Fontaine v. Canada (Attorney General), 2016 NUCJ 31

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Fontaine v. Canada (Attorney General), 2016 NUCJ 31 Date: 20161214 Docket: 08-15-121 Registry: Iqaluit Applicants: Larry Philip Fontaine, et. al. -and- Respondents: The Attorney General of Canada, et. al. ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Applicants): Raymond Murray; Alison McEwen Counsel (Respondents): Wayne Schafer Location Heard: Iqaluit, Nunavut Date Heard: September 9-10, 2016 Matters: Application to add a school to the approved list of schools under

Schedule F; Canada. Indian Residential Schools Settlement Agreement (8 May 2006),

Article 12 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT . 1 I. NATURE OF THE APPLICATION .. 3 II. BACKGROUND AND FACTS .. 3 A. The Settlement Agreement and Indian Residential Schools . 3 B.

Article 12 applications . 4 C. Parties to and procedural history of the Kivalliq Hall application .. 6 III. ISSUES .. 7 IV. THE APPLICANTS’ POSITION .. 8 V. CANADA’S POSITION .. 12 VI. ANALYSIS .. 16 A. Preliminary matter: should the Court disregard any of Canada’s submissions? 16 B. Does Kivalliq Hall satisfy the criteria of

Section 12.01(2) to be added to

Schedule “F”? 20 (i). Was the child placed in a residence away from the family home by or under the authority of Canada for the purposes of education? . 23 (ii). Was Canada jointly or solely responsible for the operation of Kivalliq Hall and care for the children resident there? . 24 B.ii.1 Canada’s continuing involvement in NWT education-related matters . 25 B.ii.2 Canada’s decisional and financial involvement in Kivalliq Hall 33 B.ii.3 Factors enumerated in

Section 12.01(3) 37 VII. CONCLUSION .. 40 I. NATURE OF THE APPLICATION [ 1 ] In this proceeding, Simeon Mikkungwak [Mr. Mikkungwak] and Nunavut Tunngavik Inc. [NTI] (collectively, the applicants ), applied for an order declaring that Kivalliq Hall be added as an institution pursuant to

Article 12 of the Indian Residential School Settlement Agreement [1] for the period from 1985-1995. The applicants further seek an extension of time for former Kivalliq Hall students to apply for compensation under the Settlement Agreement . [ 2 ] This is the first time that the courts tasked with overseeing the implementation of the IRSSA [2] have been asked to determine an

Article 12 application concerning an institution located in a territory. Ultimately, the unique nature of the historical relationship between the Northwest Territories and Canada factors heavily in the determination this Court has been asked to make.

[ 3 ] For the reasons that follow, I find that Kivalliq Hall meets the test set out in

Section 12.01(2) of the IRSSA [Section 12.01(2)] to qualify as an Indian Residential School [IRS] within the meaning of the Settlement Agreement. II. BACKGROUND AND FACTS A. The Settlement Agreement and Indian Residential Schools [ 4 ] The IRSSA gave effect to a broad resolution of claims arising out of the existence and operation of Indian Residential Schools . The Settlement Agreement was incorporated into Approval Orders issued in nine provinces and territories between December 15, 2006, and January 15, 2007 [3] . The Nunavut Court of Justice is one of the nine provincial and territorial superior courts that supervise the administration of the IRSSA . [ 5 ]

Section 1.01 of the Settlement Agreement defines Indian Residential Schools as:

a) Institutions listed on List “A” to the Office of Indian Residential Schools Resolution Canada’s Dispute Resolution Process attached as

Schedule “E”;

b) Institutions listed in

Schedule “F” (“Additional Residential Schools”) which may be expanded from time to time in accordance with

Article 12.01 of this Agreement; and

c) Any institution which is determined to meet the criteria set out in

Section 12.01(2) and (3) of this Agreement. [ 6 ] Two types of compensation are available to class members under the Settlement Agreement:

a) the Common Experience Payment [CEP] for those who resided at an IRS ; and

b) compensation pursuant to the Independent Assessment Process [IAP], which facilitates the expedited resolution of claims for serious psychological abuse, sexual assaults, and other abuse resulting in serious psychological injury. [4] [ 7 ] Both of these forms of compensation are engaged in relation to the present application. B.

Article 12 applications [ 8 ] Pursuant to

Article 12, a person or organization can request that an institution be added to

Schedule “F” of the Settlement Agreement by submitting the name of the institution and any relevant information in their possession to Canada. [5]

Section 12.02(2) of the Settlement Agreement sets out the criteria for adding an institution to

Schedule “F”:

a) The child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education; and,

b) Canada was jointly or solely responsible for the operation of the residence and care of the children resident there. [ 9 ]

Section 12.01(3) of the Settlement Agreement [Section 12.01(3)] also contains a non-exhaustive list of indicators that Canada was jointly or solely responsible for the operation of the residence and care of children there, which include whether:

a) The institution was federally owned;

b) Canada stood as the parent to the child;

c) Canada was at least partially responsible for the administration of the institution;

d) Canada inspected or had a right to inspect the institution; or,

e) Canada did or did not stipulate the institution as an Indian Residential School.

[ 10 ] Once Canada receives a request to add an institution to

Schedule “F” pursuant to

Article 12, it will, within 60 days or such other time as Canada may ask of the requestor, research the proposed institution and determine whether it is an IRS as defined in the Settlement Agreement and will provide the requestor and the National Administration Committee [NAC] [6] its decision on the request, written reasons for the decision, and a list of materials upon which the decision was made. [7] [ 11 ] Should either the requestor or the NAC dispute Canada’s decision to refuse to add a proposed institution, the requestor may apply to the appropriate court, or the NAC may apply to the court of the province or territory where the requestor resides, for a determination. [8] [ 12 ] Since the approval of the Settlement Agreement , the courts responsible for supervising its implementation have adjudicated a number of

Article 12 disputes concerning Canada’s refusal to add an institution to

Schedule “F”. [9] C. Parties to and procedural history of the Kivalliq Hall application [ 13 ] The applicant NTI is an organization whose mandate is to ensure the promises made by the Crown in Right of Canada under the Nunavut Land Claims Agreement [10] are honoured and implemented. NTI represented former Inuit residential school students from Nunavut in the class action leading to the ratification of the Settlement Agreement. NTI continues to represent former Inuit residential school students from Nunavut with respect to the implementation of the Settlement Agreement . [11] [ 14 ] As a child, the applicant Mr.

Mikkungwak resided with his mother in Baker Lake in present day Nunavut, where he attended school until he completed grade 9. He had to attend another school for high school, given that there was no high school curriculum provided in his home community. Although he had expected to attend Sir John Franklin High School and live at Akaitcho Hall , he was told that he would instead be schooled at Keewatin Region Education Centre [KREC] and would live at Kivalliq Hall . Kivalliq Hall was a 40-bed residence located in Rankin Inlet, Northwest Territories [NWT]. It operated from 1985 to 1995.

Kivalliq Hall was 278 kilometres from Baker Lake. Mr. Mikkungwak lived there while attending KREC from 1985 to 1989, at which time he obtained his high school diploma. [12] [ 15 ] Mr. Mikkungwak applied to Canada to receive the CEP based on having resided at Kivalliq Hall . Canada rejected his application on December 24, 2007.

