Editor’s Note: We received this just before we went to press: The Ontario Superior Court of Ontario has ruled that the federal government must disclose all documents to the TRC regarding Indian Residential School. While the government has already turned over about a million documents, the TRC wants access to millions more.
The Truth and Reconciliation Commission is waiting on a decision from the Ontario Superior Court that could compel the federal government to provide documents as outlined by the Indian Residential School Settlement Agreement (IRSSA).
Kimberly Murray, executive director with the TRC, said she is hoping for a timely decision from Justice Stephen Goudge.
“Just knowing the way he works, he likes to get his decisions out quickly, but I’m also wondering about the climate right now,” she said. “If it’s not going to be a decision supportive of the TRC, maybe he’s not going to release it at a time like this. (Judges are) aware of a climate and what their ruling might do if it gets released at the wrong time.”
Murray was alluding to the fall out that could occur to add fuel to the Idle No More movement, blockades and demonstrations that are sweeping the country.
On Dec. 20 and Dec. 21, counsel for the TRC, supported by the Assembly of First Nations, Inuit representatives, counsel for the plaintiffs and independent counsel, argued that the federal government needed to provide documentation from the national Library and Archives as well as documentation that referred to the “legacy” of residential schools.
Murray noted that while church representatives were present in court, the churches were silent, not filing papers in support of the federal government. She also said some people wore shirts declaring, “I’m with the United Church. Give the records to the TRC.”
Taking legal action against the federal government is the latest step in what TRC Chair Murray Sinclair characterizes as a “difficult relationship that is evolving with the federal government.”
Limited results from ongoing dialogue with the federal government to produce documentation beyond the one million pieces compiled for the class action law suit which led to the settlement agreement, repeatedly missed deadlines for the handing over of documents from the archives, and continuously cancelled meetings with Library and Archives Canada prompted the court action.
“Then it crystallized to us where they came out and told us, ‘We don’t think it’s our responsibility to give you Library and Archives Canada records,’” said Murray. “That was like a shocker to us.”
Not only have the records not been retrieved from the archives, they have not even been organized, she said.
At the heart of the matter is Schedule N of the IRSSA, which states, in part, “In order to ensure the efficacy of the truth and reconciliation process, Canada and the churches will provide all relevant documents in their possession or control to and for the use of the Truth and Reconciliation Commission.”
Canada is claiming that the term “relevant” is being used too broadly by the TRC and that the TRC needs to undertake the work itself.
It would be impossible for the TRC to hire staff to collect those documents, given the commission’s limited budget, said Murray, nor was that the intention of the agreement.
During the court process, Canada said it had close to another five million pieces of documentation that pertained to the Indian residential schools.
Presently, TRC has records that come mainly from Aboriginal Affairs and Northern Development Canada. However, the archives include documentation from at least 24 other departments that connect to the Indian residential schools, as well as RCMP records.
Murray said the government is also refusing to provide documentation on what is being referred to as the legacy of residential schools.
“Their position all of a sudden was when a school closed, you aren’t entitled to any records after that,” she said.
That means documentation such as cemetery exhumations or plough-overs, policy decisions around programming, is not being made available.
“This is pretty significant,” said Murray. “(Canada) basically just wants the commission to write about, to just focus our research and final report on the day-to-day operation of the school.”
If the TRC is successful in getting the government records, Murray said there will not be enough time to sufficiently analyze the information for it to be included in the TRC’s final report. The TRC’s mandate expires in 2014.
“But more important to us is the records getting out of the hands of the defendant and being put into the National Research Centre,” said Murray.
The TRC is in the process of negotiating with a successful bidder, an existing institution which has formed a consortium with other institutions, to establish the centre.
“If we still don’t have all the records by the time we close our doors, well, you won’t be surprised if we are in front of another judge saying that we want an order that those records continue to be produced for the National Research Centre,” said Murray.
“At the end of the day the idea behind the National Research Centre was that these records, the history of Indian residential schools, needs to be taken out of the hands of Canada and the churches so that it’s accessible.”
Ry Moran, director of statement gathering and the National Research Centre, said his best estimate has the TRC in receipt of about one-third of the documents in the churches’ archives.
“One thing that is relatively consistent across the country is that there are still not firm estimates of the number of documents out there,” he said.
The TRC has all the documents from the Presbyterian Church, which had records for one residential school, and the United Church is well on its way to providing all its documentation by next year’s deadline.
However, Moran is not as confident when it comes to collecting on time from the Anglican Church or the Catholic Entities. He adds that if the two bodies had begun to organize and compile the documentation when the IRSSA first came into place, they would not be in the situation they are in now. His concerns have been taken to the all-parties group “at the most senior level.”
Moran would not go as far as to say the TRC would engage in similar court action against the churches as is now being undertaken against the federal government.
“We are conveying the seriousness of the situation we’re in to the churches right now,” he said, “and they are aware we are in court.”