GATINEAU, Que.—The Canadian legal framework is not equipped to adequately protect unmarked burials of Indigenous children who died while forcibly attending residential schools, and the associated investigations, says the Independent Special Interlocutor of Missing Children and Unmarked Graves and Burials.
The Office of the Independent Special Interlocutor released its final report Tuesday, calling on Canada to implement its 42 obligations for “truth, accountability, justice and reconciliation” that must be carried out through a new Indigenous-led reparations framework to support the search for and recovery of the missing children.
“The greatest and most important obligation that we all have is to the survivors,” Special Interlocutor Kimberly Murray said Tuesday while delivering the report to Justice Minister Arif Virani in Gatineau, Que.
“They must be honoured and acknowledged for their courage, determination and advocacy to raise public awareness about the truths of unmarked burials of children.”
The final report comes after two years of national gatherings with Indigenous communities, leaders and residential school survivors on the issue of unmarked burials, and builds upon two previous reports, a progress update report in November 2022 and an interim report in June 2023.
It includes an executive summary with case studies providing “concrete examples of existing legal, policy and research barriers” faced by Indigenous communities searching for unmarked burials.
The framework proposed is a “holistic approach to reparations,” through its 42 “sacred obligations” that arise from the United Nations Declaration on the Rights of Indigenous Peoples, Indigenous laws, international human rights law and Canadian constitutional law.
The report says the obligations identify the “legal, moral and ethical obligations that governments, churches and other institutions have to support Indigenous-led search and recovery work.”
The obligations include “long-term, sufficient, flexible funding” for Indigenous-led investigations into unmarked burials; acknowledgment by Canada that the enforced disappearance of Indigenous children is “a crime against humanity”; and support for Indigenous data sovereignty and the protection of residential school records.
They also require an apology by all levels of government, churches, the RCMP, universities “and any other organizations that supported and/or operated Indian Residential Schools … for the multiple harms they committed against the missing and disappeared Indigenous children, their families and communities.”
The obligations also ask Canada to make residential school denialism illegal by amending the Online Harms Act and Criminal Code to make it an legal offence “to wilfully promote hatred against Indigenous Peoples by condoning, denying, downplaying, or justifying the Indian Residential School System or by misrepresenting facts relating to” residential schools.
Virani, who was appointed justice minister in July 2023, said he’s learned a lot about the importance of correcting past injustices.
“When I was in that room, I’ll be frank with you and say I was also reacting as a parent,” he said. “You can’t hear stories about children being, about people being abused, young girls being impregnated, and then their babies being taken away and incinerated, and not have a response.
“That’s difficult to handle, but that’s the kind of work that needs to be looked at and we need to be responding to.”
In response to the obligation to amend the criminal code to include residential school denialism, Virani said it was one of the 42 obligations in the report and that he plans to “do right by the work that’s been committed over these past two-plus years, by Ms. Murray and by those elders and those survivors, and review this material thoroughly.”
There is also a private member’s bill on the subject currently proposed by NDP member of Parliament Leah Gazan.
When asked when survivors could expect a response from the federal government on the report, Virani said “I will do my best to do it as promptly as possible, but it is voluminous.”
Murray was appointed to the position with a two-year mandate by then Justice Minister David Lametti in June 2022 after the discovery of 215 potential unmarked graves at the site of former Kamloops Indian Residential School in Tkemlúps te Secwépemc in May 2021.
Murray’s mandate was to “ensure that the First Nations, Inuit and Métis children whose graves and burial sites are now being recovered are recognized and treated with honour, respect and dignity.” Her mandate was extended for an additional six months in June.
It included all burials of children who died while at Indian residential schools across Canada, as well as those who were transferred and died at other institutions including hospitals, tuberculosis sanatoriums, industrial or training schools and reformatories and mental health institutions.
The Indian Residential Schools Crisis Line is available 24 hours a day for anyone experiencing pain or distress as a result of a residential school experience. Support is available at 1-866-925-4419.
