Message to Canada: Loosen the grip or else

Justice is prepared to go to court

TORONTO - Independence is key, according to the head of a ;'truth-telling'' commission with a five-year mandate to raise awareness of what happened to aboriginal children in Canadian residential schools and how the legacy of that experience continues to haunt communities.

Harry LaForme, an Ontario Court of Appeals justice who was appointed head of the Truth and Reconciliation Commission in April, said he's prepared to go to court if the federal government doesn't loosen its hold over the commission's $58 million budget.

''It's a critical issue for me,'' LaForme said Aug. 19 in a telephone interview from Vancouver. ''This commission has to be independent and it can't be independent in some kind of illusory fashion; there needs to be control of that budget explicitly by the commissioners.''

He added that he wants to get the matter resolved because he's intent on starting to hear from elderly survivors in September, as there's some urgency in ensuring their stories are told.

In a recent speech to the Assembly of First Nations, LaForme, a member of the Mississaugas of the New Credit First Nation, said that ''if the commission is seen to be merely an arm of the federal government, a government that was a defendant in the Indian residential school litigation, survivors will come forward only reluctantly and indeed, they may not come forward at all.''

Before the commissioners were appointed - the other two are Claudette Dumont-Smith of the First Nations Algonquin community of Kitigan Zibi, Quebec, and British Columbia lawyer Jane Brewin Morley - the federal government set up a secretariat as a government department, part of Indian and Northern Affairs Canada.

LaForme's concern is that this means the commission must go through an unwieldy bureaucratic process and submit its budget to the Treasury Board of Canada (which oversees government spending) in the way other departments do. He said that's not acceptable because the $60 million is not government funds. It's part of the settlement of the class action lawsuit brought by residential school victims against the government and the churches that ran the schools.

''Canada is effectively a judgment debtor in this,'' LaForme said. ''They are required by the courts to pay that money to us and the mandate tells us how to spend it; that means we shouldn't have to access those funds through a Treasury Board submission which makes us then beholden to the Treasury Board in accounting and everything that goes along with it.''

He said a commission can never know how things will unfold and he's not prepared to go back to the Treasury Board for approval every time he wants to depart from the original submission.

Gina Wilson, an assistant deputy minister with Indian Affairs, said she did not think LaForme's concerns are justified.

''I think every indication that we have in terms of working through the settlement agreement with the commission is that we're working very hard to ensure that they have flexibility,'' she said.

The settlement agreement, which was approved by the courts in September 2007, details the commission's mandate, which is to undertake a series of national and community events, create a historical record and establish a research center.

Most commissions of inquiry are government-appointed and report back to the government. In contrast, the LaForme commission's final report will be submitted through the court to the parties to the class action - the former students, the churches, the Canadian government, the AFN and other aboriginal organizations.

Wilson noted that the agreement does provide for the budget to be approved by the Indian Affairs minister and, on approval, the commission will have ''full authority to make decisions on spending'' within various limits, including Treasury Board policies.

''Our view is we can't change the settlement agreement,'' she said, adding that it's the minister, not the commission, who has to submit the commission's budget to the Treasury Board.

''The TRC is absolutely an independent, arm's length, stand-alone entity,'' Wilson insisted. ''The minister, and any minister, has no intention of interfering with that mandate, government fully respects the independence.''

LaForme's not reassured. The concern is that there's an ability to interfere, he said, adding that he disagrees with the government's interpretation of the agreement. The commission has submitted its budget to Indian Affairs Minister Chuck Strahl.

LaForme said he believes Strahl wants the commission to be independent but he'll be advised by his bureaucrats to be guided by the Treasury Board. If that happens, LaForme said, he might have to go before the court for direction.

LaForme also told the AFN that while under the settlement agreement, the secretariat and its executive director report to the commissioners, under the government's imposed arrangements, the executive director also reports to Strahl.

In mid-August, Wilson said that's not going to happen and noted that the executive director reports to the commissioners.

LaForme said he feels the organizational issues can be addressed.

''Those are things we can work through,'' he said, adding that the secretariat staff of around 20 is comprised of ''terrific people.''