Independent report details 48 findings about challenges of searches for unmarked graves

Warning: This story contains distressing content.

Issues around access and preservation of residential school records and former sites, Indigenous data sovereignty and denialism are among 48 findings detailed in a new report from Canada's independent special interlocutor about the search for unmarked graves over the past year.

The report also makes recommendations for a new federal legal framework to protect unmarked burial sites.

"We must protect the truth," said Kimberly Murray, the independent special interlocutor.

Murray was appointed to the role 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 burial sites, and liaise with the appropriate powers to address those challenges.

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

Murray publicly presented the report Friday morning at Cowessess First Nation, located 150 kilometres east of Regina. In 2021, the First Nation announced it had found 751 potential unmarked graves at the site of the former Marieval Indian Residential School.

The 179-page report identifies 12 common concerns raised by residential school survivors, Indigenous families and communities as they search for unmarked graves and missing children:

• Access to and destruction of records.
• Access to and protection of sites.
• Complexity and timeline of ground searches.
• Shortcomings of existing investigation processes.
• Affirming Indigenous data sovereignty.
• Challenges of responding to media and public disclosures.
• Increase in the violence of denialism.
• Lack of sufficient long-term funding.
• The need for Indigenous health and wellness supports.
• Repatriation of the children.
• Repatriation of cemeteries and burial sites.
• Accountability and justice.

The 48 findings stem from these concerns.

One pressing issue is the access to and upcoming destruction of residential school records.

Accessing records held by the various levels of government and different churches — including institutions overseas — is a challenge due to a lack of transparency on how to gain access to them, freedom of information policies and processes, delays and cost, among other issues, the report says.

Many records are incomplete, in part because the federal government systemically purged residential school records from its files from 1936 to 1954, the report adds.

There is also a deadline for some record gathering, the report says. The Supreme Court of Canada had ordered the destruction of the confidential records of survivor's applications and testimonies 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.

Those records are slated to be destroyed on Sept. 19, 2027, unless survivors opt to preserve them for historical, educational or research purposes, the report says.

"I am very concerned about the important truths that will be lost when the IAP records and testimonies of survivors are destroyed," Murray said.

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

Denialism strictly a non-Indigenous problem: report

A faction of Canadians denies that the atrocities at residential schools ever happened, particularly since announcements of potential unmarked graves started being made in 2021.

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

"Denialism is violence. Denialism is calculated. Denialism is harmful. Denialism is hate," Murray said.

"Denialism is a non-Indigenous problem and therefore it's for non-Indigenous people to address it."

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

It also calls for the "urgent consideration" for legal mechanisms to address denialism in both civil and criminal law.

Section 319 of the Criminal Code of Canada, for example, states someone is wilfully promoting antisemitism if they publicly condone, deny or downplay the Holocaust. If convicted, they are either guilty of an indictable offence and liable to up to two years in prison, or of an offence punishable on summary conviction, the law says.

Murray accentuated that the Canada government and churches must be leaders in those efforts.

"They must stop being bystanders to the hate and they must counter these attacks," she said.

"Canada has the truth. They have the evidence.… It is on their shoulders."

Federal Justice Minister David Lametti, who attended the event virtually from Ottawa, told reporters he's "open to all possibilities" when it comes to addressing denialism.

"I just simply can't imagine the devastating impact that it would have on a survivor, or on a family, or a community that has seen this directly," Lametti said. "I pledge to do my best here."

Comprehensive Indigenous-led legal framework needed: report

Another part of Murray's mandate is to research promising practices, gaps and barriers in Canada's legal framework to find ways to improve protections under Canadian law, and create a new legal framework to protect unmarked burial sites and support the recovery of missing children.

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 detailed eight limitations in Canada's legal framework, such as complex privacy and access to information laws that impede access to records, no legal protections for sites until remains are found and gaps in legal protections for Indigenous burial sites — even if unmarked graves are found.

The current system is also "ill-equipped to provide accountability and justice the missing children, Survivors, and their families," the report says.

Only amending current legislation would be too narrow and "utterly inadequate" for a new legal framework, the report says.

A more comprehensive approach, which builds on work done by the National Truth and Reconciliation Commission and examines the question of reparations, is required, the report says. A new legal framework would also have to affirm and uphold Indigenous legal jurisdiction and sovereignty.

Read the full report:

A national Indian Residential School Crisis Line is available to provide support for 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 counselling 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 by online chat.