Wyndham Bettencourt-McCarthy

The events of the past month have clearly demonstrated that the Harper administration has a lot of explaining to do regarding the state of aboriginal affairs. Yet in addition to issues surrounding Bill C-45, the environment, and treaty rights, the federal government has also thwarted requests from the Truth and Reconciliation Commission of Canada (TRC) for all of the documents pertaining to the Indian Residential Schools. After 23 government departments refused to hand over documents, the TRC was forced to take Ottawa to court. On December 20 and 21 of 2012, the TRC presented a court reference to the Ontario Superior Court of Justice, requesting that the federal government be made to provide all of the remaining documents.

The federal government has already given the TRC almost a million documents, but bureaucrats have estimated that there are as many as 4 million still outstanding. The TRC has specifically noted the absence of photographs and RCMP, court, and school records, some of which detail the resistance of parents against the removal of children to the schools. “The TRC knows these materials exist because they are referenced in various books and academic theses,” reads an official TRC media release. “We also know we haven’t received them; when we search among the documents that the Government of Canada has turned over to us, we find no reference at all to many officials, historical incidents, pieces of correspondence, etc., that are referenced in these secondary sources.”

The TRC was officially established in 2008 as part of the Indian Residential Schools Settlement Agreement. The Commission was created specifically to educate Canadians on the history of residential schools through research, interviews, and statements collected from survivors. “Part of the TRC’s mandate, as based on the Settlement Agreement with the Crown, is to produce a comprehensive history of residential schools, including a documentary history to be housed for scholarship,” says U of T Law Professor Douglas Sanderson, who focuses on Aboriginal law. “By failing to produce those documents, the Crown is in breach of the Settlement Agreement. There’s a legal requirement for the TRC to have all of the documents so they can be archived for current and future scholarly study.”

The debate over the documents is less about the information they contain and more about the cost of obtaining them. Locating and digitizing the files is estimated to total $100 million. While some bureaucratic officials have suggested that the TRC could spend the time and money locating the records themselves, Sanderson points out the inherent flaw in this logic. “The TRC is funded by the federal government, and it’s only more expensive to transfer the money to the TRC, because then there’s administrative costs,” he says. “The federal government controls the agencies that have the documents, and they are required to pay the costs. That it’s so expensive is unfortunate, but that’s what it’s going to take.”

The court hearings concluded on December 21, leaving the matter in the hands of Ontario Justice Stephen Goudge, who will now decide whether or not the government is obligated to hand over all of the remaining documents. The decision could take anywhere from a week to several months, and there remains the possibility of an appeal process.

While the cost of gathering and categorizing the documents may appear high, it’s a small price to pay in exchange for a comprehensive history of one of the greatest abuses of civil liberties in our country. Professor Sanderson says he is sensitive to the government’s desire to mitigate expenses, but he argues that this an area where the cost is thoroughly justified. “I used to work in a Minister’s office [as a senior policy advisor to the Minister Responsible for Aboriginal Affairs and the Attorney General of Ontario], so I know that $100 million isn’t a small amount, and I can imagine how some civil servants might advocate that spending the time to organize and produce documents is a burden they can’t add to the existing workload. But this isn’t a fishing expedition; it’s the minimum required for the TRC to achieve the mandate set out in the Settlement Agreement,” he says.

Unfortunately, this isn’t the first time the Harper administration has prioritized money over information; Harper’s decision to replace the long-form census with an optional survey in 2011 demonstrated that Ottawa sees little value in documenting actual data. Yet if the TRC isn’t able to establish a complete history of residential schools, it will render the government’s attempts “reconciliation” over the past decade–including Harper’s 2008 public apology—completely false.

Residential schools are an important, if shameful, part of Canada’s past, and it is essential that the TRC be given access to all of the relevant documents and records concerning the schools. If Ottawa continues to refuse the TRC’s requests, it will not only be in violation of the Settlement Agreement, but also in opposition to the notion that evidence and information are crucial to knowledge and healing. As Professor Sanderson notes, “We are missing the opportunity to get a complete history, the documentary truth of what really happened. It’s unlikely we’ll see an effort as comprehensive [as the TRC] in the future. So we’ll miss the opportunity to know both where we were [with residential schools], but also where we are now, as a country.”

Wyndham Bettencourt-McCarthy is a 2014 Master of Public Policy Candidate at the School of Public Policy and Governance at the University of Toronto. She also holds a BA (Honours) in English from the University of Toronto, and has written for a number of Toronto publications, including The Grid, Eye Weekly,Toronto AV Club, University of Toronto Alumni Magazine, and others.