report identified ten principles to guide reconciliation in Canada, including that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was the framework for reconciliation; that First Nations peoples have rights in treaties, constitutional, and human rights settings that must be recognised and respected; and that reconciliation ‘requires constructive action on addressing the ongoing legacies of colonialism that have had destructive impacts on Aboriginal peoples’ education, cultures and languages, health, child welfare, administration of justice, and economic opportunities and prosperity’.Footnote ⁶⁶ Their approach also emphasised epistemic justice by arguing that the perspectives of Aboriginal Elders and Traditional Knowledge Keepers on ‘the ethics, concepts, and practices of reconciliation are vital to long-term reconciliation’ and that ‘integrating Indigenous knowledge systems, oral histories, laws, protocols, and connections to the land into the reconciliation process are essential’.Footnote ⁶⁷ This approach contrasts with the Canadian government’s response that largely affirms the status quo, discussed below. The TRC itself highlighted the difference between reconciliation viewed by the state and by Indigenous peoples, as reflecting competing views of sovereignty: the state asserting the supremacy of Crown sovereignty and Indigenous peoples seeking recognition of their own sovereignty.Footnote ⁶⁸

In addition, broader structural reconciliation forms a significant part of the TRC’s final report’s calls to action under two high-level headings: ‘Legacy’ and ‘Reconciliation’. ‘Legacy’ addresses the consequences of colonialism and ’Reconciliation’ offers the principles for a shared future for Indigenous and settler peoples. The forty-two calls to action under ‘Legacy’ are divided into five subheadings: child welfare, education, language and culture, health, and justice.Footnote ⁶⁹ ‘Reconciliation’, by contrast, includes fifty-two calls to action, ranging from the obligations arising under specific legal instruments to considering reconciliation as applied to museums, media, sport, and business, among others.Footnote ⁷⁰ Under recommendation 45, the TRC calls on the government of Canada to ‘[r]enew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future’. The same recommendation continues by asking Canada to ‘[r]epudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius’. The recommendations or calls also include healing relationships through ‘public truth sharing, apology, and commemoration’; ‘addressing the ongoing legacies of colonialism’ and creating ‘a more equitable and inclusive society by closing the gaps in social, health, and economic outcomes’; respecting and learning from the ‘perspectives and understandings of Aboriginal Elders and Traditional Knowledge Keepers’; supporting cultural revitalisation, including ‘integrating Indigenous knowledge systems, oral histories, laws, protocols, and connections to the land into the reconciliation process’; joint leadership, trust building, accountability, and resource investments; and ‘sustained public education and dialogue … about the history and legacy of residential schools, treaties, and Aboriginal rights, as well as the historical and contemporary contributions of Aboriginal peoples to Canadian society’.Footnote ⁷¹

Although highly ambitious, these calls have still been subjected to academic criticism. David MacDonald notes that the TRC’s approach did not define self-determination or examine how it would affect Canadian sovereignty.Footnote ⁷² To date, of the ninety-four calls to action, nineteen remain un-started, thirty remain merely in proposal stages, thirty-two are underway and thirteen are complete.Footnote ⁷³ Those completed include the inquiry into violence against Aboriginal women. Of those calls un-started, as of October 2022, most notably, the government of Canada has also not started a process of publishing its legal opinions regarding Aboriginal or treaty rights.

The selection of calls to action to pursue is inevitably a political choice reflecting cost and political will, among other factors. In 2018 the Canadian government published a ‘Recognition and Implementation of Indigenous Rights Framework’ and a set of ten principles aimed at ‘transformative change’ for a renewed relationship, which continues the supremacy of Canadian law and existing set of Indigenous rights, discussed in Chapter 7. Nagy suggests: ‘The degree to which this agenda will destabilize the constitutional framework explained above remains tenuous at best.’Footnote ⁷⁴