Canada also denied his request for reconsideration that Kivalliq Hall be added to the list of Indian Residential Schools . [13] Canada’s decision is outlined in a letter dated March 24, 2010, which relied on certain enumerated materials to conclude that Kivalliq Hall did not meet the test set out in

Section 12.01(2). [14] [ 16 ] On April 23, 2013, the applicants filed a notice of motion in the Nunavut Court of Justice seeking an order:

a) Declaring that Kivalliq Hall be added as an institution pursuant to

Article 12 of the Settlement Agreement from 1985 to 1995;

b) Extending the timeline for former Kivalliq Hall students to apply for the CEP payment [15] ; and,

c) Granting the applicants the cost of the application. [ 17 ] At the hearing of this application, and for the first time, the applicants sought additional relief: an extension of the timeline for former Kivalliq Hall students to file any IAP claims. Canada consented to this amendment to the relief sought following the hearing. [ 18 ] The Court agreed that if it found Kivalliq Hall were to be added to

Schedule “F” of the IRSSA , it would then receive further submissions in writing from both parties as to whether and for how long the deadlines for filing CEP and IAP applications should be extended, with judgment on those issues to follow. III. ISSUES [ 19 ] The application before the Court is to interpret

Article 12 of the IRSSA and to decide whether Kivalliq Hall should be added to

Schedule “F” as an institution that would qualify students who attended to apply for compensation under the Settlement Agreement .

Section 12.01(2) sets out the relevant criteria to consider in determining this matter:

a) The child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education; and,

b) Canada was jointly or solely responsible for the operation of the residence and care of the children resident there. IV. THE APPLICANTS’ POSITION

[ 20 ] The applicants submit that the criteria set out in Sections 12.01(2)(

a) and (

b) of the IRSSA are met in the context of this application. [ 21 ] The applicants emphasize the nature of Canada’s relationship with the NWT, which is the territory in which Kivalliq Hall was located prior to the creation of Nunavut in 1999. They note that prior to April 1, 1970, Canada exercised full authority over education in the Government of the Northwest Territories [GNWT]. [ 22 ] Canada continued to hold political and administrative authority in the area of education, among other areas, over the NWT from 1951 to 1985. This was a period of incremental and fragmented devolution of governance within the GNWT.

Though the NWT Department of Education began functioning on April 1, 1970, Canada continued to exercise authority regarding education after that date. [ 23 ] Of particular import is that the Commissioner of the NWT [ Commissioner ] was a direct appointee of the federal Minister responsible for the Department of Indian and Northern Affairs [DIAND ]. The Commissioner held the chairmanship of the NWT Executive Council (made up of elected members and four appointees of Canada, who made decisions on NWT governance) until 1986.

He also held a degree of political and administrative power in carrying out procedures and plans of implementation concerning education in the NWT. [ 24 ] The GNWT remained financially dependent on the Government of Canada throughout the 1980s, in that it continued to depend on Canada for the majority of its financial budget, including for education. In the late 1970s and early 1980s, DIAND created capital programs designed to fund projects in relation to health, safety, and education in the NWT, including with respect to Inuit communities.

It also created the Capital Management Projects Department [CMP], which implemented capital projects initiatives and liaised with the Treasury Board of Canada [Treasury Board] for approval of educational upgrades. [ 25 ] The GNWT had its own Financial Management Board [FMB] in the 1980s, which provided submissions to Canada for approval of large expenditures outside the territorial budget – including the construction and operation of Kivalliq Hall .

At the time Kivalliq Hall was planned, built, and operated, the Commissioner was in power and, as a result, all decisions about financing, administering, and operating education facilities first had to be approved by Canada. [ 26 ] In November 1983, in response to population growth in the NWT and the closure of the Churchill Vocational Centre in Manitoba, the Executive Council provided a Record of Recommendation [the Record] [16] to the Commissioner for the funding of Kivalliq Hall , a forty-bed residence in Rankin Inlet, in order to offer senior academic high school education in the Keewatin Region of the NWT.

The FMB reviewed and critiqued the Record and the Department of Education’s submission with an eye to ensuring DIAND’s CMP would approve the proposal. It ultimately recommended to the Commissioner to provide the Department of Education ’s submission to the Treasury Board and stated that planning and construction could not be initiated until the Treasury Board signed off on the project. [ 27 ] The proposal for Kivalliq Hall was submitted by the NWT’s Minister of Education to the federal Minister responsible for DIAND , with a request for Treasury Board approval.

The proposal required approval for funding of all facets of construction, operation, administration, housing, and teaching at Kivalliq Hall , including housing units for teachers and staff, salaries for teachers and staff,and electricity, fuel, light, and other necessities related to the construction and operation of the building. [ 28 ] The Treasury Board reviewed the submission with DIAND ’s assistance and approved the Kivalliq Hall project and funding on June 7, 1984.

The Treasury Board informed DIAND that it would increase the project authority for the territorial governments to $5,000,000 in consideration of the capital management documents the governments had provided, subject to the concurrence of the Minister responsible for DIAND . [17] [ 29 ] As a result, Canada paid Kivalliq Hall staff through GNWT’s payroll system for its public sector employees and the nurses were paid directly by Health Canada . DIAND funded 100% of all operations, maintenance, and construction of Kivalliq Hall . [ 30 ] Students – including Mr.

Mikkungwak – began to be sent to Kivalliq Hall in 1985 from six different communities, including Baker Lake. Most students travelled more than 200 kilometers from home to live at Kivalliq Hall , where the culture and environment was similar to other residential schools. Kivalliq Hall was used as a residence until 1995. [ 31 ] The applicants submit that the following factors are particularly relevant to this application:

a) Inconsistent treatment by Canada of former residential school students in NWT : Ukkivik Residence, Akaitcho Hall and Cambridge Bay – institutions located in the NWT – are all eligible for the CEP , which demonstrates Canada concedes there was federal influence

over NWT residential schools after 1970, despite Canada’s position in this case that 1970 should be the date that determines eligibility;

b) Canada’s position and research in determining Kivalliq Hall’s eligibility : Canada focussed on a 1968-69 annual report concerning the transfer of education powers from Canada to GNWT, without being able to confirm whether that transfer removed all responsibility regarding residences. Further, Canada was not able to produce documents concerning Kivalliq Hall from its research directories, record collection, and databases that one would generally expect to find in relation to such residences (e.g., joint agreements); and

c) Kivalliq Hall post-1991 – NWT Education : From 1991 onwards, the NWT Department of Education and the NWT Divisional Boards of Education played a more prominent role in the decision-making powers for operating residences and schools like Kivalliq Hall , in contrast to the NWT’s obligation to report to federal authorities in 1985. [ 32 ] The applicants encourage the court to take into account the CEP Validation Principles when evaluating the

Article 12 application. Those principles hold that “validation must be based on the totality of the information available concerning the application”. The CEP Validation Principles further maintain that “inferences to the benefit of the applicant may be made based on the totality of the information available concerning the application” and that “if information is ambiguous,

interpretation should favour the applicant.” [ 33 ] Whether an institution should be added to

Schedule “F” through an

Article 12 application turns on the facts of the specific situation of the institution. Consistency in judicial determinations, in decisions under the Settlement Agreement generally, and in the consistent treatment of class members is important to this analysis. [ 34 ] Concerning the first part of the test set out in

section 12.01(2) of the IRSSA [Section 12.01(2) test] – as the applicants put it, “whether a former student attended a residence away from home under the authority of Canada” – whether the school was in a remote location is a relevant consideration. Mr. Mikkungwak and most other students came from far away locations to attend Kivalliq Hall ; they were instructed and redirected from living at Akaitcho Hall to living at Kivalliq Hall ; and no parent or band was involved in sending Mr. Mikkungwak to Kivalliq Hall. [ 35 ] Regarding the second part of the

Section 12.01(2) test , the applicants submit that Canada was jointly responsible for the operation of Kivalliq Hall and the care of the children there. Kivalliq Hall was federally-owned and built on Crown land, satisfying the factor enumerated in

