Kivalliq Hall doesn't qualify as a residential school, Canada argues in Nunavut appeal court

The federal government of Canada is appealing a 2016 decision by a Nunavut judge that classed Kivalliq Hall, a residence for students in Rankin Inlet, as a residential school under the Indian Residential School Settlement Agreement.

Canada says territorial government was responsible for the school, not Canada

Judges of the Nunavut Court of Appeal heard arguments on Tuesday in Iqaluit.

The federal government is appealing a 2016 decision by a Nunavut judge that classifies Kivalliq Hall, a residence for students in Rankin Inlet, as a residential school under the 2007 Indian Residential Schools Settlement Agreement.

Per that decision, students who were boarded at Kivalliq Hall during its 10 years of operation are allowed to claim compensation from the federal government under the agreement. The hall's hostel operated from 1985 to 1995.

Tuesday in the Nunavut Court of Appeal, Crown lawyer Cynthia Dickins argued Canada is not responsible for the hostel's operations or the children who stayed there, so it does not meet the criteria necessary to be included under the residential schools settlement agreement.

To add an institution to the recognized list of residential schools, the agreement says the school must meet both criteria laid out in Article 12 of the agreement, the first of which says the child must have been placed there "by or under the authority of Canada" and the second requires Canada have been "jointly or solely responsible for the operation of the residence and care of the children."

Dickins argued the territorial government—not Canada—was responsible for this residence, based on the fact that Canada ceded responsibility for education in the territory (then part of the Northwest Territories) to the government of the N.W.T. in 1970.

However, lawyers for Nunavut Tunngavik Inc., representing the students housed at Kivalliq Hall, argued that although officially Canada had handed over control, it still played a role of responsibility in territorial government administration — and therefore the residence.

Federal funding

Historical documents show the federal Treasury Board signing off on $5 million to build the 40-bed residence and the commissioner of the N.W.T. — who was an appointee of Canada — had sign-off approval on decisions made by the Department of Education.

Dickins argued the commissioner played a largely ceremonial role, like lieutenant governors — his provincial counterparts — and says while capital costs were federally funded, operating costs were most likely financed by federal transfer payments, which are parsed out based on the territory's discretion.

She said the lower court judge, Justice Bonnie Tulloch, got bogged down by the interconnectedness of the federal and territorial governments at the time, instead of considering how far removed the federal government actually was from operating the residence.

Baker Lake MLA Simeon Mikkungwak was an initiator of the legal action. He lived at the residence between 1985 and 1989 (Sima Sahar Zerehi/CBC)

The focus on funding is in part how Tulloch came to accept Canada's role in the operation of the residence, though there is no documentation explicitly stating federal involvement.

Raymond Murray, a lawyer for Nunavut Tunngavik Inc., argued the lack of documentation indicates how closely the two entities were operating, especially during the timeframe in which one of the students and an initiator of the legal action, Simeon Mikkungwak, attended.

Mikkungwak, the MLA for Baker Lake, lived at the residence between 1985 and 1989.

During his testimony in the lower court, he said he did not remember who directed he attend Kivalliq Hall, but he did say he was supposed to attend Akaitcho Hall in Yellowknife, which is recognized by the settlement agreement.

Murray argued Tulloch made an inference, based on the fact Mikkungwak was supposed to attend Akaitcho Hall and instead attended Kivalliq Hall, that Canada had a say in where he went.

Added for specific years?

Documents from 1989 on to 1995 show students were placed in the Kivalliq Hall by their parents, social services and the territory's government—none demonstrate Canada's involvement.

While Dickins argued this precluded the residence from eligibility, Murray said there is precedence for including a residence for specific years. In this instance, the years which Mikkungwak attended, in which there is no evidence for either Canada or the territory placing students.

The three judges who heard the arguments will release their decision at a later date.