Insight

The Grave Reality

As Canada awakens to the unmarked graves of more than a thousand Indigenous children, lawyers and the Canadian government begin to carve out restitution and a path forward.

Canada's Unmarked Indigenous Graves
SC

Sara Collin

December 10, 2021 06:05 AM

“If it was a shock, then they haven't been awake.”

Over 1,000 Unmarked Graves Uncovered in 2021

On May 28, 2021, it was announced that 215 unmarked burials of Indigenous children had been uncovered near the site of a former residential school in Kamloops, British Columbia. The news made national and international headlines and many people took to social media to express their shock, outrage, sorrow and solidarity.

When over 1,000 additional unmarked graves were discovered over the next two months, the public and governmental response grew and reached a symbolic crescendo. The Canadian government passed legislation declaring September 30 the National Day for Truth and Reconciliation and a statutory holiday, flags were lowered to half-mast and people gathered around the country, wearing orange shirts as a symbol of solidarity for truth and reconciliation.

What Canada Already Knew About Residential Schools

However, to many, these discoveries did not quite come as a shock.

As noted in the above quote by Allan Donovan, a lawyer at First Peoples Law in Vancouver with three decades of experience practising Aboriginal law and representing First Nations, the existence of these graves was no secret to those working in the field.

Referring to the 2015 Truth and Reconciliation Commission report, which identified the existence of thousands of confirmed deaths of both named and unnamed residential school children, Donovan said, “So everyone knew about this, and anyone who wanted to know who had access to the internet, or talked to Indigenous people, they would know.”

In fact, the first discovery of a residential school gravesite in Canada dates as far back as the 1970s, and the current count of uncovered graves stands at approximately 1,874, with many more speculated to exist.

The Cultural Genocide of the Residential School System

The residential school system was composed of a network of so-called boarding schools run by the Canadian government and administered mainly by Catholic, Anglican and United churches between 1879 and 1997. The system was intended to remove and isolate Indigenous children from their culture, language, families and communities under the guise of assimilating them into “Canadian culture”.

In reality, the children were subjected to abominable living conditions and systemic abuse, including sexual, physical and psychological abuse. Over the course of the system’s existence, approximately 150,000 children were placed in residential schools nationally and it is estimated that the number of school-related deaths range from 3,200 to upwards of 6,000, although the exact number remains unknown due to an incomplete historical record.

The Truth and Reconciliation Commission called the residential school system “cultural genocide”.

Breaking the Silence on Residential School Abuse

For Nadir André*, a partner at Borden Ladner Gervais LLP in Montreal with over 23 years’ experience specializing in Indigenous law, and a member of the Matimekush-Lac John First Nation, knowledge of the residential school system and its crimes was born out of a more personal connection. His father was a survivor of the residential school system and sexual abuse.

However, André shared that his father never spoke of his experience and André only learned of his abuse shortly after becoming a lawyer, when he accompanied his father to court one day. Believing himself to be joining his father to only watch the trial of a residential school system abuser, André was shocked when his father was called to the stand to testify – it was his father’s abuser.

“I have to admire the resilience, because it must have been a horrible experience as a child, horrible,” André reflected. “Because he, I guess, he had a really bad time there in a residential school, but never did he mention it. And the fact that he managed to get a university diploma, and become a teacher, and have a good life, travel all over the world, and be able to feed his family and everything … I have to admire what he's done, and how he managed to live with the secret.”

Breaking this silence and giving survivors a voice and an opportunity to share their experiences was one of the purposes of the Truth and Reconciliation Commission. The Commission heard survivors’ stories from across the country between 2008 and 2015. The resulting report contained 94 calls to action regarding reconciliation between Canadians and Indigenous peoples.

The CBC website Beyond 94 currently reports that of the 94 calls to action, only 13 have been completed.

Legal Paths Moving Forward

Over the years, thousands of individual legal claims have been filed and at least one notable settlement with the Canadian government has been reached. In 2007, the Indian Residential Schools Settlement Agreement was approved between the Federal government and Indigenous peoples who attended the schools. The agreement helped establish the Truth and Reconciliation Commission. It has also paid out over $4 billion to survivors so far.

As to whether the discovery of the most recent gravesites will lead to additional compensation or civil claims, neither André nor Donovan would speculate on specifics, other than to say that it was possible.

However, André also raised the issue of future criminal investigations, stating, “Some are asking for the International Criminal Court to investigate because it could fit under war crimes and genocide. In the Truth and Reconciliation Commission, they talked about cultural genocide. And then in the commission that followed on the death and disappearance of Aboriginal women, we're talking about genocide. So for some organizations and some lawyers, well, if it's a genocide, regardless if it's cultural or not, there should be an independent international investigation. And I know for a fact that there have been requests made to investigate.”

The Road to Reconciliation

As to reconciliation moving forward, Donovan submitted that the Canadian government begin addressing issues of restitution by identifying and dealing with the broad range of problems caused by residential schools and stop acting as an adversary to First Nations. Observing that the echoes of the violence and abuse from the residential school system continue to reverberate through Indigenous communities, Donovan stated that the resulting intergenerational trauma has not been adequately addressed. Finally, referencing Canada’s recent adoption of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in 2021, Donovan remarked, “You don’t need an international declaration to permit Canada to do the right thing.”

