The Stolen Generations - Canada and Australia: the Legacy of Assimilation

Abstract

This article provides a comparative overview of issues pertaining to the stolen generation in Canada and Australia. It includes a historical overview of the removal and detaining of aboriginal children in Canada and Australia. As a consequence of the revelations of this past practice, litigation has been undertaken by members of the stolen generations in both Canada and Australia. The article includes a summary of the key cases in Canada and Australia. Unlike in Australia, some Canadian aboriginal claimants have successfully brought actions for compensation against the federal Canadian government for the damages stemming from their experiences in the aboriginal residential schools. In the course of this discussion, the various causes of actions relied upon by the plaintiffs are examined. While the plaintiffs in these leading  Canadian cases were ultimately successful under at least one of their heads of claim, the approaches in these cases in regard to the Crown’s liability for breaching fiduciary duties, the duty of care, and non-delegable duties is inconsistent. Thus even in regard to the Canadian jurisprudence key legal issues pertaining to the Crown’s liability for the aboriginal residential school experience continues to be unresolved.