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But in his comments, Harrington points out that the government has retained almost all of its original defences, including that the church organizations that ran the schools are liable for harm done by nuns and priests. The judge argued that compiling evidence about the hundreds of religious groups involved in running the schools would take years.

“The plaintiffs are dying,” he said. “Is it (the Crown’s) intention to grind these 105 bands into poverty and bankruptcy before this matter ever proceeds to trial?”

Many of the day students have died since the lawsuit was launched in 2012. In a recent affidavit, Jo-Anne Gottfriedson, chair of an executive committee for the plaintiffs, estimated that in 2012 there were 122 surviving day students from her First Nation, Tk’emlúps te Secwepemc. By 2019, more than 30 had died, including her sister, Violet Gottfriedson.

“If the Crown sticks to all of the defences it asserts, this matter will not get to trial for years,” Harrington wrote. “When it finally does, that trial will last months and will literally cost the plaintiffs millions.”

Phillips said the new defence is much like the original filing, but with “lipstick on it.” He believes Wilson-Raybould’s directive could be an important shift in Aboriginal litigation, but expressed some doubt that it will be taken seriously. “The most powerful Aboriginal minister we’ve had is no longer in the House,” he said, referring to Wilson-Raybould’s resignation from cabinet and subsequent ouster from the Liberal caucus. (She remains in the House of Commons as an independent MP.)