To André, reconciliation would first involve acknowledging Aboriginal and Indigenous people as sovereign people and addressing matters of self-determination and self-governance. It would require a new land regime that would allow communities to have a say in land ownership and management. In addition, laws would have to be changed to clarify jurisdictional and governance matters. André concluded by stating, “Apologies are symbolically important, but what needs to change is the empowerment of the peoples to take their lives back and to take control of the land they live on.”

Both André and Donovan acknowledge that reconciliation will take time, regardless of the path, with Donovan noting, “It's just painfully slow.”

Sara Collin is a Quebec-based lawyer, specializing in legal writing, editing, research and translation throughout Canada.

Allan Donovan has been listed in The Best Lawyers in Canada™ since 2006 in Indigenous and First Nations Practice.
Nadir André has been listed in The Best Lawyers in Canada™ since 2009 Indigenous and First Nations Practice.
*Disclaimer: Quotes and commentary from Nadir André are expressly his own and do not reflect those of BLG.

Headline Image: Unsplash/TandemXVisuals

Related Articles

Announcing the 2022 Canada's Best Lawyers Publication


by Best Lawyers

Featuring the top legal talent in Canada.

2022 Canada's Best Lawyers Publication

What Are Examinations for Discovery


by Salvatore Grillo

This article explores the importance of an examination for discovery in civil lawsuits.

Illuminated lightbulb in a maze

Getting Reorganized


by Sameer M. Alifarag and Seth H. Lieberman

Taking a second look at first day relief: an examination of recent bankruptcy trends through the lens of two important debtor motions and their impact on Chapter 11 bankruptcy proceedings.

Desk lamp with yellow background

Accommodation Reigns


by J. Lott Warren and Kara E. Shea

A recent 6th Circuit Court decision could have big implications for employers who don’t follow reasonable-accommodation standards within disability and medical-leave law to the letter.

Blue lungs behind white clock

COVID-19 and a Cloud of Dust


by John J. Song and Theodore M. Becker

Think ERISA health plan litigation was convoluted before? The pandemic—and future pathogens such as the monkeypox virus currently causing consternation among health authorities worldwide—will further upend the legal landscape as new regulations and statutes take effect.

Masked man with airborne germs

The Great Debate: Do You Arbitrate Commercial Disputes?


by David K. Taylor

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place its very solvency in the unpredictable hands of a judge and jury?

Hand moving multicolor blocks

Before the Claim Hits


by George L. Lankford

General liability insurance is rarely as simple as it might seem—and if you wait to examine your policy specifics until your business has been sued, it’s too late.

Ship sinking surrounded by money

7 Things to Never Do After a Car Accident


by Daniel Petrov

Petrov Law Firm discusses things to never do after a car accident. Read on to learn more.

Nighttime street with two cars at intersection

What Should You Do if the Other Driver Doesn't Report the Accident?


by Sean Lopez

Advice from a personal injury attorney on what to do when the other driver doesn't report the auto accident.

Woman in orange shirt standing by wrecked cars

How A Claim Can Create A ‘Class’ of Its Own


by Justin Smulison

One civil claim can help a victim recover, prevent others from the same harm and even save lives. Tom Connick has experienced this directly, having been at the ground floor of injury claims that have led to high-value class action settlements.

Fire Consuming Paper Money

Why Do Rear-End Collisions Happen and Who’s to Blame?


by Matt Baggett

Rear-end collisions happen for many reasons, but the blame frequently falls on the rear driver. Learn about the causes of rear-end collisions.

Blue car crashing into black car

When to Hire a Car Accident Lawyer


by Nick Movagar

When you get injured in an accident caused by someone else’s negligence, you can pursue injury compensation. Learn when you should hire a car accident lawyer.

Wrecked car with broken windshield

What Are Zoning Laws Meant To Do?


by Bartek Szymanski

Zoning laws are important to the safety and protection of communities.

Hand holding pan writing on map

Same-Sex Couples and Marriage Visas: Everything You Need To Know


by Elizabeth Hagearty

All marriages are considered equal under U.S. law. Here’s what that means for LGBTQIA+ immigrants.

Pride flag, finger and visa document

Announcing the 2022 Best Lawyers: The Corporate Law and Commercial Litigation Issue


by Best Lawyers

The first edition of Best Lawyers: The Corporate Law and Commercial Litigation Issues features thought leadership articles from attorneys around the nation, as well as listings in more than 70 practice areas.

Corporate and Commercial Issue

Unwavering Dedication to Clients


by Best Lawyers

Trial attorneys Michael Lyons and Chris Simmons find motivation when the result means everything.

Trial Attorneys at Lyons & Simmons

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Announcing the 2022 Best Lawyers in Canada™


by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Best Lawyers: Ones to Watch in Canada 2023


by Best Lawyers

The year 2023 marks the second edition of Best Lawyers: Ones to Watch in Canada, highlighting professionals earlier in their legal careers all across Canada.

Blue background with white stairs formed out of lines

All Eyes to the Ones on the Rise


by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch™ in America tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Announcing The Best Lawyers in Australia™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Press and Publicity: How Television and Social Media Impact Legal Careers


by Justin Smulison

In recent years, with social media giving minute by minute reporting, many lawyers are finding themselves thrust into a spotlight they never planned for. How are lawyers grappling with unexpected stardom, media coverage and merciless influencers?

Close up of camera at news station