In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontaine case at the Supreme Court of Canada. So… I thought I might as well get my stresses and anxieties articulated.
As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).
At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records. Now there is significant contestation: should the records be kept by Archives Canada? By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed? Should individual former students have a say in the matter?
The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR. At the end of that period, all remaining documents are to be destroyed. The SCC will hear the case on May 25, 2017.
The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition). The Coalition is described thus:
We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors. The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents.
The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents. The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.
I personally support the Coalition for Truth.
What has been tricky for me is trying to describe what this support means. So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this. This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).
In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case. Canadian law sees this as a story of privacy and confidentiality. It that the story that best describes the situation here? A story about the need to honour individual choice? A story about the protection of individual interests in privacy and confidentiality?
Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools). And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury. Should the records related to residential school survivors be kept or destroyed? What are the relationships of the individual to the collective? To the past? To the future? The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.
To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples. Will this case be similar?
That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’. It matters that there is space for Indigenous Laws to be enacted here. Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.
I think that is why the intergenerational point the Coalition is making is so important. It is a question of Law. During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective. We already know that those stories we gathered and collected in ‘non-optimal’ ways. That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc). They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).
And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.
As the case is set out, the solution is one which is flawed in so many ways. I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed. I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered. The choice — Keep or Destroy — is a false and cruel one. (i.e., would you prefer I cut off your right arm or your left arm?) Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.
And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’. But the history of residential schools IS my business. It is all our our business. And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).
There is no easy solution here. But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated. It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)
It matters not just WHAT the Court does here. It matters also HOW the Court does it.
Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.
How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws? How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?
How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future. Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?
What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously. It invites us to understand that we (indigenous and settler people) are both a part of this story. It invites us to take seriously how we think about shared memory, and a shared past. It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings. Preserving Truth invites us to change the story we are telling about this case.
It invites us to imagine that it may be possible to simply stop for a moment. What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making? What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation? What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)
Of course, it is hard to talk about this without getting personal (or being personal?) Easy to blame the system. I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present). What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?
OK. Rant over for now. My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.
Back to marking….
reconciliationsyllabus 
Rebecca, thank you very much for this thoughtful post. I too have been watching this case closely, and with real ambivalence. You capture very well the potential for attention to Indigenous legal orders to find solutions to this dispute that would honour the range of concerns and interests in play.
One thing that was particularly striking for me when I first read the Ontario Superior Court of Justice decision in the case (https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4585/2014onsc4585.pdf) is that Perrell J framed the case as one about contract law and the proper interpretation of contracts. (See especially paras 67 ff.) Perrell J resolved the case in accordance with the “primary goal” that, in interpreting a contract, the court should seek to “give effect to the intentions of the parties at the time the contract was made”. The parties to the IRSSA included the Government of Canada, churches, the Assembly of First Nations and former students of the residential schools. Former students could opt out of the agreement within a certain time period. Approximately 340 former students opted out (http://www.nrsss.ca/Resource_Centre/IndianAffairs/IRSRC_SettlementAgreementPresentation_Oct_EN_wm.pdf) while around 38,000 former students applied for compensation (https://www.aadnc-aandc.gc.ca/eng/1315320539682/1315320692192).
The IRSSA and other documents associated with the Independent Assessment Process established mandatory forms for former students who wished to seek compensation. These forms included information about privacy and confidentiality. Claimants in the IAP process were required, as a condition of participation, to sign confidentiality agreements.
I add this context to Rebecca’s wonderful post because it seems to me to reinforce her point about the need to be reflective about which stories are told (by Canadian law and about legal proceedings) and which stories are excluded by the prevailing framings of a given case. In this instance, the narratives of freedom of contract, individual choice and presumptive confidentiality that framed the legal outcome at trial exclude critical attention to the suitability of treating residential school survivors who sought compensation through this process as indistinguishable from the paradigmatic subjects of liberal contract theory. As Rebecca notes, this understanding of the dispute excludes the possible operation of Indigenous legal orders – it also averts a structural analysis of the ways in which the IAP process and IRSSA themselves may have perpetuated and further perfected a set of colonial legal narratives that have caused great harm to Indigenous communities and Indigenous people.
Using private law as the trope by which this case is understood deflects attention from important questions about the relationships between the IRSSA, Canadian legislation and the drafting (by IAP staff?) of uniform application forms and procedures. The trial decision does not explore whether former students who participated in the IAP made an informed decision to accept the confidentiality requirements set out in standard forms, what might have happened if a given former student did not wish to accept those terms but had not opted out of the process, or what light Indigenous laws might shed upon these matters. At para 181, Perrell J states that agreeing to confidentiality was one component of an “acceptable application”. By para 211, this pre-condition to participation is recast as an “assurance” to former students.
The IAP model was predicated on the disclosure of deeply traumatic and personal events as a condition of receiving compensation. Former students were required, as a prerequisite to participation, to enter into undertakings that defined confidentiality purely in Canadian legal terms. In this context, it seems wrong to make assumptions about what (else) privacy and confidentiality might mean to individual claimants and their communities, about the extent to which the particular conception of confidentiality articulated in the IAP documents operated as an indispensable precondition to former students’ sense of trust in the process, and about the extent to which claimants experienced the authoritative imposition of uniform rules as an echo of government policies that have relentlessly attempted to erase difference among Indigenous cultures and to produce behaviours and ways of life that embody colonial norms. Rebecca’s insights about process reach well before the present dispute and into the very design and implementation of the IRSSA and the IAP.
The only possible way to understand the complexity and diversity of former students’ responses to the process is to create space in which they might be able to reflect and consider these questions for themselves, in conversation with their communities, and ideally in conversation with Indigenous laws. So far – and unsurprisingly given the venues in which it has played out – the Fontaine case has not created this space. I sincerely hope that the Supreme Court of Canada finds some way to break out of the frame of Canadian contract law in order to allow former students and their Indigenous communities to find justice in this matter.
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Emma, thanks so much for the extra context, and thoughts on your analysis of the private law tropes! Thanks for attaching the links. It is easy to understand how overwhelming the problem was for the judge of first instance. It will be interesting to see what space the SCC can open up in this case. I am not holding my breath, but i remain hopeful that they can arrive at an outcome that respects the nature of the testimony, the experiences of those who testified, and the interests of intergeneration linkages.
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