Bringing-Them-Home-Report-Web

the United Nations Special Rapporteur van Boven and the Canadian RoyalCommission on Aboriginal Peoples in its report on the High Arctic Relocation.The Inquiry’s approach is based on a human rights framework. It recognises that inmost cases the right to claim reparation in the form of monetary compensation will belimited to individuals and families. Communities should receive reparation for theharm they have suffered in the form of restitution, rehabilitation, satisfaction andguarantees against repetition. The class of persons eligible for compensationtherefore can be specified with reasonable certainty.The Commonwealth Government also submitted that gaps and deficiencies inrecords would render the identification of persons within the class problematic. In theInquiry’s view, it would be unjust to exclude from compensation any individual whohas been a victim of forcible removal merely because of the unsatisfactory state ofhis or her records which have been at all times the preserve of government anddelegated carers. It would also be unjust to refuse compensation to those whoserecords have survived and who can establish a claim. Despite gaps and deficiencies,extensive records relating to forcible removals have survived. Where an individualcan establish that he or she suffered harm as a result of forcible removal,governments have an obligation to provide compensation.The second Commonwealth difficulty concerned estimating the monetary value ofloss. The Commonwealth submitted that ‘[t]here is no comparable area of awards ofcompensation and no basis for arguing a quantum of damages from first principles’.Most elements of the harm experienced by the victims of forcible removal arerecognised heads of compensation in Australian civil damages law. The sameprinciples should apply to quantification as would apply in the civil courts. It is difficultto quantify damages for loss of a limb in a motor vehicle accident or for thepsychological injury incurred. Yet the difficulty does not prevent civil courts assessingtortious damages in these kinds of cases every day.Even where Australian law does not presently recognise a right to reparations, as forgross violations of human rights, there are numerous precedents which should guideAustralian developments. For example, under the Alien Torts Claims Act UnitedStates courts frequently award damages to victims of gross violations of humanrights, as well as to their estates and to close family members.The Inter-American Court of Human Rights on numerous occasions has quantifiedcompensatory damages to be awarded to the families of victims of gross violations ofhuman rights.In a situation with parallels to that dealt with by this Inquiry, Swiss Romany victims offorcible child removal have been awarded a lump sum amount by way ofcompensation. From 1926 until 1972 the organisation ‘Children of the Road’, withSwiss Government approval, aimed to protect the children of travelling people,particularly the Roma people (sometimes disparagingly called ‘Gypsies’). This‘protection’ involved the enforced settlement of many children and the separation of619 from their families. Upon the dissolution of Children of the Road, its parentorganisation officially apologised to the Romany community and ‘has set aboutcompensating the victims, a total amount of SF 11 million having been dividedamong almost 1,900 victims’ (Switzerland’s periodic report to the Human RightsCommittee under the International Covenant on Civil and Political Rights, UN Document