THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, November 27, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, before we begin, I would like to ask all senators and other in-person participants to consult the cards on the table for guidelines to prevent audio feedback incidents. Please make sure to keep your earpiece away from all microphones at all times. When you are not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
I would like to begin by acknowledging that the land on which we gather is on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaq Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the Standing Senate Committee on Indigenous Peoples. I will now ask committee members in attendance to introduce themselves by stating their names and province or territory on which they reside.
Senator Arnot: My name is David Arnott. I’m a senator from Saskatchewan. I live on Treaty 6 territory, which is also the home of the Métis.
Senator McNair: I’m John McNair from New Brunswick, the unceded lands of the Mi’kmaq people.
Senator Osler: Flordeliz (Gigi) Osler from Manitoba, Treaty 1 territory, original lands of the Anishinaabe, Cree, Oji-Cree, Dakota and Dene peoples and homeland of the Red River Métis nation.
Senator McCallum: Mary Jane McCallum from Manitoba, Treaty 10.
Senator Tannas: Scott Tannas from Alberta.
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park, Treaty 7 territory.
Senator Greenwood: Margo Greenwood from Treaty 6 territory, living in British Columbia.
Senator Pate: Kim Pate. I’m an interloper to the committee, but I’m very happy to be here. I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg.
The Chair: Thank you, senators.
Today, the Committee on Indigenous Peoples will hear from Kimberly Murray, Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools, whose mandate comes to an end in December. The Committee on Indigenous Peoples heard from Ms. Murray back in March 2023. Her testimony contributed to the release of two of our interim reports, Honouring the Children Who Never Came Home: Truth, Education and Reconciliation released in July 2023 and Missing Records, Missing Children released in July 2024.
Today, Ms. Murray will update the committee on the crucial work her office has undertaken since her appointment in June 2022, including the final report she released on October 29, which outlines
. . . the legal, moral, and ethical obligations that Canada must fulfill to address the legislative and structural gaps that exist in identifying, protecting, and commemorating missing and disappeared children and their burials.
With that, I would now like to introduce our witnesses: from the Office of the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools, Kimberly Murray, Independent Special Interlocutor. She is accompanied by Laver Simard, Director of Procurement and Protocols. Thank you both for joining us today. Ms. Murray will provide roughly 10 minutes of opening remarks, which will be followed by a question-and-answer session with senators. Ms. Murray, I now invite you to give your opening remarks.
Kimberly Murray, Independent Special Interlocutor, Office of the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools: Shé:kon Sewakwekon, Kimberly Murray yónkyats, kanyen’kehá:ka ní:’í ne kanesatake. Good evening, everyone. I’m Kimberly Murray. I am Mohawk of Kanesatake, and I am very humbled to have been the Independent Special Interlocutor for Missing Children and Unmarked Burials.
I too would like to acknowledge that we are on the unceded, unsurrendered territory of the Anishinaabe Algonquin Nation, and I recognize that Ottawa has been, and continues to be, the home to many First Nations, Inuit and Métis peoples.
Thank you to the Senate Committee on Indigenous Peoples for allowing me to appear before you this evening.
I want to first recognize and honour survivors and their families for everything that they have done to raise our collective awareness about the atrocities perpetrated against them at Indian residential schools and other institutions. I thank them for always speaking their truths and sharing their knowledge with Canada and the world. We must always remember that they are “our living witnesses.”
As many of you are aware, and as Senator Francis indicated, I released my final report last month on October 29. The final report includes an executive summary, including the Sites of Truth, Sites of Conscience: Unmarked Burials and Mass Graves of Missing and Disappeared Indigenous Children in Canada, which is a history report that was previously released for download on July 3, 2024. I’m going to speak about this report in my presentation this evening. My final report also included Upholding Sacred Obligations: Reparations for Missing and Disappeared Indigenous Children and Unmarked Burials in Canada, which is a two-volume report.
My mandate and terms of reference for my position directed me to identify areas of improvement in Canadian law and make recommendations for a new federal legal framework. Because governments often ignore recommendations, I have opted to instead identify the legal, moral and ethical obligations that governments, churches and other institutions have. I have identified 42 obligations that must be met for there to be an Indigenous-led reparations framework for truth, accountability, justice and reconciliation. These obligations arise from the UN Declaration on the Rights of Indigenous Peoples, Indigenous laws, international human rights law and Canadian constitutional law.
I want to speak about the Sites of Truth, Site of Conscience, the volume I released in the summer of 2024. In this volume, the evidence of genocide and crimes against humanity that were perpetrated against the children is shown. The report shows that cemeteries were part of the Indian residential schools from the very outset. The government planned for the deaths of the children. The evidence shows how the federal government and the churches dehumanized the children in life and after death. When the children died, government and church officials did not return the children home for burial. They were buried in cemeteries at the institutions, often in unmarked and mass graves that were sometimes dug by the other children. Many of these cemeteries and burial sites were neglected, abandoned and left unprotected.
Sites of Truth, Sites of Conscience focuses on the documented Indian Residential School cemeteries and burial grounds where Indigenous children are known to have been buried. Twenty representative examples of these burial locations are included in the report, along with images of the historical records and photographs that support the testimonies of survivors.