Section 12.01(3)(a). Canada had the same powers and responsibility as the territories, standing as a parent to the child, within the meaning of

Section 12.01(3)(b). Further, Canada was at least partially responsible for the operation of the residence, satisfying the criterion in

Section 12.01(3)(c), evidenced by the facts that a gym teacher and nurse resident at Kivalliq Hall were paid by Canada and that the NWT Department of Personnel was run by the Commissioner, who was responsible for the construction, maintenance, and operation of Kivalliq Hall. [ 36 ] The applicants also emphasize that the list of factors to consider set out in

Section 12.01(3) is not exhaustive. They submit that the following factors favour a finding that Canada was jointly responsible for operating and constructing Kivalliq Hall :

a) Kivalliq Hall was built for the sole purpose of educating Inuit children;

b) Canada investigated and audited all financing for the construction, operation, administration, and maintenance of Kivalliq Hall ;

c) Canada insisted that the residence be constructed with a mandate of providing residential schooling to Inuit children – a mandate that originated from the Capital Project Policy to fund, evolve, and build further Inuit schoolings in the north;

d) After approving the GNWT’s submission concerning Kivalliq Hall , Canada fully funded all expenses generated from housing and schooling the former students, teachers, and staff; and

e) Canada demanded that when further funds were required for phase two of Kivalliq Hall , GNWT submit a capital plan and proposals for further federal funding to CMP and the Treasury Board . V. CANADA’S POSITION [ 37 ] Canada’s position is that Kivalliq Hall does not meet the criteria set out in IRSSA s ections 12.01(2)(

a) or (

b) to qualify as an Indian Residential School within the meaning of the Settlement Agreement .

[ 38 ] Prior to the construction of Kivalliq Hall , there had been a long history of Canada devolving major services and administrative functions to the GNWT. This involved elections under the territorial election order; taking steps to transform the Commissioner’s role into one similar to a Lieutenant Governor (i.e., a non-executive role); and the Commissioner ceasing to sit in the Assembly during formal sessions.

By 1984, the evolution to full territorial responsible government was completed when the Commissioner removed himself from the Committee of the Whole and gave up his responsibilities for the civil service to an elected member.

As a result of the historical evolution to responsible government, various courts have recognized that the GNWT is, and has been for many years, an entity that is separate and distinct from the Parliament of Canada and is sovereign within its sphere of power and responsibility. [ 39 ] As of 1970, the NWT Department of Education was responsible for all aspects of the education program operated by the GNWT.

Keewatin Regional Education Authority , in conjunction with the Keewatin Divisional Board of Education , was responsible for the recruitment, placement, and in-service training of territorial teachers; including evaluation of credentials, staffing procedures, and pay and benefit scales. [ 40 ] The GNWT assessed its needs and developed a plan and budget to forward a Treasury Board funding request to Canada for Kivalliq Hall . The budget submission stated NWT’s Executive Council and FMB had approved the Department of Education offering secondary school education in Keewatin as of September 1985.

It covered a budget for staff, capital costs, and operation and maintenance costs. The Treasury Board approved this request for funding for “the Government of the Northwest Territories” to construct Kivalliq Hall without any conditions, save for a requirement for a capital plan if any additional funds were requested. [18] [ 41 ] Kivalliq Hall operated without any direct, or indirect, operational or administrative involvement from Canada for the following nine years.

The documentary evidence shows the GNWT, or one of its departments, was responsible for, among many other things, complying with regulations, maintaining the premises, setting and enforcing policies concerning Kivalliq Hall , communicating with parents of residents, and executing contracts. None of these operational and administrative steps involved Canada. [ 42 ] Canada submits that in considering whether Kivalliq Hall meets the test set out in

Section 12.01(2), the court must keep in mind that settlement agreements are effectively binding contracts. A court can only rewrite settlement agreements on the same grounds that any contract may be rectified, e.g., fraud, mutual mistake, or some other unconscionable act. The IRSSA must also be read in light of general principles of construction and

interpretation. The aim of

interpretation is to objectively determine the parties’ objective contractual intentions by reference to the words in the agreement, which must be interpreted according to their plain and ordinary meaning. It is also necessary to have regard for the specific principles of

interpretation set out in the IRSSA, including that the contra proferentem rule does not apply and that the IRSSA constitutes the entire agreement between the parties. [ 43 ] Concerning the first part of the

Section 12.01(2) test – whether the child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education – Canada admits that Mr. Mikkungwak attended KREC and resided at Kivalliq Hall from 1985-1989. However, Canada submits there is no evidence that he attended KREC by, or under, the authority of Canada. The record before the court actually confirms that population growth in the NWT had caused existing residences to become overcrowded and that some students attended schools away from home. [ 44 ] Regarding the second part of the

Section 12.01(2) test – whether Canada was jointly or solely responsible for the operation of the residence and care of the children resident there – Canada submits that the applicants primarily rely on the financial relationship between Canada and the GNWT to support the contention that this aspect of the test is met. Funding for the construction of Kivalliq Hall was simply in the form of a transfer payment. This does not constitute the operation of Kivalliq Hall .

In the context of a proper delegation of educational responsibilities, it has been held that Federal Crown funding is a residual responsibility insufficient to ground liability. Further, Canada analogizes to the Moosehorn decisions, wherein an

Article 12 application was denied on the basis that Canada’s involvement in the operation of the schools at issue was peripheral and at best characterized as a funding source linked to the number of Indian students attending each school. [ 45 ] Concerning the factors set out in

Section 12.01(3), Canada submits that Kivalliq Hall was not federally-owned. There is also no evidence that Canada stood as the parent to children resident at Kivalliq Hall . [ 46 ] Further, Canada points out that the applicants do not allege that Canada ever inspected Kivalliq Hall , while there is evidence of GNWT conducting, scheduling, or paying for inspections at Kivalliq Hall .

[ 47 ] Finally, Canada never stipulated Kivalliq Hall as an Indian Residential School. [ 48 ] Canada adds that there is no evidence NTI , a party to the IRSSA , ever argued that Kivalliq Hall should be included in Schedules “E” or “F” of the IRSSA during the negotiations leading to the Settlement Agreement . It further explains the listing of Ukkivik Residence, Akaitcho Hall and Cambridge Bay as IRS s by reference to the fact these institutions were planned, owned, or operated by Canada prior to 1970, when full responsibility for all educational matters was transferred to the territorial government.

It adds that the eligible institutions listed in Schedules “E” and “F” were never subject to the test criteria set out under

Section 12.01. [ 49 ] Canada further submits that nowhere in the second part of the

Section 12.01(2) test is the initial funding of an institution equated with partial responsibility for the institution. The applicants provide no evidence that Canada was involved in administering Kivalliq Hall .

Instead, a memo from the NWT’s Director of Education, a report regarding territorial responsibility, and the observations of a former NWT Director of Education, all indicate that the GNWT had full responsibility for the administration of education and educational facilities in the NWT. [ 50 ] Canada encourages the Court to dismiss this application and emphasizes that the Court should not interfere with the agreement that the parties have struck in the form of the Settlement Agreement , in which the signatories chose not to include Kivalliq Hall . Relying on authorities relating to contractual

interpretation ( including Sattva Capital Corp v Creston Moly Corp [19] ), Canada submits that adding a territorially-owned and operated residence to

Schedule “F” would be a material change to the IRSSA . Canada notes that NTI , a party to the IRSSA , had the opportunity to pursue including Kivalliq Hall as an IRS in the Settlement Agreement, but did not do so. VI. ANALYSIS A. Preliminary matter: should the Court disregard any of Canada’s submissions? [ 51 ] The applicants object to the submissions Canada has made regarding the negotiations of the Settlement Agreement .

