The federal government must scour its archives for millions of documents related to the Indian residential schools that operated in Canada for more than century – institutions where physical and sexual abuse was rampant and from which many students never returned.
An Ontario Superior Court judge ruled on Wednesday that it is not good enough for Ottawa to provide the Truth and Reconciliation Commission (TRC) with records that can be found in the active files of departments.
Most of the relevant documents were long ago sent to Library and Archives Canada (LAC) for storage, and Mr. Justice Stephen Goudge said the government must now retrieve them so that the commission can fulfill its mandate of compiling a historical record of the residential-schools experience.
Canada's obligation under a settlement agreement signed in 2006 with the school survivors, the government, the churches that ran the institutions, and others, is straightforward, Judge Goudge wrote.
"It is to provide all relevant documents to the TRC," which was created as part of the settlement agreement, he wrote. "The obligation is in unqualified language unlimited by where the documents are located within the government of Canada."
The department of Aboriginal Affairs has turned over a million records and promises hundreds of thousands more. But 23 other departments have refused to do likewise. It is estimated that millions of school-related documents in the archives could occupy 6.5 kilometres of shelf space, and finding them could cost as much $100-million.
Justice department lawyers said employees of the TRC were welcome to search the archives themselves. But the commission, which is running on a budget of $60-million over five years, says it has neither the money nor the resources to do so.
Aboriginal Affairs Minister John Duncan said on Wednesday that the government is reviewing Judge Goudge's ruling.
"The decision is anything but clear cut," Mr. Duncan told the Commons. "The discussion in terms of relevant documents is left somewhat open by the judge. We believe that we have been meeting the spirit and intent, but if there is a slightly different interpretation, we will obviously meet the spirit and intent of the judge's decision."
That suggests the government may be contemplating an appeal.
Julian Falconer, the commission's lawyer, said any appeal would be "unfortunate" and urged the government not to engage in gamesmanship.
"Canada may well have thought that it was honouring the agreement even though it did not turn over the federal archives. But that state of ignorance is no longer available to them," Mr. Falconer said in a telephone interview.
"The obligation to turn over the federal archives is unequivocal," he said. "There is nothing unclear about the judgment. This is about control over history. And Canada has to be willing to relinquish control over the history that is residential schools to the survivors and their families as was contemplated in the agreement."
Mr. Justice Murray Sinclair, the chairman of the TRC, said in a statement that he welcomed the decision. "We're grateful to be able to continue the commission's work of gathering and protecting for future generations documents that are relevant to the history of the Indian residential schools in Canada," Judge Sinclair said.
Shawn Atleo, National Chief of the Assembly of First Nations, called the ruling a significant victory. "Reconciliation is about achieving real change that must come from increased and improved understanding of our shared history," he said. "These documents are essential to the truth-telling and truth-sharing work of the TRC, and all of us."
About 150,000 aboriginal children attended the schools during the 130 years they were in operation – many of them forced away from their families as part of a campaign to "take the Indian out of the child."
Prime Minister Stephen Harper apologized in 2008 on behalf of the federal government for the residential-schools experience, but the Assembly of First Nations says the refusal to release the documents could undermine that gesture.