Dealing with the Legacy of Native Residential School Abuse in Canada

Litigation, ADR, and Restorative Justice

Bibliographic Data

ID7540653
AuthorsJennifer Llewellyn (0000-0002-5279-9833, corresponding author), Jennifer J Llewellyn
Year2002
Volume52
Issue3
Pages253-300
Publication date2002-07-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueUniversity of Toronto Law Journal (JOURNAL)
Journal identifiersISSN: 0042-0220 • E-ISSN: 1710-1174
PublisherUniversity of Toronto Press (PUBLISHER • CA)
DOI10.3138/utlj.52.3.253
OpenAlexW2030102691
LanguageEN
Citations received22

The recent flood of civil litigation suits filed against the federal government and four major Christian churches by former students of Canadian Native residential schools threatens to overwhelm the court system and bankrupt several of the Church organizations involved. Litigation has proved problematic as a mechanism through which to respond to the abuse and other harms experienced in, and by, the residential school system for all the parties involved. Dissatisfaction with the court process has led those involved to look to the mechanisms collected under the umbrella term ‘alternative dispute resolution’ (ADR) in order to find an alternative to litigation. This article suggests that an appropriate resolution to residential school claims cannot be found via the ADR mechanisms currently being suggested or utilized. These ADR mechanisms do not challenge those assumptions underlying the current tort litigation system that are most problematic as applied to the residential school situation. Specifically, they do not challenge the theory of justice animating the current tort law system. As a result, they cannot provide a meaningful alternative to litigation for the parties involved in the residential school cases. Instead, a genuine alternative to the current justice system requires a new lens through which to understand the nature of the conflicts and harms resulting from residential schools. Restorative justice offers just such a lens. In my previous work, I have developed a conceptual framework that views restorative justice as not simply alternative practice but, rather, a comprehensive theory of justice. I will draw upon this work to argue, in this article, that restorative justice provides a new lens through which to envision meaningful alternatives for dealing with the residential school situation in Canada. Grounding alternative dispute resolution mechanisms in this theory of justice would significantly alter their design, process, and purpose

Alternative dispute resolution · Dispute resolution · Economic Justice · Government (linguistics · Political science · Restorative justice · Sociology · Tort · Work (physics · Criminal Justice and Corrections Analysis · Engineering · Law · Legal Systems and Judicial Processes · Multicultural Socio-Legal Studies

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