Many former students identify the most painful legacy of Canada’s Indian Residential Schools as the loss of First Nations culture and language resulting from cultural denigration, religious indoctrination, and the removal of children from their families. The federal government insists that no cause of action exists for loss of culture or language arising from the operation of the residential schools. Nevertheless, claims for loss of culture are proceeding through the courts. While there has been little substantive judicial consideration of the merits of cultural loss claims, cultural loss has been considered in the damages assessment stage of civil actions for sexual abuse. Futhermore, some cultural loss claims have run into procedural obstacles such as limitation periods and Crown immunities. This article examines the progress of cultural loss claims to date and explores tort law’s potential to address this issue. The tort of intentional infliction of mental suffering is analyzed as one potential basis of compensation.
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Source:Â Zoe Oxaal. “Removing That Which Was Indian From the Plaintiff”: Tort Recovery For Loss Of Culture, and Language in Residential Schools Litigation. Saskatchewan Law Review, Rev. 367,( 2005).
