Honouring the Truth Reconciling for the Future

The challenge of reconciliation • 311own understanding of the history of government policy and practice in relationto Aboriginal peoples in general and residential schools in particular. But it hasalso been necessary to fulfilling our mandate obligation to ensure ongoing publicaccess to the records through the National Centre for Truth and Reconciliation. TheCommission’s attempts to obtain records were frustrated by a series of bureaucraticand legal roadblocks.In April 2012, the Commission was compelled to file a “Request for Direction”in the Ontario Superior Court of Justice regarding access to relevant federal recordshoused in the national archives. At issue was the question of what Canada’s obligationswere under the Settlement Agreement with respect to providing to the trc archivedgovernment documents housed at Library and Archives Canada. The Commission,Aboriginal Affairs and Northern Development Canada, the Department of Justice,and Library and Archives Canada had very different views as to how the trc shouldacquire these records.In lac’s view, its role was that of the neutral keeper of government records, whosetask was to facilitate and empower federal government departments to canvass theirown archival holdings.Faced with the onerous task of conducting its own research through lac’s vastholdings, Canada’s position was that its obligation was limited to searching and producingrelevant documents from the active and semi-active files in various departments.The government’s view became that departments need provide the trc onlywith departmental researcher status to access their archived documents at lac so thatthe Commission could conduct its own research.The trc’s position was that Canada was obligated to produce all relevant documents,including those at lac, and had an additional obligation to provide theCommission with access to lac in order to conduct its own research. Although thetrc, in the spirit of co-operation, had agreed to obtain departmental researcherstatus, it maintained that this was unnecessary because the Settlement Agreementalready gave the Commission unconditional access to the archives. The end resultwas that Canada had effectively shifted the onus of its responsibility to produce lacdocuments onto the trc.In rendering his decision in favour of the Commission, Justice Stephen Goudge ruled:In my view, the first paragraph of section 11 sets out Canada’s basic obligationconcerning documents in its possession or control. The plain meaning of thelanguage is straightforward. It is to provide all relevant documents to the trc.The obligation is in unqualified language unlimited by where the documents arelocated within the government of Canada. Nor is the obligation limited to thedocuments assembled by Canada for production in the underlying litigation.[para. 69]