Some Canadian Indigenous scholars have rejected this approach to reconciliation, advocating for more profound land restitution, greater Indigenous nationhood, and the production of alternatives to modern Western capitalist societies.Footnote ⁷⁵ Courtney Jung suggests: ‘Reconciliation may serve as a government project whose primary aim is to bolster state legitimacy. Reconciliation may reflect the desire, for settler-descendants, for expiation or a “move to innocence”’.Footnote ⁷⁶ She concludes that reconciliation is a form of settler futurity: ‘Settler futurity is essentially a settlement of accounts, a moment when settler descendants can finally turn to Indigenous people and say “Okay, now we’re even”’. She continues:‘[t]he “transition” is to an even playing field in which the government, and non-Indigenous Canadians, can no longer be held accountable for past wrongs’.Footnote ⁷⁷

Other scholars reject these criticisms. Paulette Regan argues that the commission’s vision of reconciliation is resurgent: ‘contingent on the land-based resurgence of Indigenous cultures, languages, knowledge systems, oral histories, laws, and governance structures … The commission’s work lays the foundation for a decolonizing paradigm shift in how reconciliation is conceptualized, negotiated, and practiced in formal and informal settings.’Footnote ⁷⁸ James Tully and John Burrows suggest resurgence thinking that promotes radical separation from settlers is not indigenous to Turtle Island (North America) but rather draws from the decolonisation contexts of the 1950s and 1960s. They express concern that applying such a radical critique to settler colonial settings may result in viewing ‘the majority of Indigenous people as being co-opted’.Footnote ⁷⁹ Sheryl Lightfoot equally emphasises that the pessimism traps developed by resurgence theorists ‘are diametrically opposed to the work and vision of Indigenous organizations who have been working on the ground for decades to assert Indigenous nationhood both domestically and internationally, in ways that often assertively and creatively challenge and shift the existing system of sovereign states’.Footnote ⁸⁰ Even on these less radical terms, such accounts of reconciliation in settler colonial contexts reflect a profound redistribution of both material and ideational power, rather than an affirmation of the existing social order by victim-survivors and their descendants.

10.5.2 Australia

As in Canada, reconciliation in Australia has both legal and political expressions. Matilda Keynes notes that since the 1980s Australia has pursued an official reconciliation agenda ‘that has produced limited structural reforms for Aboriginal people, and which continues to neglect First Nations people’s own proposals for reconciliation and reform’.Footnote ⁸¹ Mark McMillan and Sophie Rigney concur that the Australian government’s approach to reconciliation ‘does not adequately acknowledge the harms of the state, and does not allow the capacity for Indigenous peoples to seek justice through reconciliation’.Footnote ⁸²

The Royal Commission into Aboriginal Deaths in Custody began the use of official reconciliation by emphasising the need for reconciliation between Aboriginal and non-Aboriginal communities in Australia.Footnote ⁸³ In 1991, the Council for Aboriginal Reconciliation was established, to ‘promote reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community and by means that include the fostering of an ongoing national commitment to cooperate to address Aboriginal and Torres Strait Islander disadvantage’.Footnote ⁸⁴ The twenty-five person council included representatives of government, business and academia, and high-profile Aboriginal people. Its advisory role included guiding the Minister on processes to further reconciliation, including community education. On Short’s account, the council failed to see Indigenous people as nations, capable of negotiating a treaty with the state, and instead emphasised its role in promoting a single, united Australia.Footnote ⁸⁵ The council emphasised eight issues as essential for reconciliation, with several identifying the need to educate non-Indigenous Australians regarding Australia’s colonial history, the importance of Aboriginal and Torres Strait Islander relationships to land and sea, culture and heritage, and the current disadvantage and high levels of custody experienced by Indigenous peoples.Footnote ⁸⁶