Sites of Truth, Sites of Conscience highlights how the Indian Residential School system intersected with many other institutions. Parents and communities were often not informed when their children were transferred from one Indian Residential School to another, or to an Indian hospital, a tuberculosis sanatorium or a reformatory, or when their child fell ill or died in any of these other institutions.
Sites of Truth, Sites of Conscience also highlights the “Working Out” system which began in the late 19th century. Canada adopted the “Working Out” system from the Indian boarding schools in the United States. This system trafficked children from Indian Residential Schools to perform manual labour. They were forced to live and work in homes, on farms and in businesses. Their work placements were always brokered by Indian agents and the principals of the institutions. The transfers and trafficking of the children adds to the complexity of the work being done by communities and families to find the children today.
I now want to speak about two main findings in the Upholding Sacred Obligations report: first, that many of the missing children have, in fact, been disappeared by the state; and second, that there is an urgent need to establish a commission of investigations into the enforced disappearance of Indigenous children in Canada.
Moving first to enforced disappearances, there is an important distinction between the terms “missing” and “disappeared.” While both refer to the absence of a person, being “disappeared” specifically requires the absence to be as a result of force against the will of a person. The term “missing” may be accurate in a literal sense and properly describes the longing of families for their loved ones, but it fails to reflect the government’s culpability and responsibility for the fact that children died and went missing because of purposeful state violence, action and force.
Pursuant to international legal criteria, the enforced disappearance of children requires the government to ensure that full investigations into the deaths of the children occur, that families and communities be notified of the fate of the children and that proper reparations be provided.
Under international law, enforced disappearances is a continuing offence. They continue if the perpetrators conceal the fate and the whereabouts of the persons who have been disappeared. This means that as long as the fate of the children remain unknown, Canada and the churches are still committing the offence.
In accordance with United Nations standards, Canadian authorities have an obligation to ensure prompt, thorough and impartial investigations into all potentially unlawful deaths and disappearances of the children. In my final report, I write that Canada has an obligation to establish a commission of investigation into missing and disappeared Indigenous children and unmarked burials. I find that this commission of investigation should be created by legislation and have stable, sustainable and flexible funding for at least 20 years.
In the past two years of my mandate, several concerns have been raised that require further investigations. These investigations should be done by the commission of investigation into missing and disappeared children. They include investigations into the deaths and disappearances of Indigenous children who were taken to Indian hospitals, TB sanatoria, psychiatric institutions, orphanages, institutions for children with disabilities, homes for unwed mothers, reformatories and juvenile detention centres. We need investigations into the human experimentation that occurred on Indigenous people in these institutions, including on children. Finally, there needs to be investigations into the deaths and disappearance of the babies born at Indian Residential Schools and other associated institutions.
I do not have time to speak about all 42 obligations that I have identified in my final report, but in my report, I state that it is time for Canada to shift from a culture of amnesty and impunity to a culture of accountability and justice. This starts with a proper Indigenous-led reparations framework.
Survivors and Indigenous communities have said that the Indigenous-led reparations framework must include a federal right to truth law and a national Indigenous data sovereignty strategy. It must include the rematriation of the lands where the missing and disappeared children are buried. It should include an Indigenous reparation act to return the remains of the children to their home communities. It should include a national commemoration and memory law. It should include an amendment to the Criminal Code making it an offence to willfully promote hatred against Indigenous people by condoning, denying, downplaying or justifying the Indian Residential School system. It should include sustainable funding and support from all levels of government.
The inter-jurisdictional neglect that is occurring is apparent across the country. One example is with respect to Grassy Narrows here in Ontario, who are struggling with obtaining funding from the federal government to search the sites of the McIntosh Residential School, which includes federal and provincial Crown lands. They are also having to fight to remove provincial barriers to access and search the provincial Crown lands.
To date, governments have evaded accountability at the international and domestic levels. Canada has created and maintained a culture of institutional and individual impunity and settler amnesty. The children died while in the care and custody of the Canadian state. In my final report, I urge the Canadian state to now honour its legal, moral and ethical obligations that I have identified. I ask that the Senate do whatever it can to ensure that all 42 obligations are met.
With that, I say nyá:wen for your time, and I am happy to answer any questions and provide any further information that you would like.
The Chair: Thank you for your opening remarks, Ms. Murray. I’ll now open the floor to questions from senators. I’ll start with the first question.
I have heard concerns from Indigenous survivors, families and communities related to access to federal funding. For example, the independent Indigenous members of the Residential School Documents Advisory Committee ceased participation last August due to a lack of funding to fulfill their work plan.
In addition, the Residential Schools Missing Children Community Support Fund was reduced from $3 million to $500,000 this summer. While the federal government quickly reversed this cap after public backlash, it is unclear how much funding is actually available and what activities are covered.
I’m just wondering if you heard about these issues throughout the course of your engagement. Do you have any concerns related to funding now that your mandate is almost over?
Ms. Murray: Thank you for the question.
First, I would identify that the original funding that Canada made available to communities after Tk’emlúps made their announcement was a cap of $5 million per year. That was cut to $3 million per year and then, as you noted, this summer they put a cap of $500,000. They’ve since lifted the cap, but we are still not clear on how much funding is available and what the cap is. They have said it’s $3 million, but I have yet to meet a community that has received $3 million this fiscal year or received any kind of approval from Canada on the funding.