Specifically, Canada has asked this Court to take into account that Kivalliq Hall was never considered for, or was excluded from, Schedules “E” and “F” of the Settlement Agreement , which it says supports the assertion that Kivalliq Hall should not be added as an institution under

Article 12. The applicants submit that this Court should not consider Canada’s assertions regarding Settlement Agreement negotiations in deciding this matter because the Settlement Agreement , through

Article 12, contemplated adding further institutions; there is no evidence to support Canada’s allegations and assertions; they constitute extrinsic evidence dealing with the subjective intentions of the parties, or, alternatively, they do not assist in understanding the documents at issue; and the negotiations outlined by Canada are subject to settlement privilege. [ 52 ] I agree that the Court should not have regard to Canada’s representations concerning the negotiations leading up to the Settlement Agreement , specifically concerning the omission of Kivalliq Hall as an Indian Residential School .

The Settlement Agreement clearly contemplates that institutions may be added at a later date and sets out a test in

Section 12.01 for doing so. That test does not contemplate consideration of whether an institution could possibly have been added prior to the Settlement Agreement being reached or any reasons for not doing so. Further, Canada has not tendered any evidence concerning what was or was not said during the negotiations about Nunavut institutions generally or Kivalliq Hall specifically. As such, I find that submissions on these matters are irrelevant to the analysis required by

Section 12.01 and unhelpful to the Court in determining this matter. [ 53 ] The applicants also submit that Canada is precluded from invoking findings of fact from other judicial decisions in this application. They submit that Canada has attempted to improperly rely on these facts to promote their theory that the GNWT was independent from Canada as a governing entity, with respect to their legislative assembly, when considering its duty of care to other parties, and in its Executive Council .

The factual assertions with which the applicants take issue are drawn from the cases of NTI v Canada (Attorney General) , [20] Fédération Franco-Tènoise v Canada , [21] Morin v Northwest Territories (Commissioner) , [22] and Northwest Territories v Public Service Alliance of Canada . [23] [ 54 ] Canada made no submissions on the issue of whether and to what extent it is proper for the court to consider these factual findings. [ 55 ] The applicants relied primarily on the case of Walkerton (Town) v Erdman [24] to support their submission that the Court ought not to permit Canada to rely on these factual assertions.

However, I find this case of minimal assistance on this question. Walkerton dealt with the admissibility, use, and trustworthiness of statements made by a witness in examinations under oath relating to one proceeding at a subsequent trial following the witness’s death. Here, I must deal with the question of the admissibility of factual findings in prior judicial proceedings and the extent to which I ought to rely on these findings, if at all.

Nonetheless, were I to consider this question against the considerations for admissibility set out in Walkerton , I would find that the factual findings at issue here are inadmissible,

primarily because the parties and counsel in the prior proceedings are not the same as those in the present application. [ 56 ] The determination of the facts upon which a judgment is rendered is not conclusive as against all the world. [25] In these proceedings, Canada seeks to rely on factual pronouncements in previously decided cases as evidence going to the questions to be determined here. It is trite law that, generally, applications must be determined based on the evidence put before the court through affidavits and tested by cross-examination.

As the applicants correctly note, Canada did not place these decisions before the court through an affidavit and, as a result, the applicants did not have the opportunity to test through cross-examination the veracity of the facts on which they were based. [ 57 ] I am not satisfied that there is a basis on which to take judicial notice of the facts upon which Canada seeks to rely in NTI (NUCJ), FFT, Morin, and PSAC , nor have I been asked to do so. The issues to which these previous factual findings relate are in some respects similar to those in dispute between the parties before me.

Yet, it appears that some of the factual assertions drawn from NTI (NUCJ), are directly contradicted by the evidence before the court in this case.

For example, at para. 41 of its Pre-Trial Brief , citing paras. 12-13 of NTI (NUCJ) (though the proper reference should be to para. 18 of that decision), Canada took the position that as of October 9, 1979, “the Minister of the Department of Indian and Northern Affairs…instructed the Yukon Commissioner to take the final steps towards responsible government.” Per the same paragraph of NTI (NUCJ) , as part of this process, “[c]abinet documents were changed from Commissioner’s Orders and Records of Recommendation to Orders-in-Council and Records of Decision, to reflect the fact that cabinet had replaced the Commissioner as the ultimate decision-maker in the territory”.

However, the document submitted by the Executive Council to the Commissioner regarding the construction of Kivalliq Hall and delivering an academic program for grade ten and eleven students by fall 1985 is entitled “Record of Recommendation” and dated November 8, 1983. [26] [ 58 ] Further, I do not consider it to be an abuse of process to allow the historical facts surrounding devolution to be explored in these proceedings, which, as the applicants submit, are substantively distinguishable from those at issue in NTI (NUCJ), FFT, Morin, and PSAC .

Allowing the litigation to proceed on this issue would not “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.” [27] [ 59 ] For these reasons, I do not consider NTI (NUCJ), FFT, Morin, or PSAC, to be admissible evidence for the factual findings contained therein on which Canada seeks to rely. [ 60 ] However, even if I were to consider the factual findings contained in these decisions to be admissible or if I were to take judicial notice of them, I would neither consider myself bound by them, nor would I consider them to be dispositive of the application.

As I explain below, I am satisfied by the totality of the evidence in this proceeding that Canada was jointly responsible for the operation of Kivalliq Hall . The facts underlying the decisions in NTI (NUCJ) , FFT , Morin, and PSAC, do not preclude me from reaching this conclusion. B. Does Kivalliq Hall satisfy the criteria of

Section 12.01(2) to be added to

Schedule “F”? [ 61 ] As noted above,

Section 12.01(2) sets out a two-part test to determine whether an institution should be added to

Schedule “F” of the Settlement Agreement :

a) The child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education; and,

b) Canada was jointly or solely responsible for the operation of the residence and care of the children resident there. [ 62 ] The applicants bear the onus, on a balance of probabilities, to demonstrate that these criteria are met. [28] [ 63 ] In making this determination, I find that it is proper to take into account a number of considerations. First, whether an institution should be added to

Schedule “F” turns on the facts of the specific situation under consideration. [29] [ 64 ] Second, the Settlement Agreement is intended to offer a measure of closure for former residents of IRS’ s and their families. [30] Importantly, the

preamble to the IRSSA states that all parties desired “a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” and “…the promotion of healing, education, truth and reconciliation and commemoration”. [31] As the court held in Stirland Lake , the IRSSA “combines compensatory, conciliatory, healing, and commemorative aspects in furtherance of these goals.” [32]

[ 65 ] Third, though each case turns on its own facts, consistency among the cases decided pursuant to

Article 12 remains important. To hold otherwise would undermine the goal of fairness to which all parties to the IRSSA aspire and which is enshrined in the Settlement Agreement’s

preamble. It would also undermine the foundational principle that consistency is essential to maintaining the integrity of the justice system. [33] [ 66 ] Contrary to the applicants’ submission, I do not consider that the CEP Validation Principles applicable to the assessment of CEP applications ought to be taken into consideration in determining an

Article 12 application. These principles post-date the Settlement Agreement and apply to the evaluation of a CEP claim for a school that has already been listed on

Schedule “E” or “F”. There is no indicated intent in the Settlement Agreement that these principles should be considered in determining whether a school is an IRS within the meaning of the IRSSA . [ 67 ] In assessing the merits of this application, I have generally preferred the evidence of the affiants Sandra Omik and Mr. Mikkungwak over the evidence of the affiant David Russell, Director of Settlement Agreement Operations West. [ 68 ] Mr. Russell has been involved in a number of

Article 12 applications as a result of the roles he has held with the Department of Aboriginal Affairs and Northern Development Canada . However, as one court previously noted, “[a]part from Mr. Russell’s general expertise with residential school matters, his knowledge comes largely from a review of the documents available in relation to the schools.” [34] [ 69 ] It is clear in the context of this proceeding that Mr.