The early efforts of the council contributed to a broader people’s movement for reconciliation across different social groups.Footnote ⁸⁷ The most significant grassroots reconciliation initiative was the National Sorry Day and the Sorry Book Campaign in 1998, in which over one thousand Sorry Books were signed by Australians throughout the country.Footnote ⁸⁸ However, momentum for bottom-up reconciliation has since dissipated and been replaced with a focus on corporate initiatives to improve relationships between Aboriginal peoples and other Australians.Footnote ⁸⁹ Maddison suggests that such strategies as community education and corporate-led reconciliation ‘suggest that Australia has not pursued reconciliation as a path toward decolonising relationships between First Nations and the settler state’.Footnote ⁹⁰ Short concludes: ‘Both the Keating and Howard governments had the opportunity to give legislative effect to common law indigenous rights gains. Yet they bowed to the pressure of commercial interests, producing legislation that severely limited and reduced the gains’.Footnote ⁹¹

These efforts at reconciliation were greatly influenced by legal and political developments regarding Aboriginal rights in the 1990s discussed in Chapter 7. The Mabo judgment, the Native Title Act 1993, and the Bringing Them Home report on the Stolen Generation ‘marked the end of political bipartisanship over reconciliation and Indigenous policy more generally’.Footnote ⁹² As a result of the potentially profound impact of these processes and resistance to implementing the decisions discussed in Chapter 7, from 1998 the Australian government focused on ‘practical reconciliation’, to reduce material disadvantage in the areas of health, housing, education, and employment, but without specified targets, timeframes, or monitoring. This approach framed reconciliation as disconnected from historical abuses and settler colonisation: ‘The level of Indigenous disadvantage was deemed unacceptable, but was explained as a product of recent bad policy rather than a deeper history of colonial invasion and subsequent neglect.’Footnote ⁹³ The practical reconciliation approach ignored Indigenous aspirations regarding land rights, cultural protection, and self-determination. Larissa Behrendt argues the clear agenda (of ‘practical reconciliation’) is one of assimilation and integration, reflecting the same logic as Welfare Boards and Aboriginal Protection Boards.Footnote ⁹⁴

In 1999, Prime Minister Howard made a Motion of Reconciliation to the federal parliament, which recognises ‘the achievements of the Australian nation’ and ‘that the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our national history’. While the motion went on to express regret for past unspecified injustices suffered by Indigenous Australians, it ended by stating, ‘[W]e, having achieved so much as a nation, can now move forward together for the benefit of all Australians’. McMillan and Rigney note that ‘the emphasis of this motion on the nationhood of Australia and “the achievements of the Australian nation” explicitly uses reconciliation as a nation-building exercise for the Australian state, further denying Indigenous sovereignties’.Footnote ⁹⁵ As a result, they conclude: ‘Reconciliation has been conducted on “white” terms.’Footnote ⁹⁶ Similarly, Damien Short suggests the reconciliation process is hence best understood as ‘a stage in the colonial project rather than a genuine attempt at atonement’; especially by neglecting Indigenous claims to sovereignty, nationhood, or land and by focusing on modern-day assimilation and integration, it adopts the same agenda that motivated historical abuses such as child removal.Footnote ⁹⁷ Henry suggests that, ultimately, the reconciliation policy has allowed a denial of the harms perpetrated by the state, and therefore has been used to ‘bolster the legitimacy, authenticity and stability’ of the Australian state.Footnote ⁹⁸ Maddison concludes: ‘reconciliation in Australia became a means of justifying colonial domination rather than transforming the relationship between Indigenous peoples and the settler state’.Footnote ⁹⁹

Short concludes: ‘From the outset reconciliation in Australia placed a “colonial ceiling” on Indigenous aspirations by emphasising nation-building and national unity over sovereignty or the negotiation of a treaty.’Footnote ¹⁰⁰ Indeed, the Australian reconciliation process remained ‘extremely tightly controlled and managed within political boundaries acceptable to the settler colonial state’.Footnote ¹⁰¹

