Lawyer says Ottawa misled committee overseeing residential schools claims
OTTAWA – A lawyer is accusing the federal government of withholding important documents from people seeking redress for alleged abuse in Indian residential schools.
He also says the government misled the committee charged with supervising the compensation process.
And that oversight committee, the lawyer argues, is unwilling to do anything about it.
The case is an example of how residential school survivors are dependent on the federal government to provide records that support their demands for justice, leaving them feeling like the decks are stacked against them.
“There seems to be no way to make Canada actually hand over the documents that it itself believes are relevant to the arguments it makes why people can’t claim anything under this process. And there is no one who wants to hold them to account,” said Montreal-based lawyer David Schulze.
Schulze was representing a client seeking compensation through the Independent Assessment Process set up to navigate individual claims of abuse related to Canada’s Indian residential school system. The case was related to her time as a student at Fort George Anglican Residential School, also known as St. Philip’s, located in what is now called Chisasibi, in northern Quebec.
Schulze, who said he cannot go into detail about what happened at the hearing for reasons of confidentiality, said at one point there was an issue of whether Fort George was a residential school or a day school.
The problem, Schulze said, is that while he was relying on documents the government provided, and being told that he had access to all the relevant records, Indigenous and Northern Affairs Canada was doing new research.
Schulze said he found out in April 2015 after his client’s claim had been dismissed that the Indigenous Affairs department had prepared a memo in December 2014 containing new information about the school based in part on 52 previously undisclosed documents.
The memo, which Schulze provided to The Canadian Press, outlined evidence that the Fort George school was not in fact a day school but subject to the so-called “administrative split” – a legal technicality the government has used to convince adjudicators to reject many claims for reasons of jurisdiction.
Indigenous Affairs Minister Carolyn Bennett said in February that she has ordered her department to review the practice.
Schulze said that while this new information would not have necessarily led his client to win, it would have allowed everyone to understand the issue in the same way.
He has filed for another review of the claim.
Indigenous Affairs spokeswoman Valerie Hache emailed a statement Thursday saying the federal government is “committed to the fair and timely adjudication” of claims and that 34,000 of 38,000 claims have been settled successfully so far.
“In this case, Canada has met all its disclosure obligations,” said the statement, which did not provide a reason for why that disclosure took so long.
The bigger problem, Schulze argued, is that he is not the only one the government was keeping in the dark.
The minutes for the March 3, 2015 meeting of the oversight committee showed they discussed issues regarding changes to school “narratives” – the IAP documents summarizing each school and records relating to abuse.
“ . . . Canada stated that to the best of Canada’s knowledge, it has disclosed all documents in its collection related to years of operation. If new relevant information becomes available, Canada will bring it into the narrative,” said the minutes posted online.
Schulze contacted the oversight committee to aruge the government had misled it. But he said he was disappointed by the response from committee chair Mayo Moran.
“The nature of our role in what is an independent adjudication process is such that the oversight committee cannot intervene in any way in individual claims that are before adjudicators,” Moran, who is also provost and vice-chancellor at Trinity College in the University of Toronto, wrote Mar. 2.
Schulze said he was not asking the oversight committee to investigate the individual claim – just alerting them to the possibility the federal government was not being upfront in answering its questions and asking what they were going to do about it.
“All I can take from this is the oversight committee is there to accept any nonsense that Canada’s representatives want to tell them,” Schulze said in an interview.
In an emailed statement to The Canadian Press, Moran said it would be inappropriate to comment on a case that is currently before an adjudicator, but added the committee does not “supervise the conduct of parties” and that independent adjudicators assess appropriate disclosure on a case-by-case basis.
NDP MP Charlie Angus, the indigenous affairs critic, wrote a letter to Justice Minister Jody Wilson-Raybould Wednesday asking her to review the actions of government lawyers.
“The failures of the process are so egregious in this case that it is incumbent upon you . . . to take steps to remediate these breaches of legal, moral and professional standards,” Angus wrote.
Wilson-Raybould’s office did not immediately respond to a request for comment.