What is really problematic is that we don’t know what activities communities can use the funding for. The original funding program that was made available allowed for funding for commemoration and memorialization. That was cut in the summer, and it’s unclear to me whether it’s available again. Just today, I met with a community, Williams Lake First Nation, who are struggling to try to get funding to do commemoration on their territory at the former residential school.
There are also concerns now that Canada has put restrictions on using the ground-penetrating radar. I heard just last week from a community that they are being told that they are not allowed to use the funding for any invasive technology, including ground-penetrating radar, which is not invasive.
I have been trying to get clarity from Crown-Indigenous Relations and Northern Affairs Canada on what they are willing to fund and not fund. This is an ongoing issue across the country. As I say in my final report — I have said this to Canada — we cannot treat the search for disappeared Indigenous children as a program. Canada has legal international obligations to support communities to find the truth. It seems that with the cutting of the funding, they don’t want the truth to be known.
The Chair: Thank you for that, Ms. Murray.
Senator Arnot: Thank you for coming today, Kimberly Murray and Laver Simard, and thank you for your difficult work.
I am wondering if you’ve had any preliminary response to the report in July or the report in October. Do you expect a response before you leave? I’m really concerned about this because most of the things that you’ve reported on require an accountability and a holding of the executive branch of government to account. I would like to know the answer to those questions.
Bottom line, what do you think this Senate committee can do about the obligations that you have identified? How can we help on that?
Ms. Murray: To answer your first question, I have not received a response from Canada on my report. I did hand deliver it to Minister Virani, the Attorney General, on October 29. Just this morning, while I was travelling here, I was writing a letter to Minister Virani, which I intend to send tomorrow, asking for a reply to my report.
In relation to what the Senate can do, in the Indigenous-led Reparations Framework, as I’ve identified, there are a number of legislative things that I’m calling on Canada to implement, such as the federal right to truth law, changes to the Privacy Act and changes to our Access to Information Act. There are a lot of important amendments that could be made and new legislation that could be implemented.
My mandate instructed me to send my final report to different United Nations bodies. I have sent my report to five separate UN bodies. I have met with some of those organizations. I think it’s really important that we bring attention to the disappeared children in Canada at the international fora, and I intend to do that. Communities have asked the Working Group on Enforced or Involuntary Disappearances to come to Canada, but as I have said in my report, even the UN needs to be decolonized, and some of these entities won’t come to Canada unless the Government of Canada invites them, as the state. Anything we can do to get some of these bodies to come to Canada for a country visit would be very important as well.
Senator Arnot: Thank you very much.
Senator Sorensen: Thank you for being here. It is nice to see you again, and I have much respect for the work that you have done and that you continue to do.
On the topic of further investigations, your report argues that the search for missing children should also include investigations into Good Shepherd homes, where many Indigenous girls were considered troubled and they were transferred. The information I have is that Cree Elder Taz Bouchier, who was abused while attending Alberta’s Maple Ridge Residential Treatment Centre for girls, tried to have this institution added to the Indian Residential Schools Settlement Agreement but was rejected because it was a provincially run home.
I guess I’m looking for clarity from you that the focus on federal liability has caused survivors of provincially run institutions to fall through the cracks. Would you say there is a significant number of victims who haven’t been heard simply because of which level of government they were harmed by? I guess I’m curious: Do federal officials currently have jurisdiction to investigate and address colonial abuses that occurred in provincial institutions? Or that may be the future work of a commission, if we are successful in that.
Ms. Murray: That’s a big question.
First, I would just remind people that, under the Indian Residential Schools Settlement Agreement, survivors and communities could ask to add institutions to the settlement agreement. Very few were added from the original settlement agreement. There is a document that’s multiple pages in length that identifies all the institutions that people tried to add to the settlement agreement. The Good Shepherd’s home is on there, along with many other institutions that I mentioned in my final report. We know that Indigenous children were taken to those institutions.
What I think is interesting is that in Library and Archives Canada, we can see documents where Canada is approving the transfer of the children to these institutions. It’s the Indian agent that is approving it, and they’re paying for the maintenance of the children in these provincial institutions. The provinces were billing Canada to maintain the kids in these institutions, and it was the Indian agent that was sending them to it, so the idea that Canada has no liability in relation to these provincially operated institutions needs to be looked at more closely with the historical records.
I identified the Good Shepherd’s home in particular because I wanted to show the experience of Indigenous girls and how they were being sent to all these different institutions because of stereotypical racist perceptions of Indigenous girls and women. We found many records of girls being sent from the residential schools to the Good Shepherd’s home by the Indian agent, by the church entities, with no court order. Many institutions received children under court order, but if you weren’t there under a court order, there was no end to your term. You were just there indefinitely until the Good Shepherd’s home decided to release you. There are some class actions that are happening against some of the Good Shepherd’s homes that people have signed on to.
As I say, there hasn’t been proper reparations. Canada has approached reparations with Indigenous people in a piecemeal way. First, they deny any kind of liability, and then they partially accept that they had some liability, and they drag survivors through the court system and through the processes and never respond in a holistic way. The Indigenous-led reparation framework that I have identified the obligations for is about addressing all of these harms that happened.
Senator Greenwood: Thank you.