Maddison and Nakata criticise Australian reconciliation for its focus on educating non-Indigenous people, ‘at the expense of addressing historical injustice or the negotiation of contemporary treaties’.Footnote ¹⁰² Maddison suggests that while the formal reconciliation process in Australia introduced a new moral language to address historical-structural injustice, it did not resolve any of the issues raised, such as reparations, a treaty, or the profound inequality between settler and Indigenous peoples.Footnote ¹⁰³ Maddison concludes: ‘what settlers want from reconciliation, and what Indigenous peoples want in a transformed relationship with the settler, are profoundly, perhaps incommensurably different.’Footnote ¹⁰⁴ Instead, she argues, ‘[W]hite Australia cannot solve black problems because white Australia is the problem’.Footnote ¹⁰⁵ Palmer and Pocock suggest that ‘the burden of reconciliation falls differentially on Aboriginal people and white settlers in Australia’.Footnote ¹⁰⁶ They suggest that ‘for settler Australia, a form of reparation – a reciprocal pain – might be found in a deep acknowledgement and acceptance of discomforting post-colonization history, through the affective force of Aboriginal postcontact heritage sites such as massacre sites and former fringe camps; this force could be a source of “reparative discomfort” … non-Indigenous people, by experiencing and holding strong over time this new and potentially painful imaginary, might make some contribution to the process of makarrata or peace-making’.Footnote ¹⁰⁷

10.5.3 United States

Reconciliation does not form part of explicit government policy in the United States regarding either Native Americans or the slavery of African Americans. Modern efforts at reconciliation concerning race relations, slavery, and Jim Crow in the United States must reckon with the failure of one of the last nationwide attempts to address social division – Reconstruction.Footnote ¹⁰⁸ After the Civil War, several constitutional amendments sought to ensure greater racial equality. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment provided for the equal protection of all citizens. The Fifteenth Amendment barred racial discrimination in voting. Adam Serwer suggests, ‘The Reconstruction amendments to the Constitution should have settled once and for all the question of whether America was a white man’s country or a nation for all its citizens’.Footnote ¹⁰⁹ However, as discussed in Chapter 2, by 1876, the withdrawal of federal troops in the South subjected African Americans in the South to a new reproduction of racial discrimination and violence in the Jim Crow era. Serwer concludes: ‘In the aftermath of a terrible war, Americans … purchased an illusion of reconciliation, peace, and civility through a restoration of white rule. They should never again make such a bargain.’Footnote ¹¹⁰

Contemporary processes of racial reconciliation have proved challenging in the absence of national processes of truth telling and reparations. Eric Yamamoto asserts that interracial justice requires both ‘material changes in the structure of the relationship (social, economic, political) to guard against “cheap reconciliation,” [that is] just talk … [and] the kind of recognition and redress of deep grievances that sparks a joint transformation in consciousness, diminishes enmities, and forges new relational bonds’.Footnote ¹¹¹

In 1997, President Clinton created the President’s Initiative on Race by executive order 13050. Clinton appointed a seven-member advisory board with an initial mandate of educating Americans regarding racial issues, promoting racial dialogue, and recommending solutions to racial divides and problems. He also pledged to meet with citizens and listen to their views in several ‘town-hall’ meetings, a format he had used successfully in his presidential campaigns. However, this initiative did not make a significant impact on race relations. Renée Smith suggests several reasons for this failure, including a limited and divided public buy-in on the need for the process, a lack of focus, and inability to engage in open dialogue as the advisory board was obliged to meet in public. Finally, and most critically, the initiative coincided with revelations regarding Clinton’s affair with Monica Lewinsky.Footnote ¹¹² Smith suggests that the presidency is ‘not well suited for eliciting general public debate on complex and sensitive issues such as race relations. Nor is it well suited for coalescing diverse opinions on policy alternatives’.Footnote ¹¹³

The initiative issued a report which recommended strengthening civil rights enforcement, improving data collection on racial and ethnic discrimination, and strengthening the laws and enforcement against hate crimes.Footnote ¹¹⁴ Sherrilyn Ifill suggests:

There are also religious dimensions to existing reconciliation processes in the United States. Anthea Butler notes that ‘the racial reconciliation movements of the 1990s between white evangelicals and African Americans took several forms and met with varying degrees of success. Before the 1990s, attempts at racial reconciliation often took the form of joint church services or days of visitation between churches’.Footnote ¹¹⁶ Andrea Smith states that such efforts ‘tended to focus on multicultural representation in congregations and denominations rather than on structural forms of white supremacy’.Footnote ¹¹⁷ State-level inquiries, such as the Greensboro Truth and Reconciliation Commission, reveal the potential for such inquiries to contribute to reconciliation at ‘cognitive-affective, behavioural, and social’ levels.Footnote ¹¹⁸ Some victim-survivors described the experience of humanising perpetrators through witnessing perpetrator testimony and engagement; however, others were critical of the limits or absence of new disclosures from perpetrators as a basis for reconciliation.Footnote ¹¹⁹ The most dramatic though rare example of reconciliation involved survivors who forgave a perpetrator for killing their family member.Footnote ¹²⁰ The Greensboro commission reflects the potential for further transitional justice processes in the United States that could contribute to racial reconciliation but only in a context of some perpetrator involvement and, even in that rare context, with ambivalent results.

In considering the hesitancy of the United States to begin the process of racial reconciliation, Ifill suggests some whites do not see the contemporary relevance of historical abuses; others worry that addressing the past will challenge ‘white innocence’ and require them to take responsibility for a past they may be ignorant about. Finally, for racial crimes within lived memory, some whites may fear the potential for criminal accountability.Footnote ¹²¹ In the American context, Verdeja suggests that greater use of reconciliation discourse could ‘mean going beyond discussions over the use of indigenous symbols for sports teams or the purported benefits of indigenous-owned casinos that have dominated recent debates’.Footnote ¹²² By requiring some critical self-reflection, a process of reconciliation could also critique the ‘country’s founding principles of self-rule and democracy’ to the extent that they are implicated in the systematic exclusion and destruction of Indigenous and black communities.Footnote ¹²³

10.5.4 Ireland

There is a lack of explicit reconciliation discourse in the context of Irish historical abuse. However, the discourse of reconciliation has played a significant role in Irish foreign policy regarding the Northern Irish peace process.Footnote ¹²⁴ The combination of abuse by state and church authorities means that reconciliation could be differently experienced and conceived of by victim-survivors depending on whether they engage with state or church actors. In the absence of an explicit reconciliation policy towards survivors of various forms of historical abuses, it is possible to construct an epiphenomenal account of reconciliation across the other dimensions of transitional justice pursued by the Irish state, churches, and religious organisations.

While there is a rhetorical commitment to restoring the right relations with victim-survivors evident in the two-state apologies and several apologies from religious orders discussed in Chapter 9, these remain partial and piecemeal and are not predicated on the basis of recognition of citizens’ status or rights or on recognition of the illegitimacy of institutionalisation as a process in twentieth-century Ireland. The lack of memorialisation in the Irish context also demonstrates a limited commitment to recasting the national self-image or national narrative to incorporate recognition of historical abuses. This suggests addressing historical abuses remains short term, exceptional, rather than constitutive of the Irish state and society. This framing of historical abuses’ role in Irish society is also evident in the function of attempts to ‘seal’ access to survivor testimony and the archives of the Ryan Commission and the Residential Institutions Redress Board (RIRB) in late 2019.Footnote ¹²⁵ At a process level, the lack of meaningful attempts to engage in reconciliation is also evident in the ‘gag order’ component of the Irish approach to inquiries and redress, prohibiting victim-survivors from speaking about their experiences with the state’s transitional justice mechanisms as discussed in Chapter 8. These practices reflect attempts to ‘settle’ the past in a manner that causes epistemic and structural harm to survivors.

