In 2017, the Supreme Court of Canada presided over Canada (Attorney General) v. Fontaine, a case brought against the federal government by former National Chief of the Assembly of First Nations (AFN) Philip Fontaine. Fontaine demanded the destruction of Indigenous residential student testimony gathered during the Indian Residential Schools Settlement Agreement (IRSSA), arguing that maintaining these records for potential future disclosure violates the confidentiality of survivors, many of whom shared experiences of intense physical and sexual abuse in their testimony. The Supreme Court ruled in favour of Fontaine, citing the government’s promise to protect witnesses’ privacy as the basis for their decision.
The federal government and some Indigenous groups have argued that destroying records undermines accountability for the horrors perpetrated against Indigenous people at residential schools. However, if implemented correctly, this ruling marks an important step toward honouring survivors’ autonomy by allowing them to control the fate of their testimonies.
As part of the IRSSA’s Independent Assessment Process (IAP), the Government of Canada conducted hearings and negotiated settlements with nearly 40,000 former residential school students. During these hearings, all students testified under the pretense of indefinite confidentiality. Given this, the legal basis for preserving these files in their totality (presumably for future reference in some capacity) is dubious. AFN National Chief Perry Bellegarde echoed similar sentiments in a press release, emphasizing that Indigenous community members shared their experiences under the assumption that hearings were private. While some individuals are comfortable publicizing their testimony, others testified //only// with the assurance that their anonymity would be protected. For this reason, the original stipulations of the IAP should be respected, and personal statements must remain confidential.
The Supreme Court’s ruling does not mandate the destruction of all residential school testimonies, but leaves the fate of individual records to the witnesses themselves. IAP participants have until September 19, 2027, to request that their files be preserved for public use by the National Centre for Truth and Reconciliation (NCTR). Whether residential school testimonies are preserved in federal records is not for the Canadian government to decide, nor is it the decision of the NCTR. Rather, it is an individual decision owed to those who endured the horrors of residential schools. Even within Indigenous communities in Canada, discourse surrounding testimony preservation has been divisive. While governing bodies like Anishinabek Mukwa Dodem have strongly advocated for the reversal of Canada v. Fontaine, the legal injunction by the AFN under Fontaine proves that support exists for the Supreme Court’s ruling. First Nations and Indigenous people do not share monolithic perspectives, and this heterogeneity must be reflected in policy that respects privacy wishes on an individualized level.
Additionally, it is important to recall the original purpose of the IRSSA, the IAP, and its associated testimonies. The IRSSA was never a social education campaign. Rather, it was an effort to win financial compensation and a formal apology for individuals who have been deeply harmed by residential school systems. Witnesses should not be required to compromise the privacy of their traumatic experiences in exchange for acknowledgement of the wrongs committed against them.
The Canadian government must honour the legacies and experiences of these survivors by centring the preferences of those directly affected. While the universal preservation of IAP testimonies would likely be useful in promoting government transparency and public education, it would also be yet another undercut to the autonomy of Indigenous people living in Canada, many of whom have expressed a desire for these records to be concealed or erased.
Fundamentally, it is not for the Canadian government, nor for other non-Indigenous institutions, to dictate how reconciliation is most meaningfully implemented. Just two years ago, McGill, which officially recognizes the Kanien’kehà:ka as the “traditional custodians of the lands and waters on which [the university meets],” removed a ceremonial pine tree planted by Kanien’kehà:ka community members. This move exemplifies the dissonance between the university’s stated dedication to honouring Indigeneity and its disregard for Indigenous wishes that counter McGill’s agenda. It is time for both McGill and the Canadian government to decide whether they will approach reconciliation merely as a semantic exercise or truly commit to a healing process set on Indigenous terms.