Russell’s knowledge of the historical relationship between Canada and the NWT is not deep, particularly with respect to the role of the Commissioner or the Executive Council at or around the time that Kivalliq Hall was established. [35] This is not necessarily surprising. This relationship – particularly with respect to the devolution of powers – has been complex and Mr. Russell was not tendered as an expert on the subject. The impact of this lack of expertise, however, is compounded by the paucity of evidence concerning the NWT generally and Kivalliq Hall specifically, that Canada, through its sole affiant, Mr.

Russell, has placed before this court. This appears to be, in large part, the result of Canada being unable to retrieve any documents mentioning the Northwest Territories or Kivalliq Hall for the time period 1985-1989 from the various databases that it searched in response to Mr.

Mikkungwak’s request to recognize Kivalliq Hall as an IRS . [36] Canada declined to contact persons who worked or lived at Kivalliq Hall as part of its research to determine whether the institution was an IRS , saying it is not part of its research protocol to do so. [37] All of these factors affect the weight that I have assigned to the evidence of Mr. Russell. [ 70 ] On the other hand, I find the first-hand account of Mr. Mikkungwak’s experience with Kivalliq Hall to be credible and Canada has made no suggestion to the contrary. In fact, Canada chose not to cross-examine Mr.

Mikkungwak. [ 71 ] I reach the same conclusion concerning credibility with respect to the evidence tendered through the affiant Ms. Omik. In preparing her affidavit, Ms.

Omik reviewed extensive documentation; worked with several researchers to learn about Canada’s involvement in Kivalliq Hall ; spoke with 30 Kivalliq Hall students about their attendance; and spoke with former NWT Education Minister Dennis Patterson regarding the interplay between Canada and the NWT concerning education and DIAND ’s influence regarding education throughout the 1980s. [38] Much of this work and research pertained to the time period in question in this application. [ 72 ] For all of these reasons, I have accorded relatively greater weight to the evidence of Ms. Omik and Mr.

Mikkungwak than to the evidence of Mr. Russell in determining this application. (i). Was the child placed in a residence away from the family home by or under the authority of Canada for the purposes of education? [ 73 ] All parties accept that the applicant Mr. Mikkungwak resided at Kivalliq Hall while being schooled at Keewatin Region Education Centre from 1985 through 1989, when he received his high school diploma. [ 74 ] The parties disagree about whether Mr. Mikkungwak was placed at Kivalliq Hall by or under Canada’s authority. Canada submits there is no evidence to suggest this was the case.

It suggests that Mr. Mikkungwak attended Kivalliq Hall due to overcrowding at Akaitcho Hall and Ukkivik Residence – recognized IRS s – resulting from population growth in the NWT. [ 75 ] However, on the evidence before me, I infer that Mr. Mikkungwak was placed at Kivalliq Hall by or under Canada’s authority. Mr. Mikkungwak describes how he came to be placed at Kivalliq Hall as follows: In 1984, I expected to attend Sir John Franklin High School and live at Akaitcho Hall.

It was standard practice for Baker Lake students to be transferred to Sir John Franklin High School and live at Akaitcho Hall prior to the construction of Kivalliq Hall. Instead, and immediately before I departed, I was told that I was going to be schooled at Keewatin Region Education Centre (“KREC”) and would live at Kivalliq Hall. I was informed that the reason for the change was that student enrolment at KREC was low. Kivalliq Hall is 278 kilometres from my home in Baker Lake. [39] [ 76 ] Mr.

Mikkungwak does not say who told him he was going to be schooled at KREC or who told him the reason for the change in school was that student enrolment was low. There is no direct evidence on these points. [ 77 ] Nonetheless, it is clear that had Mr. Mikkungwak not been redirected to Kivalliq Hall , he would have resided at Akaitcho Hall – a recognized Indian Residential School . In my view, diverting students from a recognized IRS to Kivalliq Hall – whether due to lack of space at the former or low enrollment at the latter – invites the inference that this placement was by or under the authority of Canada for

the purposes of education. This brings Kivalliq Hall within the scope of the first part of the

Section 12.01(2) test . (ii). Was Canada jointly or solely responsible for the operation of Kivalliq Hall and care for the children resident there? [ 78 ]

Section 12.01(2)(

b) establishes the second part of the test for determining whether an institution is an IRS : whether Canada was jointly or solely responsible for the operation of the residence and the care of the children there.

Section 12.01(3) sets out a list of indicators to consider in determining whether Canada meets this test. However, an analysis of this part of the test is not limited to these enumerated factors. Rather, it: …calls for an examination of the totality of the relationship between Canada and the institution in question … the non-exhaustive indicators enumerated in

Section 12.01(3) are neither a checklist nor individually determinative. Rather, the enumerated indicators, together with other appropriate indicia, guide an evaluation of the broader nature of the relationship in issue. The weight to be assigned to any particular indicator will necessarily be dictated by the circumstances of the institution in question . [40] [ 79 ] As noted above, each

Article 12 application turns on its own set of facts. [41] This is the first

Article 12 application made with respect to an institution located in a territory. It is undisputed that historically, Canada has exercised much greater control and influence over the governance of territories than it has over the governance of provinces. A central dispute in this application concerns the extent to which Canada exercised control or influence over education in the Northwest Territories during the period when Kivalliq Hall was operational. This context makes this particular proceeding unique among

Article 12 applications. [ 80 ] In my view, there are two significant and interrelated indicators not enumerated in

Section 12.01(3), but arising from the relationship between the NWT and Canada, that support the conclusion that Canada was jointly responsible for the operation of Kivalliq Hall and for the care of the children resident there. The first is the general extent to which Canada remained involved in the education- related affairs of the Northwest Territories at the time Kivalliq Hall operated. This consideration is unique among

Article 12 applications, given the relationship between the territory and the federal government. The second indicator is the extent of the federal government’s involvement in approving and granting funding for the construction and operation of Kivalliq Hall . As has been previously established, whether Canada provided monies for the construction and operation of an institution is a relevant consideration in an

Article 12 application. [42] [ 81 ] Below, I provide my reasons for concluding that Canada remained sufficiently involved in the delivery of education in the Northwest Territories at the relevant time to support a finding of joint operation of Kivalliq Hall. I then provide my reasons for concluding that Canada’s involvement in financing the construction and operation of Kivalliq Hall point to the same result. [ 82 ] While, on balance, the indicators enumerated in

Section 12.01(3) support a finding that Canada was not jointly responsible for the operation of Kivalliq Hall, I do not find that they are sufficient to overcome the evidence concerning “the totality of the relationship between Canada and the institution in question” that lead to the opposite conclusion. B.ii.1 Canada’s continuing involvement in NWT education-related matters [ 83 ] It is trite to say that the GNWT and the Government of Nunavut do not enjoy the same sovereign authority given to the provinces under The Constitution Act, 1867 [43] .

A great deal of the parties’ focus in this application has been on the process of devolution of powers from Canada to the Northwest Territories and the establishment of full territorial responsible government. Both parties submit this is central to assessing whether Canada was jointly responsible for the operation Kivalliq Hall . [ 84 ] The applicants argue that despite the constitutional changes that took place between 1970 and 1984, the GNWT remained financially dependent on Canada throughout the 1980s because the majority of its funding came from Canada.