10.5.5 United Kingdom

As in the case of Ireland, reconciliation with victim-survivors of historical-structural abuse does not form part of the approach taken in the United Kingdom. Apologies to victim-survivors are considered separately in Chapter 9. Again, reconciliation has formed part of British foreign policy regarding Northern IrelandFootnote ¹²⁶ but has been kept separate from its response to institutional abuses. Reconciliation with victim-survivors of historical abuse in the United Kingdom will point to the broader processes of reconciliation in a state divided by lines of class, region, ethnicity, and religion. More broadly, there is a lack of the language of reconciliation in British engagement with former colonial states and societies. Instead, British engagement in post-colonial contexts can often be framed in terms of international trade or economic and human development, rather than in terms of reparations or responsibility for the past.Footnote ¹²⁷ In the absence of other elements of addressing an abusive past, it seems grossly premature to consider reconciliation discourses and practices for a broader British involvement in historical-structural injustices.

10.5.6 Reconciliation and the Catholic Church

As a concept with a significant basis in religion and theology, reconciliation is significant in the thought if not practice of churches in addressing historical-structural injustices. In ‘Memory and Reconciliation: The Church and the Faults of the Past’, the Holy See distinguishes between the infallible character of the church and the potential for sin in its members.Footnote ¹²⁸ Contrary to the theological history of sin and repentance in Christian churches outlined by Celemajer, the document asserts: ‘Sin is therefore always personal, even though it wounds the entire Church.’ Situations of ‘social sin’, which could be read as structural injustices, are always ‘the result of the accumulation and concentration of many personal sins … the imputability of a fault cannot properly be extended beyond the group of persons who had consented to it voluntarily, by means of acts or omissions, or through negligence’.Footnote ¹²⁹ However, the document notes that the Biblical tradition of social repentance involved a systemic admission of fault. The document calls for a particular historical interpretation, noting that in judging historical abuses it must be remembered that historical periods are different, that the sociological and cultural times within which the church acts are different, and so, the standards by which the church are judged should be different, recognising diversity in historical and geographical situations.

Without naming specific time periods or geographical locations, the document acknowledges the role of the church in ‘forms of evangelization that employed improper means to announce the revealed truth or did not include an evangelical discernment suited to the cultural values of peoples or did not respect the consciences of the persons to whom the faith was presented, as well as all forms of force used in the repression and correction of errors’. It then acknowledges that ‘attention should be paid to all the failures, for which the sons and daughters of the Church may have been responsible, to denounce injustice and violence in the great variety of historical situations’, including express reference to situations of human rights violations and to the historical treatment of Jews by Christians. In addition, the document offers some limited potential acknowledgement of the need to end patterns of religious alienation: ‘it is important to avoid perpetuating negative images of the other, as well as causing unwarranted self-recrimination, by emphasising that, for believers, taking responsibility for past wrongs is a kind of sharing in the mystery of Christ, crucified and risen, who took upon himself the sins of all’. The document notes that acts of addressing historical abuses ‘can increase the credibility of the Christian message, since they stem from obedience to the truth and tend to produce fruits of reconciliation’. However, the practice of the church evidenced in other chapters tends to be lawyer-led, with an engagement with survivors that reflects the church’s rights as a legal actor to safeguard its own assets, information and members. An exception to a legalistic approach is the church’s use of restorative justice programmes. Gleeson and Zanghellini note that in the context of historical abuses, restorative justice programmes have been used for survivors and offenders in the United States, New Zealand, Australia, the Netherlands, and elsewhere,Footnote ¹³⁰ despite the lack of evidence of the suitability of such approaches to address historical and sexual abuse. They note that due to the absence of sufficient publicly available data on the nature and processes of these initiatives, ‘[i]t is not apparent to what extent various church-led processes abide by restorative justice standards or provide a sense of justice for survivors and offenders’.Footnote ¹³¹ They conclude: ‘The Catholic doctrine of grace entails that in the context of Catholic restorative justice the goal of restoring justice to victims who have not lapsed into unbelief would take second place to the goal of restoring justification to the offender.’Footnote ¹³²

While reconciliation may form a central part of Catholic theology, a practice that does not include corporate and institutional responsibility for past wrongdoing, particularly the cover-up or facilitation of such wrongdoing, as identified in Chapter 6, seems ill-suited to provide an effective form of engagement with victim-survivors and instead serves as another inappropriate form of settlement.