Information flows, despite tight-lipped approach to Iacobucci meetings

After the October resignation of Justice Harry LaForme as chair of the Indian Residential Schools Truth and Reconciliation Commission (TRC), closed door meetings have been held to decide how the commission should proceed.
The meetings, held on Nov. 7 and Nov. 20, were facilitated by Justice Frank Iacobucci, who was instrumental in the development of the Indian Residential Schools Settlement Agreement. This agreement mapped out compensation for the victims, and has as a very unique component to the TRC, which will be put on the record of the abuses that occurred in the schools.
Iacobucci sits at the table with representatives from the Assembly of First Nations, Inuit organizations, the Catholic, Anglican, Presbyterian and United churches and Indian and Northern Affairs Canada.
Noticeably absent from those meetings is representation from the TRC itself, which still has two of its three commissioners in place, Jane Brewin Morley and Claudette Dumont-Smith.
In his resignation letter, LaForme accused the two women, a lawyer and a Native health care worker, of colluding to undermine his authority, outvoting him at every turn. LaForme also criticized their too close connection to the AFN, and had complained in the past that that organization, through its National Chief Phil Fontaine, was attempting to exert influence on the commission's work.
Nancy Pine is the spokesperson for the TRC, and it must be said, has a long history with Chief Fontaine, acting as the communications advisor in his office.
"We're not at the table because INAC has gone back to the original parties that negotiated the settlement agreement," she said, explaining the TRC's absence from the table to Windspeaker. "I'm not saying or suggesting they're starting at square one," she said in response to calls for the resignation of the two remaining commissioners to renew the process and refresh the commission's reputation.
Also absent from the discussion table is the National Administration Committee (NAC) , a body which "flowed out of the original talks," said solicitor Tony Merchant, who is a member of NAC and who also participated in negotiating the residential schools settlement agreement. Merchant Law Group LLP from Saskatoon represented 14 of the 17 class action suits against the government and the churches, making up half of the residential school survivors involved.
Merchant is surprised that the TRC is not represented in the new round of meetings and disappointed that NAC wasn't asked to be involved.
"The National Administration Committee was certainly a part of what happened in terms of selection (of the commission members), so (to not be included, the government is saying,) 'Things have gone wrong and now we're going to take it back into the halls of government and keep it quiet." (Neither the agendas for the meetings, nor the outcomes of the discussions, are being officially commented upon, though there have been leaks of information to the media.
Ken Young, the AFN special advisor on residential schools, a man who toured the country to speak with survivors about the residential schools settlement, is being publicly chastised by boss Fontaine for speaking about the meetings facilitated by Iacobucci.
In an unprecedented move by the AFN chief, Fontaine released a statement to the media on Nov. 16, urging them to respect the "confidential nature of the sensitive discussions," and dropping the hammer on those "close to the commission" sources that are disclosing information.
"This was improper and should be immediately stopped by those responsible," Fontaine wrote. He called the comments by Young in a Globe and Mail article on Nov. 15 "speculative, personal and solely his own." Fontaine said they did not represent the official position of the AFN in the discussions.
Young reported to the Globe and Mail that the table is discussing the idea of an expanded commission panel, seating five commissioners instead of three. Young said INAC Minister Chuck Strahl did not oppose the idea when the national chief raised it with him. Young also disclosed that First Nations Summit Chief Ed John is considered the front runner to replace LaForme, though John wasn't the table's first choice.
Louise Arbour, the former UN High Commissioner for Human Rights, was approached, but declined the position.
Fontaine is insistent that the table be allowed to maintain its confidential work in re-establishing the commission or the task of repairing the damage done as a result of the LaForme resignation as it "becomes much more time consuming and difficult."
