Payment of reparations to historically mistreated racial minorities, especially people of African origin, is a lively topic of discussion in the United States and other countries where slavery was institutionalized. In Canada, reparations have been paid to First Nations for almost two decades under the somewhat misleading heading of Reconciliation. The expansion of reparations has been driven by developments in the judicial process, especially the use of class-action lawsuits and the instructions for Justice Canada to negotiate rather than litigate. And, aside from the large sums paid out in compensation, there are two serious political consequences: elected representatives have no meaningful oversight of the negotiations and, contrary to Canadian legal tradition, individual claims of mistreatment are not merely leading to compensation but are being used to overturn core government policies enacted by previous Parliaments.
Reparations began with the Indian Residential Schools Settlement Agreement, finalized in 2007, which awarded almost $5 billion (2007 dollars) in individual payments to those who had attended the schools. Class actions regarding other forms of education were launched, but the federal Justice Department resisted these claims until 2015, when Justin Trudeau’s government came to power. The new Minister of Justice, Jodi Wilson-Raybould, instructed departmental lawyers to seek negotiated settlements instead of litigating vigorously. These instructions were formalized in her “Litigation Guidelines,” which were issued in 2019 and are still in effect.