The Chair: Ms. Murray, Obligation 37 calls on the federal government to amend the Criminal Code, making it an offence to willfully promote hatred against Indigenous peoples by condoning, denying, downplaying or justifying the Indian residential school system or by misrepresenting facts related to it. Could you expand on why this amendment was put forward?
Ms. Murray: Thank you for that question.
I identified some of the problems communities were facing in my interim report that was released in Cowessess in June of 2023. I write about how when Tk’emlúps made their announcement of their recovery, a lot of very harmful activity and hate speech was directed towards them. I have heard across the country from different communities about the problems that they are facing in relation to online harm and hate and harmful hate speech directed at them. I myself have been exposed to it and have received every day e-mails from individuals threatening my life. I have had to have security with me in some situations. So I do believe that an amendment to the Criminal Code is needed.
The language that I propose, that Leah Gazan has proposed in her bill, mirrors the language of the amendment we made to the Criminal Code in relation to Holocaust denialism.
I have a lot of free-speech people who say that this is not a proper way to address it, but I believe it is. Hate speech is not protected by the Charter, and it is getting worse in the country. We need to ensure that survivors and communities are safe. We need to send a clear message to Canadians that it is not okay to incite this kind of hate.
This is what I often say to people: It is one thing for you to say you don’t believe there are burials. That’s your opinion, and you can have freedom of speech to say that, but when you say there are no burials and the First Nations people or the Indians are lying because they want you to go burn down churches or they want to take away your cottages, that is inciting hate against Indigenous people, and that’s the type of speech that we need to stop. That’s the type of speech that is hateful and not protected by our Charter.
The Chair: Thank you for that, Ms. Murray.
Senator McCallum: It is good to see you again.
Commissioner, I want to ask a question around the government’s fiduciary responsibility to First Nations specifically. When we look at the constitutional, treaty, political and legal responsibilities — which is what you are addressing here — that the government has to First Nations, it is hard to reconcile those profound responsibilities with the advent and subsequent cascading impacts we still see today from the IRS system.
As we are all aware, the IRS system constituted an unthinkable human rights violation and genocide, and it was a system that was targeted specifically and intentionally towards First Nations children, and Métis children were apprehended on a more ad hoc basis. The Métis and Inuit were not under the Indian Act. The treatment of First Nations and Métis under the IRS system was horrendous, and acknowledgment must be made that the system was predominantly geared towards removing those First Nations children.
Given this human rights violation and genocide as so enabled by the federal government in concert with the church, would you say that the government’s responsibility, in the present, of course, is to make significant reparations and accommodation? When you look at the constitutional, treaty, political and the legal responsibilities, I want those wrapped around this question, because it is a combination of all of them. Sometimes we separate them, but they can’t be separated.
In light of the federal government’s prolonged and malicious campaign of oppression, exclusion, marginalization, dispossession of lands of those people who have lived here since time immemorial and the ultimate lack of respect and honour for the treaty that this constituted, what is the government’s responsibility to accommodate First Nations today?
I know your report talks about it, but nothing is happening. There is so little that is happening right now, and we’re in limbo. As a former student of a residential school, the less intervention there is, the longer it is, the more trauma we have and the more insidious it becomes with intergenerational trauma and the more money it is going to cost in the end.
Ms. Murray: So many things went through my mind when you were asking that question.
In my final report, I have a whole chapter on the law, the Constitution, treaties and obligations that the federal government has, and I identify how our legal system, our case law and our law on treaty rights and Aboriginal rights have helped create a culture of impunity in this country and have created this idea that we don’t have to provide reparations to Indigenous people.
I write a lot about, as I said earlier, this piecemeal approach that for generations every government has taken towards responding to the claims of Indigenous people, and we have to do better. Canada is always having to be dragged to the table for conversations, and we will never get to reconciliation if that’s the way that we are going to approach these claims moving forward. There has to be a broader response to the reparations that are required. I have tried to identify the different ways that we can do that. That’s responding to not siloing day schools and day scholars and the Sixties Scoop. It is just one ongoing lawsuit after the other. We’re going to be in this same litigation mode if we don’t do this Indigenous-led reparations framework and do it properly. I don’t know if I answered your question.
I would also say that when you were speaking, I was thinking about the apologies that have been issued by the government, in particular in relation to Indian residential schools, and how they’ve limited liability. The apologies have not acknowledged the harms that had been perpetrated against Indigenous people. Stephen Harper’s apology to survivors had one line in it about the fact that children died. We have not received a proper apology, and there were no actions attached to that apology. I have said that new apologies with proper reparations attached to those apologies are needed in relation to at least the missing and disappeared children in the country. I’ve analyzed a lot of the apologies that the government has issued over the years in all kinds of different manners in my report, and we’re failing. We have failed in this country when it comes to reparations.
Senator Pate: Thank you very much, Mr. Simard and Ms. Murray, for being here.
We have known each other for a long time, and one of the areas we’ve worked together in is the criminalization of Indigenous women, in particular. The issues you are raising raise many concerns about the extension of the responsibility and the hyper responsibilization, in particular, of Indigenous women, the idea that not only are they given the responsibility to protect themselves or to protect those in their care, but they are socialized and often come to believe that themselves. How would you see incorporating some of that into this?
