Kivalliq Hall not an eligible residential school, Canada argues
Federal lawyers appeal decision to add GNWT residence to eligibility list for common experience payment
The federal government is appealing a decision by Nunavut Justice Bonnie Tulloch, who in December 2016 ruled that Rankin Inlet’s Kivalliq Hall student boarding home is a residential school under the 2006 Indian Residential School Settlement Agreement.
Tulloch applied factors that fall outside the provisions of the residential school agreement or “IRSSA,” federal lawyers said in documents filed with the Nunavut Court of Appeal.
That decision “impermissibly increases Canada’s obligations under the IRSSA,” and will lower the bar for other schools to qualify, federal government lawyers said.
For that reason, Canada is demanding Tulloch’s decision be dismissed.
Tulloch’s decision opened the door for former students of Kivalliq Hall to file for compensation under the common experience payment, a $1.9-billion fund that gave lump-sum payments to any Indigenous persons who lived at a residential school.
The fund was created when the settlement agreement was implemented in 2007.
Kivalliq Hall was constructed in Rankin Inlet by the Government of the Northwest Territories in 1984, and used as a student boarding home for regional high school students until the mid-1990s.
Lawyers for Nunavut Tunngavik Inc. represented Kivalliq Hall students in court, after the federal government refused to pay compensation to the facility’s former residents.
The appeal court will likely decide one central question: was Canada “solely or jointly responsible” for Kivalliq Hall’s operations?
Federal lawyers argue that Kivalliq Hall was run only by the GNWT, not the federal government, and that Canada was not responsible for its operations.
That’s because the devolution of education from Ottawa to the N.W.T. occurred in 1970. After that, schools in the N.W.T. operated under the Northwest Territories Education Act.
The N.W.T.’s Department of Education oversaw the administration and operation of student residences by 1970, and the Government of Canada had no part in running them, federal lawyers said in court filings.
Testimony given by a former Kivalliq Hall student, Baker Lake MLA Simeon Mikkungwak, provided “no evidence” that the Canadian government was behind a notification telling him to attend high school in Rankin Inlet instead of Yellowknife in 1985, federal lawyers said.
NTI lawyers admit in court documents that Tulloch’s decision appeared to go outside the literal interpretation of the IRSSA’s provisions.
But they also said it is “well within her discretion to find other factors supporting how Canada was jointly responsible for the operation of [Kivalliq Hall].”
That’s because devolution of authority over education from Canada to the Northwest Territories was not immediate, and “particularly in areas of education, was not complete” even by the time the GNWT applied to the federal government for funding to build Kivalliq Hall in 1984.
“All of these costs were to be borne by Canada, including the salaries of teachers and Kivalliq Hall staff,” NTI lawyers said.
Evidence for this was seen in the actions of Canada’s Treasury Board, which sent its approval letter for the Kivalliq Hall project to the deputy minister of Indian Affairs and Northern Development, and not to the GNWT.
Mikkungwak’s testimony is also in line with similar experiences faced by Indigenous youth in identified residential schools under the IRSSA, NTI argued.
“Kivalliq Hall’s culture and environment resembled other residential schools,” court documents claim, adding “Kivalliq Hall students complained of abuse, and the teachers were mostly non-Inuit people.”
Lawyers are scheduled to appear before the Nunavut Court of Appeal on Feb. 13.