An Ontario court is being asked to determine how much Canada owes to tens of thousands of former inmates of church-run residential schools that were part of a campaign to "take the Indian out of the child."
Aboriginal groups and the commission created to reveal the truth about what happened behind the walls of the schools that operated for 130 years say the full story cannot be told without ready access to millions of documents that are now buried in government archives.
But the government, faced with what all parties agree is a gargantuan and expensive task, says gathering all of the material demanded would be a redundant exercise and that anyone interested in the documents, including the commission, can go into the archives and get them.
After two days of occasionally acrimonious testimony before the Ontario Superior Court, Mr. Justice Stephen Goudge is tasked with determining the extent of Ottawa's obligations under the settlement agreement signed between the school survivors, the government, the churches and others.
The Truth and Reconciliation Commission (TRC), which was created by that deal, argues that the government is not living up to its part of the bargain by failing to retrieve and organize as many as four million documents that relate to the residential-schools experience. Those records were to become the basis of the resource centre set up at the University of Manitoba.
On Friday, Paul Vickery, a Department of Justice lawyer told Judge Goudge the commission was clearly overstepping its mandate by taking the government to court. In addition, Mr. Vickery said, there are so many documents held in Library of Canada Archives that the parties to the settlement agreement could not possibly have expected the government to collect and digitize them all.
Mr. Vickery acknowledged the agreement requires government departments to hand over all of the documents in their active files. But the millions of records held in the archives – which some estimates suggest occupy 6.5 kilometres of shelf space – are already organized in a way that allows them to be easily accessed by researchers.
No purpose is served by compelling the Canadian government to compile and organize all of those documents "simply in order to move them to a separate facility," said Mr. Vickery.
Although the department of Aboriginal Affairs has turned over a million documents and promises hundreds of thousands more, 23 other departments have refused to do likewise.
Julian Falconer, a commission lawyer, said it is an unworkable proposition to ask the limited staff of the TRC to do the document retrieval. The commission was funded with a budget of $60-million over five years. The cost of collecting the relevant material has been estimated at $100-million.
The Library and Archives Canada website says the government departments do not know what records they have or how to find them. "Millions of records are at issue and we don't know where they are," said Mr. Falconer.
More than that, he said, it is obvious from the testimony of senior bureaucrats that, for the first three years after the settlement was put into effect, the government understood it was the department's obligation to compile the records.
"This is about senior officials coming to a realization that they can't make it work and so they have to change the rules," said Mr. Falconer.
The settlement agreement provided $1.9-billion in direct payments to those who were harmed.
But groups representing first nations and the Inuit say the resource centre was critical to the deal and they never would have signed it had they known the government would fail to produce so many of the records.
Stuart Wuttke, a lawyer for the Assembly of First Nations, said the commission was established as a national truth-telling process. The facts about the residential school system are in the voices of survivors, but they are also in the national archives, he said.