As you know, as we’re having this discussion, the TRC Calls to Action — of which you were instrumental in putting forward — by next year were supposed to have dealt with mass incarceration of Indigenous people. As we sit here, Indigenous women are 1 in 2 of federal prison populations; 9 out of 10 of those in Saskatchewan, Manitoba and the North; and 10 out of 10, 95% to 100%, of young women and girls in the system. The situation is getting worse. Are there other ideas about how to interrupt this? I don’t mean to put the responsibility on you in any way, but how do we incorporate that into some of this reparation discussion as well?
Ms. Murray: Thank you, Senator Pate, for the question.
I have a whole chapter on the justice system in my final report, and I identify the failures of Crown prosecutors, police services and everyone involved in the legal system. I’m reminded by elders to not call it a justice system because it hasn’t served any justice.
When I think about what is needed — and we write about this throughout the report — it is the importance of Indigenous laws, the importance of revitalizing and supporting the revitalization of Indigenous laws, which former Senator Murray Sinclair advocated for with the Truth and Reconciliation Commission. We have not done a very good job since the TRC on those Calls to Action.
I have often said — I used to work at the Ministry of the Attorney General in Ontario — that we need a complete paradigm shift. It is not enough to tinker with the box. It is not enough to think outside the box. We need to change the box. We need to get rid of the box, and we haven’t done that.
The Truth and Reconciliation Commission called for a revitalization of Indigenous laws, and Canada has been very slow to respond to that. We have always invested as a country and as provinces and the federal government into what I say is the ship side of the Two Row Wampum. We put resources into the correctional system, more judges and more Crowns, but we don’t put an equivalency of resources into the canoe side of the Two Row Wampum, which is about revitalizing Indigenous laws and languages. These are all things that we know work to keep people safe and to make safer communities.
I don’t know if that answers your question, but those are my thoughts about that. We can’t keep doing the same thing over and over again.
Senator Greenwood: Thank you both for being here this evening, and hiy hiy for all the work that you have done.
In the report, you wrote:
Canada has decided not to sign or join numerous international human rights bodies that could help investigate human rights abuses against Indigenous children. Canada has not signed or ratified the American Convention on Human Rights nor accepted the jurisdiction of the Inter-American Court of Human Rights, which enforces it. Canada has also chosen not to sign and ratify the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (Convention on Enforced Disappearance), which includes specific obligations for States to investigate disappearances and explicitly recognizes the right to truth.
You spoke of this already. Can you please state for the record why you think the Government of Canada has not signed or ratified these conventions or joined these human rights bodies that would help investigate the human rights abuses experienced by our Indigenous children?
Ms. Murray: Because it has given itself amnesty. That’s why it is refusing to sign on to these conventions. It reduces accountability, and it blocks survivors and Indigenous people from avenues to be able to seek accountability and justice.
I also write about the fact that Canada, in our own Crimes Against Humanity and War Crimes Act, removed “enforced disappearances,” which is in the Rome Statute. We know and Canada knows that it has disappeared Indigenous children.
I write quite extensively in my final report about the de facto amnesty that Canada has created and granted itself. In my obligations, I call on Canada to sign on to some of these conventions to open up the avenue for accountability for survivors and Indigenous communities.
Senator Greenwood: Thank you.
Senator McCallum: When you said that if bodies are not found, Canada is still committing an offence, would you say that funding is a conflict of interest here? And if that is so, who would be the people that we could go to that could get involved so Canada is not keeping a lid on things?
Ms. Murray: First, I would say there is the UN Special Rapporteur on the rights of Indigenous Peoples, the UN Expert Mechanism on the Rights of Indigenous Peoples and there is the International Criminal Court, with which I filed my report. The crime of enforced disappearance is an ongoing crime, as I said. The International Criminal Court declined jurisdiction when they were first written to by a group of lawyers here in Canada after Tk’emlúps made their announcement. The International Criminal Court said they don’t have jurisdiction because the crimes would have occurred before the court was created. That’s why it is so important for people to understand that children were disappeared, because it is the only crime that is an ongoing crime that the court can hear.
I have been saying that Canada is committing the crime today, it committed it yesterday, and it is going to commit it tomorrow because it is not providing proper resources for communities to do these investigations. It’s hiding the truth. It’s blocking access to archival records. There are 30 to 40 million records that the records committee was supposed to transfer over to the National Centre for Truth and Reconciliation. Canada has not created any kind of Indigenous data sovereignty strategy for communities to get their records back, so they are blocking the truth. We still don’t know the fate of the children. We don’t know what happened to those children.
We have lots of death records. There are lots of death certificates of the kids that died at Indian residential schools that say they are buried at the Indian residential school cemetery. Many of those death records are signed by the Indian agent or the principal who said what the cause of death is. How can we have any assurances that those are accurate causes of death when there is not even a medical opinion on file?
Communities, as you know, want to do these investigations. They want them to be Indigenous-led. They want to bring attention of the United Nations to what is happening here in this country. Canada is not a human rights-abiding country when it comes to Indigenous people.
Senator McCallum: My question was, who can we go to request the funding and say, “This is beyond the federal government”? There is no one.
Ms. Murray: There is no one.
Senator McCallum: No one in Canada.
Ms. Murray: For additional funding? I mean, it’s Canada’s obligation to provide the funding.
