Law Times

Page 12 April 29, 2013 Law Times • FOCUS Government ordered to turn over residential schools documents BY SIOBHAN McCLELLAND system, the extent of that obligation isn't entirely clear. Although Goudge indicated the government's obligation included turning over relevant documents reasonably required to assist the commission in its mandate, he also said it "would be both impossible and unwise to try to determine the full extent of this obligation in advance of a further particular dispute about its scope." Hugo Prud'homme, counsel for the Inuit Representatives as intervener in the case, says the decision probably means that not all relevant documents will be gathered at the end of the day just because of the nature of the task but suggests most of them should be. However, he thinks the decision clarifies the government's obligation to turn over records even though it left open some questions as to what's a relevant document. "There are some questions that I think Justice Goudge could not probably resolve in the abstract. What we have to remember is when we got in this process, the position of Canada was that they did not have to go do any more research at Library and Archives Canada and that was the role of the TRC." This is just the latest chapter in a long history involving the residential school system. As set out in Goudge's decision, the residential school system resulted in the removal of aboriginal children from their communities and disrupted their families. The idea behind the system was to assimilate children into non-aboriginal society. Goudge wrote: "By the time the last For Law Times I CUTTING EDGE • TIMELY • INTERACTIVE n a recent decision, the Superior Court ordered the government to turn over all relevant documents on the residential school system. In Fontaine v. Canada (Attorney General), the issue before the court was whether the government had an obligation to provide documents from Library and Archives Canada to the Truth and Reconciliation Commission. The government argued the commission had no legal standing in the matter and it had an obligation to search for materials itself rather than asking the government. Justice Stephen Goudge, sitting on the Superior Court case on an ad hoc basis, disagreed. He found the commission had standing and the government's obligation to provide documents to it extends to searching and providing records from Library and Archives Canada. "I think for those of us who have been involved working with residential school former students and their families, it was a welcome decision," says Alvin Fiddler, deputy grand chief of the Nishnawbe Aski Nation. He believes the files will help the commission fulfil its mandate to gather stories from some of the survivors and complete the history of the residential school experience. But while the court ordered the government to search for and provide documentation related to the residential school residential school closed in 1996, more than 150,000 aboriginal, Inuit, and Métis children had been taken from their homes and communities and required to attend these institutions." On May 8, 2006, the government entered into the Indian residential schools settlement agreement that settled individual and class action lawsuits brought by former students. As part of that settlement agreement, the government agreed to pay $60 million for the establishment of the commission. Some of the goals of the commission included acknowledging the residential school experience as well as its impacts and consequences; providing a safe setting for former students, their families, and their communities to come forward; and promoting awareness and public education about the residential school system. As well, the commission was to "create as complete an historical record as possible of the [residential school] system and legacy." As of Nov. 26, 2012, 982,000 documents had been disclosed to the commission, 550,000 of which came from Library and Archives Canada. In his decision, Goudge found that "while Canada is not obliged to turn over its originals, it is required to compile all relevant documents in an organized manner for review by the TRC. It is in that context that Canada is obliged to provide access for the TRC to [Library and Archives Canada] to review these documents and to carry out its mandate." In an e-mail, Geneviève Guibert, spokeswoman for Aboriginal Affairs and Northern Development Canada, noted the government "will continue to fulfil our obligations under the Indian residential schools settlement agreement to address the legacy of the Indian residential schools. To that end, the government has already disclosed over 3.5 million documents to the commission. Canada is continuing to work with the TRC to organize and compile documents." Prud'homme notes one of the goals in gathering as many relevant documents as possible is to ensure the commission can transfer them to a national research centre where the history of residential schools, former students, and their families will be under one roof and accessible to families, researchers, and anyone with any interest. "For years, when former students and organizations representing former students were trying to assist them, they hit a wall. Where is the information? What happened? Why were we removed from our families for so long? There were many unanswered questions and it was difficult to find answers." Prud'homme also notes the importance, from the point of view of former students, of ensuring the system won't resurface. "It is, after all, a page of Canadian history that is rather dark and it's good to bring it to light and make sure it stays there." LT GREENHOUSE GAS REGULATION CARBON FINANCE AND CCS Canada has withdrawn from the Kyoto Protocol but remains committed to its Copenhagen Accord pledge and to agreeing to a new all-in legal regime that will replace the Kyoto Protocol by 2015. The federal government is taking a sector by sector approach. The Kyoto Protocol has been extended but with fewer participants and the Clean Development Mechanism and associated carbon finance opportunities continue. Quebec is now an active member along with California in the Western Climate Initiative. Alberta's emissions regime is maturing through continued operation and Saskatchewan is expected to proclaim its law and regulations this year. Carbon capture and sequestration features prominently in both Alberta and Saskatchewan and is now a commercial scale reality with these projects providing internationally recognized leadership. The voluntary market continues to expand and projects are increasing in number in Canada. 2013 promises to be a year of continuing uncertainty in Canada and internationally, affecting the sorts of climate-change-related business opportunities available and the geographic location where opportunities arise. The more nimble and aware businesses will continue to make money and provide opportunities to both business and environment lawyers. COURSE HIGHLIGHTS SPEAKERS CHAIR AND COURSE LEADER • 2013 State of Play (International, Regional, Canada, Saskatchewan and Alberta) • The ongoing evolution of carbon markets • Carbon Capture and Sequestration – a Reality Check • Lawyers and large projects • CCS and the Buying and Selling CO2 • Roundtable Q&A Douglas Tingey. Macpherson Leslie & Tyerman LLP GUEST SPEAKERS Andrée Blais. Macpherson Leslie & Tyerman LLP John Dipple. Macpherson Leslie & Tyerman LLP Aaron Runge. Macpherson Leslie & Tyerman LLP Rangi Jeerakathil. Macpherson Leslie & Tyerman LLP Dr. Mary Griffiths. Pembina Institute REGISTER BEFORE MAY 10 AND SAVE $300! Calgary, June 11, 2013 • Regina, June 13, 2013 For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca Webcast also available! Untitled-1 1 www.lawtimesnews.com 13-04-22 10:25 AM

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