In addition, in the late 1970s and early 1980s, DIAND created capital programs designed to fund projects in relation to health, safety, and education in the NWT that were managed by the CMP . The CMP reviewed project proposals and liaised with the Treasury Board . It also worked with the GNWT Financial Management Board to arrange funding approval of large expenditures, including the construction and operation of Kivalliq Hall . [ 85 ] Canada relies primarily on NTI (NUCJ) , FFT , Morin, and PSAC, to argue that by 1984, the GNWT had evolved into a separate government that was independent of Canada.

Although Canada was the source of the funding for the construction of Kivalliq Hall , the money flowed through the GNWT and the GNWT administered the expenditure of the money because it was solely responsible for the decisions about the management of Kivalliq Hall . [ 86 ] While, as explained above, I find that the decisions in these four cases are not admissible as evidence of the facts on which they are based, even if I were to consider them, they do not preclude me from finding Canada was jointly responsible for the operation of Kivalliq Hall .

The evidence before me on this application satisfies me that during the relevant period, the funding of the GNWT by Canada and the project of devolution between them was still evolving. Canada remained involved in education-related matters in the Northwest Territories by virtue of at least two important considerations.

[ 87 ] The first is the continuing role of the Commissioner in the governance of the Northwest Territories. The office of the Commissioner was established by s. 3(1) of the federal Northwest Territories Act [44] . That

section described the Commissioner as the “chief executive officer” of the Northwest Territories. It also provided for Canada’s Governor in Council to appoint the Commissioner.

The Act directed that “[t]he Commissioner shall administer the government of the Territories under instructions from time to time given by the Governor in Council or the Minister [responsible for DIAND ]”. [45] [ 88 ] Until 1975, “the federally-appointed Commissioner of the Northwest Territories was the Speaker, Premier, and Lieutenant Governor all rolled into one.” [46] It is clear that after this point, the powers of the Commissioner decreased.

However, at the time of the construction and operation of Kivalliq Hall , he maintained important authority. [ 89 ] At that time, the Northwest Territories had established its own Ministry of Education overseen by an elected representative. However, pursuant to An Ordinance Respecting Education in the Northwest Territories [the Education Ordinance] enacted in 1977 by the Commissioner (by and with the advice and consent of the Executive Council ), the Commissioner was given certain continuing powers concerning education.

The Education Ordinance provided that an “Executive Member” – a member of the Executive Committee of the GNWT – would be assigned the responsibility for education matters. [47] But it also stated that “[t]he Commissioner is responsible and may exercise any or all of the powers herein given to the Executive Member.” [48] The Education Ordinance also gave the Commissioner the power to “make regulations for carrying the purposes and provisions of this Ordinance into effect.” [49] [ 90 ] The Education Ordinance , read in whole, grants considerable powers to the Executive Member to oversee the delivery of education in the Northwest Territories .

Canada encourages me to give little weight to the authority continuing to rest with the Commissioner, submitting that this authority must be considered in its context. However, in my view, read in context, the Education Ordinance is clear that the Commissioner maintained “responsibility for the administration of the Ordinance” and the ability to make regulations under it. These are not insignificant powers and responsibilities.

I find that the powers given to the federally-appointed Commissioner under the Education Ordinance demonstrate his – and, in turn, Canada’s – continued involvement in education-related affairs of the Northwest Territories at the time Kivalliq Hall was constructed and began to operate. [ 91 ] It is also evident on this record that in the lead-up to this time, the Commissioner’s authority remained such that the NWT’s Financial Management Board needed to receive the Commissioner’s approval prior to the Minister of Education taking certain actions.

For example, in an FMB Recommendation document dated April 17, 1984, and addressed to the Commissioner, the FMB states it has “reviewed the M.S.S.D. submission re: the Special Committee on Education report and recommends approval for the submission to be forwarded to D.I.A.N.D.” [50] It further states, “[s]hould your approval be granted, the Hon. D.

Patterson [then-Minister of Education for the NWT] will initiate the required action to implement this decision.” [51] [ 92 ] Further examples of the FMB – and even the Executive Council –seeking the Commissioner’s approval prior to Ministerial action on education-related matters are described below in the context of the GNWT requesting federal funding for Kivalliq Hall . [ 93 ] This specific involvement in decision-making concerning education in the Northwest Territories is consistent with the Commissioner’s continuing role in the governance of the Territories more generally during the time period relevant to this application. [ 94 ] Though Canada submits that full devolution had occurred by 1984, the record before me does not support this.

From 1983-1985, NWT Commissioner John H.

Parker continued to submit Annual Reports of the Government of the Northwest Territories to the federal Minister responsible for DIAND . [52] Each Report makes reference to “progress in the evolution towards responsible government”, [53] continued “[p]olitical evolution and development”, [54] and continued “progressive political evolution.” [55] I find these comments to be indicative of the then-ongoing – not completed – journey toward responsible government and devolution of powers from Canada to the GNWT. [ 95 ] The Commissioner’s 1985 Report indicates that he continued to chair the Executive Council (the cabinet of the GNWT) and was directly responsible for the Department of Personnel , the department responsible for the planning and coordination of personnel management within the public service of the GNWT. [56] The Commissioner was scheduled to relinquish both of these positions in 1986.

In the 1985 Report , the Government Leader, the Honourable Nick Sibbeston, described the transfer of responsibility over the Department as “the transfer of the last major administrative duty of the Commissioner to an Executive Council member.” [57] This, he wrote, marked a “major step” in the development of responsible government for the GNWT, which was engaged in continued discussions on “the transfer of responsibilities from the Federal to the Territorial Government.” [58] This stood in contrast to Mr.

Sibbeston’s further statement that the government of the Northwest Territories is “now fully in the hands of…elected representatives.” [59] [ 96 ] The description of the “Devolution Office” in the 1985 Report and the assertion included therein that “[t]he Territorial Government is pursuing devolution at this time” fortify my conclusion that devolution had not yet occurred at the time Kivalliq Hall began its operations. [60] [ 97 ] Based on these Reports , I find that through at least 1985: (1) the federally-appointed Commissioner maintained at least some power and authority over the governance of the Northwest Territories, and (2) the project of devolution and attaining responsible government was ongoing.

[ 98 ] Canada points to an

article included as an exhibit to Mr. Russell’s Affidavit as proof that the Territorial Government assumed total control of NWT education on April 1, 1970. [61] That

article does include a statement to this effect, as well as a statement attributed to B.C. Gillie, former NWT Director of Education, that he was responsible for the day-to-day operation of the Department of Education . However, Mr. Gillie is also quoted as saying that “policy decisions of any long-range or far-reaching significance were all subject to the approval of the Executive, consisting of the Commissioner, the Deputy Commissioner and the Assistant Commissioner.” [62] It is not clear up until what time this remained the case. However, that the Commissioner appeared to retain this power after the point at which the

article asserts the “Territorial Government assume[d] total control of NWT education” [63] undermines the veracity of Canada’s submission on this point. [ 99 ] On the whole, I find that the evidence canvassed above – particularly the Education Ordinance and the FMB recommendations to the Commissioner – indicates that the federally-appointed Commissioner maintained authority in relation to the delivery of education in the Northwest Territories .

This particular federal influence in Territorial governance is an indicator of joint responsibility for the operation of Kivalliq Hall . [ 100 ] The second important consideration indicating Canada’s continued involvement in education-related matters in the Northwest Territories is the Territories’ continuing financial dependence on Canada. [ 101 ] The Commissioner’s Reports from 1983-1985 shed light on this issue as well.

For example, each of the reports contains financial statements of the GNWT examined by the Auditor General of Canada (or the Deputy Auditor General) and approved by the Commissioner, the Comptroller General and the Deputy Minister of Finance.