Senator McCallum: I know, but they have taken it back. They decide.
Ms. Murray: I think it’s so shameful that some of the provincial governments are the ones that are actually doing the work of reconciliation far greater than what the federal government is doing. We’re seeing communities having to go to foundations to seek funding to help support the investigations they are doing. We’re seeing them getting funding from provincial governments to buy back their land, and it really should be Canada who provides that funding.
Senator McCallum: You talked about going back to Indigenous law, but you know that they are not enforceable. The RCMP refused to enforce them and you can’t prosecute. We’re dealing with that in Manitoba, and I do have an intervention on the floor on that.
It seems to me such an impossible situation. Everywhere we go, we’re hitting that side of the box. I wanted to bring back your analogy for the box because when I started, I saw myself in the box. I said to people, “How can you think outside when you don’t even know what happened in this box?” Now, my teachers are saying, “You live in the box until you hit the sides, and then you start breaking down.” That’s where we’re at right now. But it’s by the very same perpetrator that we’re fighting. It just seems so unfair, frustrating and tiring. Sometimes I think I don’t know where to go with this.
The Senate did an apology. I had made a motion. I don’t know if you knew that. They did apologize. So we need some action from that. I knew that. What is the most important thing that the Senate can do? We cannot do anything with funding, right? What is the most important thing that we can raise, aside from the intervention on crime against humanity that I did with you and MKO? What is it that we can do to move ahead or to give us hope?
Ms. Murray: The number one obligation is to survivors and to ensure that they continue to receive support to come together and to share their truths, because there are many survivors that haven’t shared their truth yet. We need to continue to support that in whatever which ways we can, whether it’s having them come and testify or if it’s supporting them at gatherings. They need and they want that. You know that.
But I do believe that the commission of investigation is desperately needed in this country to support communities doing this work, to be independent.
I do want to give you a little hope, though. You talked about Indigenous laws and how they are not being applied and we can’t have them prosecuted. There have been some cases recently where Indigenous laws have been applied in courts. One in particular was in relation to the search of a grounds in Quebec where the Mohawk mothers, the Kahnistensera, went to court, unrepresented. They are grandmothers. They argued Indigenous law. They were able to get an injunction to stop McGill University from doing development on the lands of the old Allan Memorial Institute in the Royal Victoria Hospital. There are some cases in Ontario that have happened where Indigenous laws have been applied in the court system and have applied Indigenous laws in relation to community safety to keep drug dealers out. We are seeing a bit of a shift with some of the benches, so I want you to have hope that this can continue when we have programs such at the University of Victoria on Indigenous laws and people are graduating with degrees in Indigenous law. I think that we can see a shift coming. It has been a very long time, though.
The Chair: Mr. Simard, can you add to that?
Laver Simard, Director, Procurement and Protocols, Office of the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools: I would like to first acknowledge the day school survivors and families. My name Laver Simard, I’m from Treaty 5 territory.
I asked the question Senator McCallum was asking about Indigenous law. I remember quite a few years ago asking an elder from Manitoba — you probably know the elder I was asking — I said, “What do they mean when they talk about Indigenous law?” He said, “Land, air, water. If you are in harmony with land, air and water, that’s Indigenous law.” He gave me a teaching on being in harmony and balance with land.
What we’re talking about here, you have your Western law and Western world versus your traditional world. So when we’re talking these, we have to bring those worlds together. When we’re talking about what can we do, it is what can we do in terms of the Indigenous law and the Western law. In that teaching that he shared with me many years ago, he used that term “land, air and water being in harmony.” You’ll see that a lot, going back to our elders and our traditional teachings, going back to what was taken from us. Meegwetch.
The Chair: Thank you, and thank you, Senator McCallum.
Ms. Murray, how should progress on the implementation of the legal, moral and ethical obligations of your report be monitored? Who should undertake this monitoring work?
Ms. Murray: Thank you.
One of my last obligations is to create an implementation committee appointed by the national Indigenous organizations. I spent a lot of time thinking about where the oversight of the obligations should rest. We don’t have our national council for reconciliation yet, so I didn’t mention them in my report because I don’t know what it will look like and who it’s going to be. They could potentially be a body that could have oversight on the obligations, as they will have with the Calls to Action, if we ever get it up and running. That’s an avenue that I think would be important.
I do just want to speak quickly about the UN Declaration on the Rights of Indigenous Peoples. We have a UN Declaration Act in this country which commits to implementing the UN Declaration on the Rights of Indigenous Peoples. We have a Supreme Court of Canada decision that has now said that the UN declaration is law in this country. There are many articles in the UN declaration that are specific to this type of work, of finding the disappeared children, of rematriating lands and repatriating the children. I think that we need to hold the government to account in relation to the UN Declaration Act and its action plan.
There is very little in the action plan that deals with finding the missing and disappeared children and protecting their burial grounds. It’s not too late to make changes to that action plan. We should be calling on Canada to make edits to their action plan.
Senator Osler: Thank you to both witnesses for being here today.
The final report identified the legal, moral and ethical obligations that governments, churches and other institutions have to support Indigenous-led search-and-recovery work. I note that the obligations do call on different governments, especially the Crown, but I’m wondering if you could comment on the obligations that churches may have, financial or otherwise, in terms of reparations and — I’ll leave it at that. Your opinion on the role the churches have.
