The document-collection process has been placed at risk by two factors: the lack of federal government and church cooperation, and cost-related issues.
Lack of Cooperation
The federal government has been aware of its need to provide all relevant documents since the signing of the 2005 agreement-in-principle that preceded the final Settlement Agreement. Despite this, the federal government
- has provided the Commission with only a very limited portion of the relevant documents in its possession.
- has taken the position that it has no obligation to identify and provide relevant historical documents held by Library and Archives Canada to the Commission. Under this approach, departments would have to search and produce records only from active and recent files. This is inappropriate in dealing with matters dating back over a century.
- has informed the Commission that, despite the Commission's request, it has not agreed to provide the Commission with the Settlement Agreement and Dispute Resolution (SADRE) database, which contains all the residential school research files of Aboriginal Affairs and Northern Development Canada.
- has yet to provide the Commission with appropriate levels of access to federal archives—an issue that compromises both document collection and report preparation.
In addition, the federal government has taken the position that it cannot disclose records in its possession if those records were provided to it by the churches in response to specific residential schools court cases. It maintains this position even for records created by the federal government but that contain information first obtained from church records. The federal government asserts that since it obtained the church records and information through the litigation process, it is subject to an implied undertaking to use or disclose those records only in relation to the specific court decisions to which the records relate. The federal government asserts that the fact that the government and the churches settled such court cases through the Settlement Agreement, which includes an express obligation that Canada and the churches would disclose all relevant records in their possession, does not constitute a waiver of those implied undertakings. In the case of a conflict between the implied undertakings and the express obligation in the Settlement Agreement to produce all records in its possession to the Commission, the government maintains it must give preference to the implied undertakings. The Commission finds this position unacceptable.
In addition, while the Commission has received helpful cooperation from most of the churches and archivists it has dealt with, individual church archivists have sought to impose conditions before they will produce records to the Commission. Such conditions include:
- instructions as to how the Commission should caption photographs in its reports
- limitations on the Commission's use of photographs to a "one-time only" use
- distinctions between their "internal" and "external" and "restricted" and "unrestricted" records
- restrictions as to how the Commission can use records in different categories.
Some archivists insist that the Commission acknowledge that the churches own copyright in the records located in their archives. With respect to such claims, the churches make no copyright distinctions based on who created the records or when, and do not explain what copyright interests they are seeking to protect.
All these issues have caused and continue to cause considerable delay for the Commission in its attempt to meet its mandated obligation and enforce compliance of the parties' obligations to produce relevant records. It is unlikely that the document-collection process will be completed without a significant shift in attitude on the part of Canada and those parties who have been reluctant to cooperate.
Cost-related issues
The Settlement Agreement states that Canada and the churches must compile and produce all relevant documents and must bear the cost of producing those documents. Where only original documents are involved, the parties, once they have compiled and produced the documents, may request that the Commission pay the costs of making reproductions of the originals. To date, no such requests have been made.
In terms of the number of documents to be collected, the Government of Canada estimates that it has between five- and fifty-million relevant files in its active and semi-active collections. Beyond this, it may be necessary to review over 100,000 boxes of records held by Library and Archives Canada, including 40,000 boxes of Aboriginal Affairs and Northern Development Canada records. In addition, there are at least 88 church archives from which the Commission must receive records.
Aside from providing Commission researchers general access to the federal archives, Canada has not provided any proposal or signalled any intention of fulfilling its obligation to identify, organize and produce the Library and Archives Canada documents. Based on current project estimates, it