As the Reports detail, these statements were prepared in accordance with federal legislation – specifically, the Act . [64] These statements reveal that, pursuant to the Financial Agreement between Canada and the NWT, capital and operating grants from Canada constituted close to 70% of the GNWT’s revenues in 1984 and 1985. [65] [ 102 ] Further, the 1985 Report reveals that one of the key responsibilities of the NWT Audit Bureau was “the performance of attest audits of Government of the NWT financial claims and costs reports, prior to their submission to the federal government .” [66] (emphasis added).

The court in Stirland Lake considered the auditing powers of Canada with respect to a particular institution to be “noteworthy”. [67] Though I do not have evidence before me of Canada’s ongoing audit powers – if any – with respect to Kivalliq Hall specifically, it is significant, in my view, that Canada exercised such auditing powers at the relevant time with respect to the finances of the entire GNWT.

I acknowledge, parenthetically, that it continues to do so. [68] This audit power, combined with, among other things, the approval powers attributed to the Treasury Board concerning Kivalliq Hall (discussed below), points toward joint operation of that institution. [ 103 ] A federal Treasury Board internal memorandum concerning Kivalliq Hall sheds further light on the financial relationship between the GNWT and Canada.

It states that as of 1984, “operating and capital grants paid to the GNWT are established annually based on the territories’ gross expenditure frameworks which are reduced by the amount of territorial revenues and recoveries.” [69] Treasury Board approved reference levels, though it was not involved in setting policies or priorities concerning items of territorial jurisdiction, such as education. [70] Treasury Board approval was required for all projects over $2.5 million.

This was despite Cabinet’s formal support, expressed in November 1982, for progress “toward territorial responsible government (albeit not provincial status).” [ 104 ] The same Treasury Board document further states that “[r]equests for resources are reviewed giving consideration to federal budget flexibility and policies … as they relate to Canadians as citizens of a province or territory.” (emphasis added).

The Treasury Board specifically noted the following: The requirement to obtain Treasury Board approval for projects is particularly irritating to the territorial governments (TGs) and is seen by them as being at odds with their political evolvement.

It also places TB Ministers in the position of appearing to assess policies and priorities in areas of territorial jurisdiction such as the submission for project approval for a school residence. [ 105 ] The considerations recounted in this Treasury Board memorandum demonstrate the extent to which the Northwest Territories continued to be financially reliant on Canada at the time it sought its approval for Kivalliq Hall funding.

It also suggests that resource funding was, at least in part, dependent on the Treasury Board’s assessment of a request in light of federal – not just territorial – policies. [ 106 ] The extent to which the GNWT was dependant on federal decision-making and the impact this had on local territorial communities is also evidenced by a letter from Brian W.

Lewis, NWT Deputy Minister of Education, to the executive assistant to the Minister responsible for DIAND expressing an urgent requirement for Treasury Board approval of Kivalliq Hall . [71] [ 107 ] Overall, the evidence demonstrates the GNWT was significantly dependent on funding from Canada at the time of the construction and operation of Kivalliq Hall – at least through 1985. [ 108 ] In sum, while I am unable on this record to determine when full devolution occurred, I am not required to make such a determination for the purposes of this proceeding.

Rather, I need only consider the extent of Canada’s involvement in and influence over education-related matters in the Northwest Territories at the material time.

[ 109 ] On the evidence before me, I find that Canada remained sufficiently involved in the delivery of education in the Northwest Territories – notably through the Commissioner and Canada’s funding of GNWT’s operations – at the time of Kivalliq Hall’s construction and operation to favour a conclusion that Canada was jointly responsible for the operation of the institution and the care of the children there. B.ii.2 Canada’s decisional and financial involvement in Kivalliq Hall [ 110 ] Courts have considered Canada’s contribution of funding to an institution to be a relevant consideration in assessing an

Article 12 application. [72] [ 111 ] In this case, the NWT Commissioner signed off on a decision to have the NWT’s Department of Education submit a proposal to Canada to fund the construction and operation of Kivalliq Hall . This submission was also recommended by the NWT Executive Council and the NWT Financial Management Board . Canada approved the proposal and the resulting allocation of federal money to fund the proposal. This series of decisions and allocations of funds support a finding of joint responsibility within the meaning of

Section 12.01(2).

It also reinforces the extent to which Canada remained involved in the delivery of education in the Northwest Territories during the time period at issue in this application. [ 112 ] All parties in this proceeding accept that population growth in the NWT led to overcrowding of Akaitcho Hall in Yellowknife, NWT, and Ukkivik Residence in Frobisher Bay, NWT, the two main regional centres to which NWT students were sent to attend high school in the early 1980s. [ 113 ] The evidence shows that on November 8, 1983, the Executive Council of the GNWT sent a Record of Recommendation to Commissioner John Parker for the funding of a new school and residence – Kivalliq Hall .

The Record of Recommendation included the following: “Should your approval be granted, the Honourable Dennis Patterson and the Honourable George Braden will initiate applicable action to implement these decisions.” [73] At the hearing of this application, the applicants submitted – and I agree – that it is significant that Kivalliq Hall could not have been constructed without the approval of the Commissioner, who was an appointee of Canada. [ 114 ] The Financial Management Board reviewed and critiqued the Department of Education’s request for approval “to transmit a $6,331,000 Treasury Board submission to D.I.A.N.D., for capital and operating costs associated with constructing and operating” Kivalliq Hall in a report signed on April 18, 1984. [74] The Financial Management Secretariat noted that “the current submission does not address the need for the facility and would likely meet with Federal opposition if presented as is.” [75] [ 115 ] The Financial Management Board , in a Board Recommendation document dated April 17, 1984, sought the Commissioner’s approval to, among other things, forward the Treasury Board submission to Ottawa as is, due to the urgency of the item.

The document stipulates, “[s]hould your approval be granted, the Honourable D.

Patterson [then-Minister of Education] will initiate the required action to implement this decision.” [76] [ 116 ] The Treasury Board submission prepared by the NWT Department of Education itself requested “Transfer payments to the Government of the Northwest Territories” for a forty-bed residence in Rankin Inlet covering “the estimated capital cost of Phase I hostel and housing” and operations and maintenance costs for “four teachers, fourteen hostel staff [including supervisors, custodians, a chef and two kitchen helpers] and operating funds.” [77] In other words, the submission requested funding not just for construction of the residence, but for its ongoing operation. [ 117 ] By letter dated April 24, 1984, Dennis Patterson, NWT Minister of Education , transmitted the Kivalliq Hall proposal to the Honourable John C.

Munro, Minister responsible for DIAND , with Minister Patterson requesting the Treasury Board’s approval regarding the project’s funding. [78] [ 118 ] A Treasury Board document dated May 3, 1984, shows that the Kivalliq Hall proposal was submitted by “Indian & Northern Affairs Canada” – not the GNWT – and sought funds “chargeable to…Northern Affairs – Transfer payments to the Government of the Northwest Territories.” [79] [ 119 ] The internal Treasury Board memorandum concerning Kivalliq Hall affirms that “TB approval is required for all [territorial] projects over $2.5M” and that the capital and operating costs “are to be financed from within existing reference levels.” [80] As noted above, this request was reviewed “giving consideration to federal budget flexibility and policies (explicit or otherwise) as they relate to Canadians as citizens of a province or territory.” [81] [ 120 ] On June 7, 1984, the Treasury Board approved funding for Kivalliq Hall .