Ms. Murray: Thank you for that question.
The churches were the agents of the state, implementing the policies of the Government of Canada. There are many things that they can do, and in particular, as you know from your own reports and studies in relation to their records — I write about how in particular the Catholic churches have been utilizing colonial laws that don’t apply to them to protect their records. They have been telling communities, “We gave all our records to the TRC, which are now at the National Centre.” Or they say, “We can’t give you these records because of privacy law.” But privacy law doesn’t apply to the churches. Their own lawyers have issued a memorandum to them, to all the different dioceses, saying that the privacy law and the access to information legislation doesn’t apply to church entities. So that’s a very big step for them, to release records.
I do write about the Jesuits and how they released the names of employees that have credible allegations against them for physical and sexual abuse. All the churches need to do that. They not only identified the individuals, but they identified and listed everywhere that individual worked, identified whether they were living or deceased, and that’s really important information that communities are trying to compile right now as they do the searches.
Obviously, most — many of the churches have issued apologies. Some have reissued their apologies. It’s really important that their acknowledgment of the harms be based on human rights language and that they have action plans.
I have identified other institutions in my final report and have obligations directed at them, including the media, universities in particular, and the medical profession. We know the Canadian Medical Association acknowledged and issued an apology. They acknowledged that medical experimentation was done on Indigenous people. They are issuing a second report that is going to be coming out in January. We know that universities and university professors were involved in medical experimentation and house many records and studies about Indigenous people. We need those records to be made available to communities.
With respect to the media, I have asked them to look at their own history in how they have reported on Indigenous peoples and communities and how they issued propaganda around Indian residential schools. We see the CBC, in their new Indigenous — I forget what they call it — they have an Indigenous framework or policy, and they are doing that work right now to look at their own archives to see what they have done over the years in relation to reporting on Indigenous people.
So there is lots for everybody to do. My last chapter in my final report is called “Expanding the Circle.” It gives some examples of good things that organizations and individuals are doing to support communities, and it calls on others to do that work.
Senator Greenwood: You may have answered part of my question already. This is really around the full reparations, and you wrote about that in Obligation Number 7. In the framework, you identified some categories. I wanted to give you an opportunity if there is anything more you would like to say about that framework. That would be really good for us to understand.
You have already spoken about some of the obstacles that get in the way of maybe developing that or implementing. I wanted to give you the opportunity to expand a bit on that framework and then identify what might be some of the challenges, because that might help us to know what we could support.
Ms. Murray: Thanks for the opportunity.
I would like to highlight that I call it an “Indigenous-led reparation framework” because we have seen that the country hasn’t done very well on its own. I write in my interim report and in my final report about what it means to be Indigenous-led. That means that there has to be Indigenous decision making and involvement. It doesn’t mean that it has to be all Indigenous people, because we require our allies and we require the support of experts, especially when it comes to these types of complex searches, but we need to have Indigenous peoples steering the ship or steering the canoe or paddling the canoe, and we haven’t had that. It’s always been in the control of the Government of Canada or the federal government about what they are going to apologize for, what they are going to compensate for and what the limitations are going to be.
There are many, many barriers. I identify 12 barriers in my interim report that communities are facing, and I try to address those barriers through this Indigenous-led reparation framework. But the number one concern that I heard across the country was that there has not been justice or accountability for the harms perpetrated. That’s why my report is so heavily based on these international legal obligations, because I wanted to make sure that Canada understood that it is breaking their commitments that they made with the United Nations and that they are breaking their legal and moral obligations.
Senator McNair: Thank you to both of you for being here tonight.
We could spend an hour just talking about each obligation and critiquing it. There is not a lot of time to go through everything. I think you just touched on this in your last answer, but on the justice and accountability segment, I am curious about Obligation Number 11 of the report, which states that, “Canada must refer the enforced disappearance of children, as a crime against humanity, to the International Criminal Court . . . .” Can you just expand on why it’s critical from your perspective to do so and why doing so is both necessary and appropriate in the circumstances?
Ms. Murray: Thank you for that question.
The International Criminal Court investigates crimes against humanity and prosecutes individuals. We know that some of the individuals responsible for the atrocities are still alive in this country and outside this country. We know that to refer a matter to the International Criminal Court, the state has to refer the matter or another state has to refer the matter, so I have called on Canada to refer itself to the International Criminal Court. It would be very meaningful to survivors and communities to have a finding from the International Criminal Court that crimes against humanity happened in this country, because they know they did, but they would like to have that acknowledgment from the United Nations and from the International Criminal Court. I have also in that obligation said to stay out of the way if someone else is trying to refer the matter to the International Criminal Court.
There is another international body that is coming to Canada that I write about in “Expanding the Circle.” It’s the Permanent Peoples’ Tribunal. Amnesty International and the Native Women’s Shelter of Montreal wrote to the Permanent Peoples’ Tribunal and asked them to come and hold hearings here in Canada on the issue of the missing and disappeared children, and it was accepted. The hearings are going to happen. There is an indictment being prepared that will be served on government and church officials, and international human rights legal experts will be the judges. They haven’t been selected yet. There will be hearings here in the country. I believe it’s in 2026, if my memory serves me correctly. That is a civil society tribunal that has held hearings around the world on different human rights breaches.
