Using Litigation to get Indian Residential School Records 

“Nobody thought that the IAP (Independent Assessment Process) would prove to be the richest set of records,” said law Prof. Karen Busby. She was speaking about litigation surrounding Indian Residential School records on Sept. 22, 2014, at the University of Manitoba’s Critical Conversations seminar series on Truth and Reconciliation.

What are IAP records and why are they so contested?  In order to receive compensation for abuse suffered at the schools, residential school survivors needed to provide documents such as criminal, welfare, medical and employment records. In addition, they gave detailed statements about the abuse, with a payment allotted to each individual survivor. Survivors were also welcome to tell their stories in a separate process to the Truth and Reconciliation Commission. “Most of the survivors when they give their statement to the TRC, they do not talk much about the abuse that happened to them,” Busby observed. “They will talk about their early life, the experience of being taken away from their community. They’ll gloss over the time at the school, and then they’ll talk about the aftermath.” The much more detailed IAP records then become essential for researchers wanting to know exactly what went on inside the schools. The sheer number of IAP claims (39,000) compared to the 8,000 or 9,000 statements made directly to the TRC also highlight the importance of preserving the IAP records, Busby argues.

She said the Sisters of St. Joseph of Sault Ste. Marie have argued in court that the IAP statements should be destroyed because some survivors may have been lying to get compensation money. The Sisters deny there was sexual or systemic abuse at the school they operated, they are concerned about damage to their reputation, and they argue that the IAP records have no historical value.

“I find their arguments so offensive that I want to put them on the table,” Busby said.

The Ontario Divisional Court concluded that survivors believed their IAP records would be destroyed, so that must be honoured. However, because some survivors might want their records saved and archived at the new National Research Centre for Truth and Reconciliation at the University of Manitoba, no records will be destroyed for 15 years. (That decision is being appealed by those who want the records destroyed sooner, including the Catholics and the federal government, and by those who think the records should not be destroyed without survivor consent, including the National Research Centre for Truth and Reconciliation.) It is up to the NRC to contact the 39,000 survivors and ask if they would like their testimony and the reasons for decision given by the adjudicator to be housed at the NRC. It’s unclear whether the estates of deceased survivors can consent.

Questions: 

One victim’s story might not necessarily be about only that one victim… so how do we protect those other people?

“We assume that the abusers are always teachers and principals and administrators at the school, but in fact there was a lot of student-on-student abuse,” Busby said. The perpetrator may be someone within the victim’s community who also has family members living there.

What do you think about the Sisters’ claim to privacy?

“I think naming names is tricky,” Busby said. “Researchers need to be able to see names in order to trace what happened. I can see reasons for not wanting to make those public. But I don’t think that’s the big issue here.” She said the Sisters of St. Joseph of Sault Ste. Marie’s claim focuses on the reputation of the order itself. “It says ‘these hurt us as an institution to let these records go.’ I’m not so concerned about the institutional record…. I have a little bit of sympathy about the naming of individual perpetrators in a public way.”

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