One of the transformative experiences of my legal career has been representing Nora Bernard and the other survivors of the Shubenacadie Indian Residential School. Ii has been an honour to represent Nora (RIP) and more than 600 former residents of the Shubenacadie Indian Residential School in Nova Scotia for the past 18 years.
Nora Bernard filed the first class action against Canada seeking compensation for all former residents of a residential school.
Nora and the Shubenacadie survivors eventually joined other survivors from other schools in other provinces who worked together to create the National Indian Residential Schools Class Action Settlement. At the time it was the largest class action settlement in Canadian history and I believe to date it is still the largest historical redress settlement in the world.
I had the privilege of sitting on the Steering Committee that helped negotiate the terms of the national class action settlement. The class action included an Independent Assessment Process (IAP), as a way former residential school students could have their claims of physical and sexual abuse heard, validated and receive compensation for the terrible harm they suffered as children.
Promise of Confidentiality
One of the fundamental principles of the IAP was its confidentiality. Residential school survivors had kept the secret of their terrible experiences in the residential schools for decades. Therefore, in order to ensure as many survivors as possible would feel comfortable participating in the IAP, all of the parties to the agreement promised that survivors stories and experiences would remain private and confidential.
In fact, every IAP hearing starts with all of the parties participating signing a written promise obligating the parties to maintain the confidentiality of the proceedings and the stories and experiences that residential school survivors testified to in their hearings.
Is the TRC trying to break a promise?
Therefore, it has come as a shock to many residential school survivors that the Truth and Reconciliation Commission, which was set up as part of the Indian residential school settlement process, has gone to court seeking an Order forcing the IAP Secretariat to produce the records and transcripts of the thousands of private hearings that have taken place across Canada as part of the IAP.
The terms of the national class action settlement requires that all records be destroyed after completion of all of the IAP hearings.
While there are some residential school survivors who have received counselling and have now come to terms with what happened to them in the schools and are able to speak publically about those experiences, most residential school survivors are still terribly ashamed of what happened to them as children. For them, the privacy and confidentiality promises that were made to them in order to participate in the IAP are tremendously important.
It is worth pointing out that the Truth and Reconciliation Commission says that it does not intend to make survivors statements open for public review. Rather the TRC claims that they want the records to “be archived with the National Research Center”.
Residential school survivors were promised if they participated in the IAP their stories of terrible physical and sexual abuse would be kept confidential and their privacy respected.
There is nothing wrong with the TRC wanting to create a record of the abuse that happened in Residential Schools.But if the TRC wants to keep a record of survivor stories then they need the permission of each and every residential school survivor!
Any survivor that does not want their story archived should be entitled to rely upon the promises made to them that those records would be destroyed once the IAP process is completed.
It is terribly ironic that the Truth and Reconciliation Commission, a body that was set up to help and encourage reconciliation between residential school survivors and the rest of Canada is now the source of fear and confusion and potential broken promises to residential school survivors.