But the International Criminal Court has a specific role, and that’s prosecuting individuals. They can’t prosecute the state, but they can prosecute individuals, and we do know that some individuals are still alive.
Senator Sorensen: You piqued my interest when you made reference to provinces that may be funding applications from a foundation as an alternative source of money. Am I understanding that correctly, that whatever you do know about that, it may not be the province directly, but that a community might go to a foundation at a nearby location and apply through the foundation, and then those fund are flowing through the province? An example would be great.
Ms. Murray: No. Individual provinces, some have done better than others.
Senator Sorensen: I want to hear the good ones, or at least one good one.
Ms. Murray: Ontario, for example, has a program. They have been funding communities to do these searches. Communities have received $1 million or $2 million from the provinces to support their searches in addition to funds that they have received from the federal government.
Senator Sorensen: Are they matched funds often?
Ms. Murray: No. Each one is different. It’s up to the community whether they want Canada and the province to talk to each other, to coordinate, or just to do separate applications. So there is that piece, and people have received funding from individual provincial programs. B.C. had a program. I don’t know if it’s still funding anymore. Communities have also applied to foundations for funding, and there have been some foundations that have supported communities. For example, the Law Foundation of Ontario has supported a community with one piece of the work that they are doing, and there are others.
Senator Sorensen: That’s interesting. Thank you.
Senator McCallum: Can you tell me about the role of the Major Crimes Unit? We met with them while they were doing the ground-penetrating radar. My residential school was on provincial land, and we’re now looking at provincial law. The cadaver dogs came in. We’re looking at the provincial law on excavating the bodies, which will happen in the spring because it’s frozen, and then the repatriation of the bodies. With that involvement of the Major Crimes Unit and the role they are going to have to pick up, I’m trying to get an idea of how we can move in that as we’re going. I know Manitoba is redoing their heritage act right now. Do you have any ideas of where we could get help and ask them, “Could you do this?”
Ms. Murray: I’ll speak to the provincial laws first. I write about all the provincial legislation and the problems with the legislation. We have these permit requirements. Communities are having to get permits to do searches on these grounds of former Indian residential schools if they are on provincial lands. Some provinces, such as Ontario, have been putting very onerous conditions on the permit, including, for example, telling communities that they can’t do public announcements of their findings. All these provincial lands — and I have an obligation about this — need to be looked and revised and changed, because none of them were created with the idea that we would do these mass searches for disappeared children in unmarked burials and mass graves. There is a lot in my report about that. I do a comparison of the different legislation. For the repatriation of human remains, again, we have provincial laws, very few, and we have no national law to address the repatriation of human remains or of our ancestors.
With the Major Crimes Unit, each community has its own relationship with the police service. Most that I have heard from don’t want to have anything to do with the police service, don’t want to bring in the RCMP and don’t want to bring in the OPP in. That’s why I have made the obligation for a commission of investigation, because that would be their role: to provide that type of support to a community that is doing this work, to facilitate that forensic investigation that communities are doing, and to coordinate with the other police services domestically and internationally if we’re going to have a forensic investigation and potential criminal charges. But that is each community’s decision to make, whether they want to try and engage with the RCMP or the provincial police service. I have heard from some communities that called the RCMP, and the RCMP said, “We’re waiting for the Special Interlocutor’s report.” They won’t go onto the First Nations territory to support them. We also know that other communities have worked with the RCMP.
I’m not sure what the relationship is with the police service that you’re engaging with.
Senator McCallum: They come to us to speak to us. I think the difference here that makes it more difficult is that when a residential school was on federal land, there is a chief and council there that can look at that. With our school, there are 25 different communities in Saskatchewan and Manitoba. That’s a lot. We really don’t have one person that can speak for us.
The other thing is that we are a strong group. We have met for 30 years. We have a meeting every year, a reunion, and we talk about this stuff. That’s where it’s helping now.
Ms. Murray: I do give an example of what has happened with the Chief Coroner’s office in Ontario, where they created a team — I write about this in my report — which includes OPP officers. We have a lot of stand-alone First Nation police services in Ontario. Their team is OPP officers and First Nations police officers from the stand-alones. They work with any community that asks them to work with them. The Chief Coroner of Ontario has utilized his powers under the Coroner’s Act to access records, and through that work, they have identified double or triple the number of deaths of kids that they have been able to find just through the archival records and their powers. It is an example that I write about as an emerging practice, and they make it very clear that they are not coming in and taking over the investigations. They are supporting the community with the investigation, at their request. I did say to the Chief Coroner of Ontario that it would be important for him to share with other coroners and forensic folks across Canada the work that they are doing so that they can follow suit and do the same in the other provinces and territories.
The Chair: Before concluding, I wish to express my deepest respect and gratitude to Ms. Murray, Mr. Simard and their team for the courage and dedication they have shown in undertaking this challenging and emotional work. Your steadfast commitment to confronting difficult truths and paving the way for meaningful change is a profound testament to your leadership and vision, and we thank you again for that.
The time for this panel is complete, and I wish to thank our witnesses again for joining us today. If you wish to make any subsequent submissions, just please do so within seven days to our clerk, Sébastien Payet. That brings us to the end of our meeting.
(The committee adjourned.)