"In these discussions, time is our enemy," he told Windspeaker in an e-mail interview."There is enormous pressure to get the Truth and Reconciliation Commission up and running because sick and elderly survivors are dying every day, being denied the opportunity to tell their stories. In order to move the process along quickly, the parties have agreed to maintain confidentiality. Fontaine said that "for the most part" residential school survivors haven't expressed concern about having the Iacobucci-facilitated meetings held behind closed doors.
"Survivors appear to understand that it is not desirable to try and negotiate sensitive matters in the media," Fontaine said.
Merchant isn't totally opposed to the discussions being private, but he does admit there are reasons to be cautious.
"The disadvantage of keeping things private is that you then don't get input from people. There are a lot of organizations who could be giving meaningful input but they can't if they don't even know what anybody's talking about," Merchant said.
Mike Cachegee heads one such organization that would like a say. Cachegee is the executive director of the National Residential School Survivors Society (NRSSS).
"There has to be engagement by survivors across the country, asking for their assistance in setting this thing up and bringing some credibility to it. As it appears now, I, as a survivor or a member of the general public, have no input as to how this thing is going to work." Cachagee goes a step further stating concerns that the fate of survivorsis being put in the hands of the AFN and Inuit organizations, who "along with housing, water, economic development, human rights, already have a 1,001 things in their mandate."
NRSSS has as its primary focus the needs of survivors.
"As a survivor organization it is critical to us, as our survivors are passing away," said Cachagee. He doesn't want the final word on the issue, but said he wants to cooperate with others "to make sure this thing gets up and running as quickly as possible. We've said publicly we're willing to work with whomever to get this thing to work."
 "The problem with organizations that have to deal with the government on an ongoing basis," said Merchant, is "they have tradeoffs that will limit them on specific issues in being effective."
"As long as I can remember, (residential school survivors have) always been a priority of the Assembly of First Nations as a whole. The AFN has the knowledge, the continuity, the commitment and the resolve to see the settlement agreement through to its ultimate implementation." While Merchant knows his clients want to be able to share their experiences, and he understands the importance of having a fully functioning commission as soon as possible, he is concerned that moving too quickly on the TRC could result in the same "inherent conflict" that brought about LaForme's resignation.
In LaForme's letter of resignation, he stated that while he put the priority on reconciliation, commissioners Dumont-Smith and Brewin Morley put their emphasis on truth.
"The court function of truth is different from this reconciling function and so there's an inherent conflict in the concept of truth and reconciliation: one is different from the other," said Merchant. He isn't shy in taking his share of the responsibility in not being critical enough as the truth and reconciliation component of the settlement agreement was being negotiated. He said an "absence of forethought and an absence in planning" resulted in three people being placed to work together without knowing in which direction the commission was heading. Cachagee believes it would be difficult for a new commissioner to join the existing commissioners and would like Dumont-Smith and Brewin Morley to "do the honourable thing (and) resign." Young said in the Globe and Mail article that there was a national campaign afoot to have these commissioners removed from their posts, and a motion will be brought forward in this regard at the AFN assembly in Ottawa in December. While Fontaine will not comment on whether the group is looking at a wholesale turnover of the commission, he does say "that the AFN will continue to strongly advocate that a third commissioner be appointed by the federal government as soon as possible. Fontaine also declined to comment as to whether the new commissioner would also serve as chair of the TRC.
He did note that the group was "not tied exclusively to the existing pool of candidates. We want the best possible Truth and Reconciliation Commission. The Indian Residential Schools Settlement Agreement speaks to a very clear process with respect to the nomination of candidates and the settlement agreement will be followed." Cachagee is also concerned with the TRC's arms-length position from the workings of government that the court insisted it to have. Cachegee said that if the chief commissioner is answerable under the federal Financial Accountability and Privacy Acts that came into force after the TRC was created, then "in essence it removes the independence of the commission and turns the chief commissioner into a deputy minister. If the commission is no longer independent it has to follow the government's existing guidelines and you can only go so far with that," said Cachegee.
"We don't know (what's) being addressed because everything is being kept quiet," said Merchant.