The federal government says the settlement it signed with survivors of aboriginal residential schools did not include a promise to duplicate all of the millions of documents in government archives and send them to a separate research centre to serve as a permanent record of the abuses committed.
Paul Vickery, a lawyer with the federal Justice Department, told an Ontario Superior Court justice on Friday that the settlement agreement requires government departments to hand over all of the documents in active files.
But the millions of records held by Library and Archives Canada – which some estimates suggest would occupy 6.5 kilometers of shelf space – are already organized in a way that allows them to be easily accessed by researchers.
It is clear that no purpose is served by compelling Canada to compile and organize all of those documents "simply in order to move them to a separate facility," said Mr. Vickery.
The Truth and Reconciliation Commission (TRC), which was created as part of the agreement signed in 2006 between survivors, the government, the churches that ran the schools and others, is asking the court to interpret Ottawa's obligations under that deal.
The aim is to force the government to release millions of the documents related to the treatment of children at the schools during the 130 years they were in operation that are buried in federal archives. The documents were to form a permanent and public record of the abuse, to be housed at the University of Manitoba, that could be accessed by survivors and the families.
Although the department of Aboriginal Affairs has turned over a million documents and promises hundreds of thousands more, 23 other departments have refused to undertake the time-consuming and costly task of search the Library and Archives Canada for the records they created.
Federal bureaucrats estimate as many as four million documents may be still outstanding, and the government has said the commission can go look for them – something the commission says it has neither the time nor the resources to do.
Among other things, those documents are expected to include boxes of photographs, RCMP records on the parents who tried to resist having their children taken away to become part of the government's assimilation program, letters, court records, school records and newspaper articles.
Groups representing first nations and the Inuit, and well as lawyers for the commission, say they never would have signed the agreement had they known the government would fail to produce so many of the records. A lawyer representing the Assembly of First Nations told the hearing on Friday that the AFN believe all of the documents must be produced by the government.
But Mr. Vickery told Justice Stephen Goudge said that the intention was never to recreate a second version of what is held at Library an Archives Canada.
"The notion was to permit the TRC to have access to the archives in order that its researchers could conduct targeted research," said Mr. Vickery.
The documents in the archives are well protected for future generations, he said.
And requiring departments to go through the archive would force them to make judgments about what is relevant to the aboriginal residential schools experience what is not, said the government lawyer.
Stuart Wuttke, a lawyer for the AFN, said the commission was established as a national truth-telling process. The facts about the residential school system are in the voices of survivors, but they are also in the national archives, he said.
If the government was concerned about the magnitude of the task of document collection, it should have said so at the time the agreement was signed, said Mr. Wuttke.
"We want the full history revealed and shared with all Canadians," he said. If Canada is successful in withholding the documents," said Mr. Wuttke, "it will limit the collective ability of Canada and Canadians to confront this injustice head on."