The federal government's foot-dragging tactics in court cases involving aboriginal peoples are coming under the microscope in a class-action lawsuit brought by indigenous former students of residential schools in Newfoundland and Labrador.
Lawyer Kirk Baert of Toronto, part of a team that launched the lawsuit in 2007, accuses Ottawa of trying to "outlast" elderly former students and says he has hundreds of examples of its "complete lack of co-operation," in ways big and small, that have doubled the length of proceedings, now at eight years.
Justice Minister Jody Wilson-Raybould promised in her election campaign to work toward reconciliation between the Canadian government and aboriginal peoples. Federal delaying tactics in land claims cases have been a major complaint of aboriginal groups for decades. One of the first questions before the new Justice Minister is whether to continue contesting the claims by 1,000 to 2,000 former students that the federal government had a duty to protect them from abuse at orphanages and schools between 1949 and the 1970s. Ms. Wilson-Raybould is the country's first aboriginal federal justice minister.
In a document tracking delays, shared with The Globe, Mr. Baert alleges:
- The government refused to permit documents to be used as evidence unless a witness could testify to explain them. The documents include federal orders-in-council, letters from prime ministers and internal memos. A long court battle over the issue wasted hundreds of hours of lawyers’ time, Mr. Baert says, before his side won the point. “Most of the authors are dead and, if still alive, are old and likely would not recall more than what is stated in the documents.”
- The government has tried from the beginning, over the objections of the former students, to involve the province as a target of the lawsuit. A judge said as far back as 2008, when the lawsuit had not yet been certified, that attempting to bring in the province at that stage would cause the case to “spiral down a timeless rabbit hole wherein one particular application begets another.”
"There just hasn't been a single concession whatsoever about any aspect: that they owe a duty, that they breached it, that any of the abuse occurred, that people were harmed," Mr. Baert said in an interview. "This case is being litigated like a lawsuit between Canada and a bank, which means no-holds-barred, whoever's got the most resources, just drag it out." He added that, as far as he knows, no province has ever paid compensation over the residential schools.
The Justice Department passed The Globe's request for comment on to the newly named Indigenous and Northern Affairs department, saying that it oversees all cases related to the residential schools. Even so, the question of what to do about the lawsuit still falls to Ms. Wilson-Raybould, who has promised to spearhead reconciliation efforts and who advises all departments on legal matters, and whose departmental lawyers based in Halifax handle the case day-to-day.
Former students from Newfoundland and Labrador were excluded from the 2007 residential schools settlement with the federal government that led to an apology from prime minister Stephen Harper, the payment of billions of dollars in compensation and the creation of a Truth and Reconciliation Commission. A previous Liberal government led by Paul Martin also excluded Newfoundland and Labrador from settlement negotiations. Ottawa argues that it had no direct role in operating or overseeing the schools. Mr. Baert says the federal government had a duty to protect indigenous students, whether it had a direct role in the abuse or not. He estimates the cost of a settlement at $100-million.
At The Globe's request, Trevor Farrow, an associate dean at Osgoode Hall Law School in Toronto, reviewed Mr. Baert's document that alleges undue and willful delay by the government. "The real issue is trying not to win the battle while losing the war," he said. Even if the government wins the case, "at the end of the day, is that a loss for Canadians generally if our real goal is to restore some sense of justice in a bigger picture?"