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Flags mark the places where ground-penetrating radar recorded hits of what are believed to be 751 unmarked graves in a cemetery near the grounds of the former Marieval Indian Residential School on the Cowessess First Nation in Sask.

Mark Taylor/The Canadian Press

Ottawa should ensure that it is a crime to hide, damage or destroy unmarked graves such as those discovered at the sites of former residential schools in British Columbia and Saskatchewan, says a report from a former judge who leads the Vancouver-based Indian Residential School History and Dialogue Centre.

Mary Ellen Turpel-Lafond, a law professor and director of the centre, which is based at the University of British Columbia, also says in the report that the federal government should establish a public guardian whose office would work with First Nations and be responsible for identifying and protecting these burials – a role she argues the Truth and Reconciliation Commission was blocked from undertaking because of government underfunding.

In the meantime, the report says, the government should immediately bring in an international legal expert experienced in human-rights abuse investigations to help First Nations dealing with recent discoveries and shape Canadian legislation governing the sites and how they are addressed. That emergency advocate could determine if the Canadian Criminal Code can be used to prosecute anyone damaging these sites – including by hiding documents about the existence of burials – or whether Ottawa should draft new violations, Dr. Turpel-Lafond said in an interview.

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Marieval, Kamloops residential schools: What we know about the unmarked graves, and Canada’s reaction so far

She said the Tk’emlúps te Secwépemc and Cowessess First Nations, as well as other communities conducting their own work to identify unmarked burial sites, are overwhelmed and retraumatized right now. She said Ottawa needs to commit to this work urgently, as dozens of First Nations across the country prepare to use ground-penetrating radar to search for similar graves.

“We put this [report] out to show what are the current existing laws, what should inform a proper process and who should direct that,” said Dr. Turpel-Lafond, who is also called Aki-kwe and is a member of the Muskeg Lake Cree Nation. She was B.C.’s representative for children and youth until 2016.

“It isn’t all in the spirit of reconciliation, ‘Let’s move forward.’ It’s about accountability, so this addresses accountability, including criminal aspects.”

As an example of a death that could merit a criminal investigation under a new system, Dr. Turpel-Lafond said she has seen records from the Kamloops Indian Residential School that showed a 12-year-old died there of asphyxiation in the 1950s.

“What was the process around investigating that child’s death at the time? At the time, the civil and other authorities may have turned a blind eye, so do we revisit that?” Dr. Turpel-Lafond said. “If there is no person alive and accountable – or entity – then you at least record it and report on it.”

Spokespeople for the Ministers of Indigenous Services and Northern Affairs did not immediately respond to requests for comment on the new report.

The report starts by noting that the Tk’emlúps te Secwépemc First Nation announced that a preliminary search with ground-penetrating radar had discovered 215 unmarked burials near a former residential school and, one month later, the Cowessess First Nation announced its own radar search had discovered 751, but the official records currently accessible only record 58 deaths total at those two schools.

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On Monday, B.C. announced $12-million in funding for use by First Nations to scour some of the 18 residential school sites once operating in the province, and to deliver mental-health and trauma counselling for Indigenous survivors and their families. So far, provincial governments in Alberta, Saskatchewan, Manitoba and Ontario have pledged a total of $22.5-million to cover this work, which piggybacks on a $27-million commitment in Ottawa’s 2019 budget that recently began being disbursed.

Experts have told The Globe and Mail that it could cost more than a billion dollars to search all 130 sites identified by the Truth and Reconciliation Commission.

Ms. Turpel-Lafond also recommended Ottawa draft federal regulations for the technology used to find and document these burials so that First Nations obtain high-quality analysis of these school grounds from reputable researchers and technicians.

“We don’t have clear standards for the use of digital technologies,” she said. “So there’s all kinds of people saying, ‘Hey, I operate ground-penetrating radar. I’ll give you a 50-per-cent discount.’

The public guardian position described in the report should also be tasked with ensuring technology standards are clear, applied at all sites, and updated to reflect the most modern technologies, she argued.

As well, the report says victims’ families, residential school survivors and Indigenous governments all must have clearly defined roles and authorities under this new federal framework.

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Finally, the federal government must properly memorialize the losses of residential school students and acknowledge the massive human-rights abuses that occurred, the report says.

“This includes standards on writing and teaching of history, broader public and social discourses, imagery and representation, and archiving,” the report says.


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