Independent report describes 48 findings on the challenges of searching for unmarked graves

Warning: This story contains disturbing content.

Issues surrounding access to and preservation of records from residential schools and former sites, Indigenous data sovereignty and denial are among the 48 findings detailed in a new report from Canada’s independent special interlocutor on the search for unmarked graves in the past year.

The report also recommends a new federal legal framework to protect unmarked cemeteries.

“We have to protect the truth,” said Kimberly Murray, the independent special interlocutor.

Murray was appointed to the position last year. Part of her two-year mandate includes speaking with survivors, families, Indigenous governments, organizations and communities to identify barriers and concerns about unmarked graves and cemeteries and liaising with the appropriate authorities to address those challenges.

On Friday, Murray’s office released its interim report, which provided an update on her progress.

Murray presented the report publicly Friday morning at Cowessess First Nation, 90 miles east of Regina. In 2021, the First Nation announced it had found 751 potential unmarked graves on the site of the former Marieval Indian Residential School.

The 179-page report identifies 12 common concerns of residential school survivors, Indigenous families and communities when searching for unmarked graves and missing children:

• Access and destruction of documents.
• Site access and protection.
• Complexity and timeline of soil investigations.
• Shortcomings of existing research processes.
• Confirmation of Indigenous Data Sovereignty.
• Challenges in responding to media and public disclosures.
• Increase in the violence of denial.
• Lack of sufficient long-term financing.
• Supports the need for Indigenous health and wellness.
• Repatriation of the children.
• Repatriation of cemeteries and cemeteries.
• Accountability and justice.

The 48 findings stem from these concerns.

An urgent problem is the access to and imminent destruction of residential school records.

Accessing archives from the various levels of government and various churches – including institutions abroad – is challenging due to, among other things, a lack of transparency on how to access, freedom of information policies and processes, delays and costs. report says.

Many records are incomplete, in part because the federal government systematically removed residential school records from its files between 1936 and 1954, the report adds.

There is also a deadline for collecting records, the report says. Canada’s Supreme Court had ordered the destruction of the confidential files of survivors’ applications and testimony from the Independent Assessment Process (IAP) – an out-of-court process to resolve claims of abuse at residential schools through the Indian Residential Schools Settlement Agreement.

That data will be destroyed on Sept. 19, 2027, unless survivors choose to keep it for historical, educational or research purposes, the report said.

“I am deeply concerned about the important truths that will be lost when the IAP records and survivor testimonies are destroyed,” Murray said.

She called for an independent, external review of the records for names of children who died while in residential schools, and for any information about their deaths and burials.

Denial strictly a non-Indigenous problem: report

A group of Canadians deny that the residential school atrocities ever happened, especially since announcements of possible unmarked graves were made in 2021.

The report, citing international experts, calls denial the last step in genocide.

“Denial is violence. Denial is calculated. Denial is harmful. Denial is hatred,” Murray said.

“Denial is a non-Indigenous problem and so it’s up to non-Indigenous people to address it.”

The report calls for a broad public support campaign, the basis of which should be public education about the history and continuing legacy of the residential school system.

It also calls for “urgent consideration” for legal mechanisms to address denial in both civil and criminal law.

Section 319 of the Criminal Code of Canadastates, for example, that someone is deliberately promoting anti-Semitism if he or she publicly endorses, denies, or trivializes the Holocaust. If convicted, they are either guilty of a felony and could face up to two years in prison, or a misdemeanor punishable by summary conviction, the law says.

Murray stressed that the Canadian government and churches must be leaders in those efforts.

“They must stop being spectators to the hate and they must counter these attacks,” she said.

“Canada has the truth. They have the evidence… It’s on their shoulders.”

Federal Attorney General David Lametti, who attended the event virtually from Ottawa, told reporters he is “open to all options” when it comes to tackling denial.

“I just can’t imagine the devastating impact it would have on a survivor, or on a family or a community that directly saw this,” Lametti said. “I promise to do my best here.”

Comprehensive Indigenous-led legal framework needed: report

Another part of Murray’s mandate is to examine promising practices, gaps and barriers in the Canadian legal framework to find ways to improve protections under Canadian law and create a new legal framework to protect unmarked cemeteries and facilitate the recovery of missing children to support.

The new framework should be governed by indigenous laws and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), among other relevant legal instruments.

The interim report details eight limitations in Canada’s legal framework, such as complex privacy and access to information laws that hinder access to documents, no legal protections for sites until human remains are found, and loopholes in legal protections for Indigenous cemeteries – even if unmarked graves have been found.

The current system is also “ill-equipped to provide accountability and justice to missing children, survivors and their families,” the report said.

Merely amending the current legislation would be too narrow and “completely inadequate” for a new legal framework, the report said.

According to the report, a more comprehensive approach is needed, building on the work of the National Truth and Reconciliation Commission and examining the issue of reparations. A new legal framework should also affirm and enforce Indigenous legal jurisdiction and sovereignty.

Read the full report:

A National Indian Residential School Crisis Line is available to provide assistance to survivors and those affected. People can access emotional and crisis referral services by calling the 24-hour service at 1-866-925-4419.

Mental health counseling and crisis support is also available 24 hours a day, seven days a week through the Hope for Wellness hotline at 1-855-242-3310 or through online chat.