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Questions raised over preserving sensitive Truth and Reconciliation testimony

Many survivors believed their confidential statements would be destroyed, not archived for posterity.

By MOIRA FARR | OCT 07 2015
Ry Moran, director of the National Centre for Truth and Reconciliation, argues in favour of preserving the oral testimony. Photo: University of Manitoba.
Ry Moran, director of the National Centre for Truth and Reconciliation, argues in favour of preserving the oral testimony. Photo: University of Manitoba.

After years of collecting literally millions of documents and hearing the stories of thousands of aboriginal people who experienced abuse at residential schools, the Truth and Reconciliation Commission is ready to archive this material, much of it brutal and heartbreaking, in the new National Centre for Truth and Reconciliation at the University of Manitoba. Scheduled to open to the public this fall, it will serve as a rich repository and essential historical record of a haunting and tragic chapter of First Nations and Canadian history.

Controversy has arisen, however, over whether survivors’ testimony, given privately by those seeking compensation for the abuse they suffered, should be preserved. It came as a shock to many who told their stories – confidentially, they believed – to adjudicators behind closed doors that their words might be preserved for posterity.

Some argued against this scenario in an Ontario court last year. Justice Paul Perell ruled that the material from the Independent Assessment Process may be kept for 15 years but, in the meantime, identifying information must be redacted and those who testified be contacted to ask whether they would agree to have the documents remain in the archive; only with this agreement could individuals’ testimony be preserved beyond 15 years. Any other scenario would be a betrayal of survivors’ trust and detrimental to the cause of reconciliation, Justice Perell argued.

Some see the ruling as a reasonable compromise but the NTRC launched an appeal, to be heard in court at the end of October. The centre wishes to preserve the documents and argues that it is well-placed to do so as an aboriginal-run organization mandated by the Truth and Reconciliation Commission.

The case raises thorny issues for archivists and historians who have long been held to strict, formal ethical standards regarding research subjects’ privacy and consent – an ever more complex matter in the digital age. Research conducted through the Truth and Reconciliation Centre will be subject to vetting by a University of Manitoba ethics committee.

What happens though, when oral testimony is given without a clear understanding on all sides of what will ultimately happen to it? Those who appeared before adjudicators as part of the Independent Assessment Process may have been verbally assured that no one would ever see their testimony, but may not have been made aware that the legal papers they signed contained an appendix stating that only a librarian or archivist can destroy documents. “Preservation is inherent in the process, but were they properly informed?” asks Ry Moran, director of the NTRC. “Implied understanding is murky at best,” he says.

Opinion about how to resolve the dilemma does not fall neatly along aboriginal/non-aboriginal lines. The Assembly of First Nations has defended the privacy rights of those who believed their testimony was entirely confidential and supports destroying the documents. Others who testified before the commission, and people like Mr. Moran, argue these documents represent fundamental oral history – “the voices of 40,000 people,” he says – and must be preserved in order that the legacy of the residential-school period can be fully understood now and into the future.

Mr. Moran, who is Métis, is distressed by what he sees as fear-mongering and misinformation about how accessible these archived documents will be. “Promises to survivors must be honoured,” he says, pointing to numerous safeguards to privacy already in place at the centre, where aboriginal control of the records is guaranteed. The safeguards are clearly stated on the centre’s website. An elders’ circle will be consulted about any research involving the most sensitive documents. Individual medical and financial records will not be available. Names and other identifying information will be redacted, possibly through the use of new digital software designed to automatically remove such material. “There are companies that specialize in this,” Mr. Moran says. “It would strip out personal information, but leave in what was statistically significant, so that future researchers could understand trajectories and trends.”

Even these assurances are met with wariness by some academics. “I would want to know who is doing the redacting,” says Don McCaskill, a long-time professor of indigenous studies at Trent University. It is understandable, he argues, that aboriginal people would mistrust a government body with such sensitive and deeply personal material. And, he suggests, there may be a tendency on the part of the centre to display a bias toward the interests of researchers and to minimize the potential impact of any privacy breach. A case-by-case approach will be difficult, he says, though he agrees with Mr. Moran that protocols should have been clearer from the beginning. “I would come down on the side of people’s right to confidentiality, if they weren’t properly consulted.”

Emma Cunliffe, an associate professor and expert on research methodologies and jurisprudence with the Allard School of Law at the University of British Columbia, says that, as an academic researcher, “my gut feeling of course is that this should be preserved.” She also questions whether the “lens of contract law” through which Justice Perell viewed the material that led to his decision in favour of destroying the documents is the soundest method of argument in this case. At the same time, she does not believe the fears of participants in the process are necessarily misplaced. “I’m so conscious of the fact that court processes have not been benign to First Nations people. They are entitled to ask tough questions.”

Dr. Cunliffe also points out that, historically, the relationship between academic researchers and aboriginal people has been fraught with misunderstanding and outright betrayal. “Perhaps what’s needed is a process of reconciliation with universities,” she suggests. Like Dr. McCaskill, she argues that, in the end, “the principle of not causing further harm to participants must be paramount.”

Mr. Moran, TRC commissioners and the University of Manitoba, do not disagree with these sentiments. But they do want to ensure that they are able to fulfill their mandate of safeguarding the truth in the truth and reconciliation process. “This is the best, most intact record of survivors’ testimony in the country,” says Mr. Moran. Lawyers for the NTRC will argue in their appeal that there is a greater good in respectful preservation than in destruction of documents – with the appropriate safeguards to confidentiality and the informed consent of those whose painful experiences are at the core of the dilemma. “Let’s talk about what’s possible, rather than play on people’s fears,” says Mr. Moran.

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