Judges hear appeal on Kivalliq Hall residential school dispute

Kivalliq Hall was a student residence for the Keewatin Regional Education Centre from 1984 until the mid-1990s. A panel of judges will rule on the appeal by the Government of Canada, demanding that Rankin Inlet’s Kivalliq Hall be struck from a list of Indian Residential Schools. (FILE PHOTO)

A panel of judges will now spend several months mulling over how to decide an appeal by the Government of Canada, demanding that Rankin Inlet’s Kivalliq Hall be struck from a list of Indian Residential Schools, after lawyers delivered arguments at the Nunavut Court of Justice, Feb. 13.

Kivalliq Hall was a student residence for the Keewatin Regional Education Centre from 1984 until the mid-1990s.

It was added to the list of recognized residential schools under the 2006 Indian Residential School Settlement Agreement, or IRSSA, in a decision by Nunavut Justice Bonnie Tulloch last year.

Canada’s appeal of that decision is expected to resolve two opposing interpretations of the IRSSA.

To begin with, there’s the question whether the agreement’s requirements for an institution to be recognized as a residential school should be followed “to the letter,” or in plain meaning—that is, if the words of the agreement are to be interpreted according to the ordinary meaning of the language.

But the appeal will also wade into murkier waters, such as Canada’s ambiguous level of control within the Northwest Territories in the immediate years after devolution, through the territory’s federally appointed commissioner.

The stakes in the appeal are high.

Tulloch’s decision opened the door for former students of Kivalliq Hall to file for compensation under the IRSSA’s common experience payment, a $1.9-billion fund that gave lump-sum payments to any Indigenous persons who lived at a residential school.

The Attorney General of Canada warned in submitted court documents that Tulloch’s decision “impermissibly increases Canada’s obligations under the IRSSA,” and could make Ottawa liable for additional settlements if more residential schools are added.

The decision could potentially reopen a litigation process that’s already winding down, the Crown said.

Cynthia Dickins, the lawyer representing the Crown in court, said “Canada requests this court to reject the use of speculation and conjecture,” which she alleged formed the foundation of Tulloch’s original decision.

“This decision would be an outlier, when you compare it to the other Article 12 decisions,” Dickins said, referencing the specific article under the IRSSA to include a new residential school.

The original court action to add Kivalliq Hall under the IRSSA was based on about 30 interviews with school survivors compiled under an affidavit by Nunavut Tunngavik Inc., as well as a personal affidavit by Baker Lake MLA Simeon Mikkungwak, who lived at the residence between 1985 and 1989.

Dickins argued that none of the witnesses included on those affidavits could prove that it was the Canadian government who was responsible for relocating them to Kivalliq Hall: a “listed” requirement under the IRSSA for recognition as a residential school.

There is also no evidence proving that the Canadian government was responsible for Kivalliq Hall’s operation, another requirement under the agreement, Dickins said.

But NTI’s lawyer Raymond Murray disagreed, countering that “all the building blocks are there to make the factual inference” that Canada was jointly responsible for the operation of Kivalliq Hall in the mid-1980s.

That’s because the Government of the Northwest Territories needed approval and funding from Canada’s Department of Indian and Northern Development to build Kivalliq Hall in 1984, even though the devolution process had been underway in the territory since 1970, Murray said.

Murray said that project proposals filed with Canada included funding for both the construction of the building and operational costs for its first few years within the approved $5 million in costs.

And the commissioner of the territory was a federally appointed position when Kivalliq Hall was built, making Canada the de facto authority for education-related matters and the ultimate authority behind the placement of students.

Dickins countered with other paperwork unearthed from the late 1980s and early 1990s, proving that the GNWT or, in some cases, individual parents applied for children to be placed at the residence.

But Murray said those years in question are immaterial to when Mikkungwak was relocated in 1985 from either attending Akaitcho Hall in Yellowknife or Ukkivik Hall in Iqaluit—both recognized Indian Residential Schools under the IRSSA—and placed in Kivalliq Hall.

Murray went further to say that little evidence beyond the original project proposals exists from Kivalliq Hall’s first few years of operation, and is in part why Tulloch relied on provisions within the IRSSA to account for “non-listed factors” in her decision.

“Canada’s role in the Northwest Territories government and education at the time is irrefutable,” Murray said, citing the executive powers held by the federally appointed commissioner at the time the GNWT applied for funding to building Kivalliq Hall, and when Mikkungwak was relocated to the residence.

“Canada was acting within the territorial government, through the commissioner and the deputy commissioner’s role,” he said.

The three-judge panel reserved its decision on the appeal following closing arguments.

Lawyers expect it will take the judges several months to publish their decision.