Court, AG set Gov’t straight on obligation to TRC

A recent report by Canada’s auditor general comes on the heels of an Ontario Superior Court decision, providing confirmation of what the Truth and Reconciliation Commission already knew. The federal government needs to produce the records that the TRC considers relevant on Indian residential schools.

“I don’t think any government department likes to be criticized twice for the same thing, so we’re hoping that the government will be moving,” said TRC Chair Justice Murray Sinclair.

In January, Ontario Superior Court Justice Stephen Goudge made a ruling on a reference question brought forward by the TRC. The government claimed that “relevant documentation” was limited to policies, operations and funding for residential schools that were named in the Indian Residential School Settlement Agreement signed in 2007. Goudge, however, said that government’s view of its obligation was too narrow, and that all documentation must be made available.

“The auditor general is committed to following up (the court decision), so there will be a follow-up process that we know will be important,” said Sinclair.

Last month, Auditor General Michael Ferguson released his spring report which included a 36-page chapter entitled “Creating a Historical Record of Indian Residential Schools.” Within those pages, Ferguson said issues arose between the federal government and the TRC around the lack of definition on such key terms as which documents were considered “relevant” and what an “organized manner” of receiving the documents would be.

Ferguson also noted that no schedule was established as to when the documents would be in the hands of the commission; budgets were not established that accurately reflected the cost of collecting and digitizing the documents; there was no agreement on who would be responsible for covering the costs of scanning.
This lack of agreement, said Ferguson, led to the difficulties, which he also referred to as the Commission’s and government’s inability to “find common ground upon which to cooperate… in a spirit of reconciliation.”

“What the auditor general said was that we couldn’t agree with Canada about what we needed and that’s true. And we acknowledge that. And we wrote to the auditor general and said that was correct, that Canada would not agree with our version of what the documents were that had to be produced to us. But as the judgement came out (from the Ontario Superior Court) we saw that we were right. So there’s no question that the delay was attributable to the fact that Canada wouldn’t agree with us,” said Sinclair.

In a statement, federal Aboriginal Affairs Minister Bernard Valcourt said, “We agree with the Auditor General that Canada and the TRC can work more closely together to ensure the objectives of the Indian Residential Schools Settlement Agreement are met, and we are working jointly with the Commission to develop a project plan to fulfill document disclosure requirements.”

Sinclair also noted that the court decision will aid the TRC in acquiring documents in a timely manner from the Catholic Entities, which were one of the four churches to sign the settlement agreement. The majority of documentation has been acquired from the other church signatories, the United, Anglican and Presbyterian churches.

Ferguson wrote, “It is still essential to clearly define the scope of the work to be completed. The Truth and Reconciliation Commission and … Aboriginal Affairs and Northern Development Canada, need to define the relevant documents that are reasonably required by the Commission to create a historical record as complete as possible. They need to factor in the time left in the commission’s mandate and the resources available.”

Whether the July 2014 deadline to have the documents received and processed can be achieved is still unclear.

It will depend on how soon the federal government can get documentation to the TRC and in what format.

“Whether (the federal government) drives up to our office one day with a big truckload of documents and dumps them on the street or whether we are going to actually have a database delivered to us, on DVD or electronically somehow, that will make a whole world of difference on our end,” said Sinclair.

Once the documentation is received, TRC staff still needs to determine what is relevant to be housed in the National Research Centre.

“It does have implications for our ability to meet our mandate deadline… if they delay, the whole question as to whether we have to determine whether an extension will be needed or additional resources will be needed is still up in the air,” said Sinclair.