It sent its decision to DIAND approving “your Minister’s submission” regarding the project “for the construction of a student residence and teacherage [sic] at Rankin Inlet, NWT by the

Government of the Northwest Territories”. [82] The Treasury Board noted that the submission did not include a capital plan. [83] It further stated that it “agreed to increase the project authority for the territorial governments to $5,000,000 in consideration of the capital management documents that the territorial governments have provided, subject to the concurrence by the Minister of Indian Affairs and Northern Development. ” (emphasis added). [84] I note that the Treasury Board did not send this decision directly to the NWT’s Minister of Education or to the Commissioner. [ 121 ] As a result of this process, the federal government funded all costs for the construction of Kivalliq Hall , units for teachers and staff, salaries for teachers and staff, and operational costs. [85] Again, at the hearing of this application, the applicants submitted – and I accept – that it is significant that the consent of the Commissioner, DIAND , and the Treasury Board was required for funding the construction and operation of Kivalliq Hall. [ 122 ] I find that in these circumstances, the process for approval and allocation of funds from Canada to the construction and operation of Kivalliq Hall is an indicator that Canada was jointly responsible for the operation of Kivalliq Hall and the care of the children resident therein.

I reach this conclusion having regard for the Alberta courts’ decisions in Moosehorn . There, even though Canada had contributed to capital and operating costs, this was not sufficient to ground a finding of joint operation. [86] I note, however, that in Moosehorn , Canada provided 35%, rather than 100%, of the capital cost of the residence’s construction, which was directly proportionate to the expected number of Aboriginal residents.

The court rejected the submission that this contribution went beyond financial support for individual Indian students and should be understood as a financial contribution to the institution as a whole. [ 123 ] I find that Moosehorn is distinguishable from the present application on the basis of Canada’s relatively greater contribution to the capital and operating costs of Kivalliq Hall , and the extent to which Canada was involved in the decision-making concerning the allocation of those funds.

I further note that Kivalliq Hall was built for the sole purpose of educating Indigenous – in this case, Inuit – children. In the present context, Canada’s involvement in Kivalliq Hall can be better understood as a financial contribution to the institution as a whole, which, in my view, supports a finding that Canada was jointly responsible for the operation of Kivalliq Hall . It follows that I reject Canada’s characterization of Kivalliq Hall as strictly “a territorially owned and operated residence ”. B.ii.3 Factors enumerated in

Section 12.01(3) [ 124 ] In addition to the issues explored above, it is relevant to consider whether the indicators enumerated in

Section 12.01(3) support a finding that Kivalliq Hall was jointly operated by Canada. [ 125 ] The first factor is whether Kivalliq Hall was federally-owned. The applicants ask this Court to infer that Kivalliq Hall was federally-owned because it was built on Crown land. Canada submits that the evidence points to Kivalliq Hall being owned by the NWT. [ 126 ] In the absence of evidence on this point, I am not prepared to infer that Kivalliq Hall was federally-owned simply because it was built on Crown land.

Such an inference would de facto lead to the conclusion that the majority of buildings located in present day Nunavut are federally-owned for precisely the same reason, which, in my view, is illogical. [ 127 ] The second indicator is whether Canada stood as the parent to the child. At the hearing of this application, the applicants asserted that this indicator favoured a finding of joint control because Canada had the same powers and responsibility as the territory.

Canada submits that the GNWT or one if its departments was responsible for, among other things, setting policies and enforcing rules and regulations with regard to Kivalliq Hall, staffing, monitoring, training, contracting and setting policies for Kivalliq Hall and its residents,communicating with parents of residents, and registering and orienting students residing at Kivalliq Hall . [87] [ 128 ] I do not find that Canada had the same powers and responsibility as the territory with respect to Kivalliq Hall .

While, as explained above, I accept that Canada’s administrative and financial involvement in NWT education generally and Kivalliq Hall specifically point toward joint control, based on the evidence before me, I cannot go so far as to say that Canada stood as a parent to the children residing at Kivalliq Hall . [ 129 ] The third indicator is that Canada was at least partially responsible for the administration of the institution.

The applicants submit that evidence of this includes that a gym teacher and one of the nurses resident in Kivalliq Hall were paid by Canada as late as 1992, as well as that the Department of Personnel was run by the Commissioner who was responsible for the construction, maintenance, and operation of Kivalliq Hall .

Canada, on the other hand, submits that its involvement in the institution was limited to providing funding in accordance with the GNWT’s initial proposal and that the evidence also suggests that the GNWT was primarily responsible for the day- to-day administration of Kivalliq Hall . [ 130 ] There is little evidence before me to suggest that Canada was involved in the day-to-day operations of Kivalliq Hall .

Rather, I acknowledge and accept Canada’s submissions at paragraph 67 of its Pre-Trial Brief that the GNWT or one of its departments – not Canada directly – was responsible for many ongoing matters such as setting policies about Kivalliq Hall , monitoring residents, maintaining discipline, and communicating with residents’ parents. [ 131 ] Nonetheless, for the reasons that I have outlined above, I find that Canada was at least partially responsible for the administration of Kivalliq Hall, primarily through its continued involvement in the delivery of education to the residents of the Northwest Territories

and its financial contribution to the construction and operation of the institution – notably by way of funding the salaries of many of the staff of Kivalliq Hall . [ 132 ] The fourth indicator is that Canada inspected or had a right to inspect Kivalliq Hall . The applicants do not allege that Canada had the right to inspect Kivalliq Hall . This factor favours a finding that Canada was not jointly responsible for the operation of Kivalliq Hall . [ 133 ] The fifth and final indicator is whether Canada did or did not stipulate Kivalliq Hall as an IRS .

Canada has not done so, which favours finding that Canada did not have joint responsibility for Kivalliq Hall’s operation. I attach little weight to this consideration for the reason that if Canada had stipulated an institution as an IRS , an

Article 12 application would generally be unnecessary. [ 134 ] I acknowledge that the balance of enumerated factors in

Section 12.01(3) favour finding that Canada was not jointly responsible for Kivalliq Hall . However, as the Alberta Court of Queen’s Bench stated in Moosehead Lodge at para 12, an

Article 12 application “calls for an examination of the totality of the relationship between Canada and the institution in question…The weight to be assigned to any particular indicator will necessarily be dictated by the circumstances of the institution in question.” [ 135 ] The circumstances of Kivalliq Hall make it unique among

Article 12 applications. Its construction and operations were funded entirely by Canada following an intensive approval process. This occurred in the context of the NWT being heavily financially dependent on Canada and Canada continuing to exercise influence in the NWT’s governance, including with respect to education-related matters. I attach significant weight to these non-enumerated considerations.

I am satisfied that the evidence before me establishes that Canada was jointly responsible for the operation of Kivalliq Hall and the care of the children resident there. [ 136 ] Reaching this conclusion does not require rewriting the terms of the IRSSA . While Canada did not stipulate Kivalliq Hall as an IRS , the parties provided for a means of adding institutions to

Schedule “F”, and that is precisely what this application was about. VII. CONCLUSION [ 137 ] For the reasons set out above, I conclude that the applicants have demonstrated on a balance of probabilities that Kivalliq Hall meets the test set out in

Article 12 of the IRSSA , namely that:

a) Mr. Mikkungwak was placed in a residence away from his family home by or under the authority of Canada for the purpose of education; and

b) Canada was jointly responsible for the operation of Kivalliq Hall and the care of the children resident there. [ 138 ] As such, I find that Kivalliq Hall should be added to

Schedule “F” of the IRSSA . [ 139 ] Given my conclusion that Kivalliq Hall should be added to

Schedule “F” of the IRSSA , the parties will be invited to make written submissions as to whether and for how long to extend the deadlines for filing CEP and IAP applications. T he parties’ counsel are directed to contact Court Counsel in order that a timeline for exchange and filing of those submissions can be established. Dated at the City of Iqaluit this 14th day of December, 2016 ___________________ Justice B. Tulloch Nunavut Court of Justice