Indigenous Rights in the Discovery of Human Remains in Ontario

 …but they [archaeologists and government representatives] wished at the same time to win a recognition from the Native [Indigenous] people that archaeologists were not wicked despoilers of the dead, but really intelligent, disciplined and involved students of the past Dr. Doug Tushingham, Royal Ontario Museum, 1977.

One of the most explicit reminders of the colonialist legacy of archaeology in Ontario is the process set out under the Funeral, Burial and Cremation Services Act (2002). The FBCSA, proclaimed into force on July 1, 2012, is the most recent iteration of the legislation governing the discovery, investigation and disposition of human remains that are accidentally discovered in the province. Its predecessor, the Cemeteries Act (Revised) was an early example of Indigenous participation in decision-making being incorporated into legislation. It included a process of negotiation between Indigenous representatives and a landowner when an “unapproved Aboriginal cemetery” was discovered on their property.  This Site Disposition Agreement process was borne out of concerns with the excavation of Indigenous burials without the consent of Indigenous communities, but the shortcomings of the legislation have been exposed in the intervening three decades by the events at Ipperwash Provincial Park, Douglas Creek (Kanonhstaton) and the Dorchester Village. The Site Disposition Agreement process is specific to the final step in the decision-making as to whether an Indigenous burial is protected in place (established as a cemetery) or removed (disinterred and reinterred in a registered cemetery).

When replaced in 2002, the sections specific to the burial site process in the Cemeteries Act (Revised) only received cosmetic changes. The one substantive change incorporated into the burial site process was not in the legislation itself, but the associated regulation that specified that a professionally licensed archaeologist was required to complete a burial site investigation.  The new legislation did not address several critical shortcomings:

• A professionally licensed archaeologist and a provincial official (Registrar) decide without any consultation whether human remains represent a formal burial;
• A provincial official without any consultation decides which Indigenous community(ies) will represent the Ancestor(s) discovered at a burial site;
• In the case of a determination of an irregular burial there is no required consultation of descendant communities in the decision-making regarding the disposition of the Ancestor(s);
• While the Province can undertake the burial site investigation, avoiding this cost for the landowner, there are no provisions for financial support for Indigenous communities to participate in the investigation process or any subsequent disinterment/reinternment or establishment as a cemetery.

The legislative focus continued to be on the last steps of the process.  This focus is best understood in relation to the historical events that led to the original formulation of the burial site provisions.  However, in our view, the current regulatory schema addressing burial sites is incompatible with an environment of Truth and Reconciliation and responsibilities borne of the Duty to Consult.  The shortcomings above have become critical failures in advancing the Calls to Action of the Truth and Reconciliation Commission and UNDRIP’s free, prior and informed consent for Indigenous peoples with respect to impacts to their Ancestors.  This week’s blog is part one of a two part blog and addresses the historical development of burial site legislation.

Historical Context

Proclamation Upper Canada - Whereas many heavy grievous complaints have of late been made by the Indians of depredations committed by some of his Majesty's subjects and others upon their fisheries and burial places and of annoyances suffered by them by uncivil treatment in violation the friendship existing between his Majesty and the Indians as well as in violation of decency and good order. Be known therefore that if any complaint shall hereafter be made injuries done to the fisheries and to the burial places of the Indians or either of them and the persons can be who misbehaved himself or themselves in manner aforesaid person or persons shall be proceeded against with the severity and a proper example made of any herein offending. Given under my hand and seal of arms at York this fourteenth day of December in the year of our Lord one thousand seven hundred and ninety seven and in the thirty eighth year of his Majesty's reign Peter Russell President administering the government By his Honour's command Alex Burns Secretary (Scadding 1878:400).

Indigenous communities in Ontario have been expressing concerns with respect to burial sites since the late 18^th century as illustrated by the proclamation issued by Peter Russell in 1797.  The original Cemeteries Act (1915) and Ontario Heritage Act (1974) and their predecessors had no provisions for the handling of the discovery and excavation of burial sites. From the 19^th century until the late 1970s archaeologists excavated hundreds of Indigenous burials sites in the name of scientific research with little or no involvement from descendant communities. Indigenous burials were even put on display, an example being an open air exhibit at Serpent Mound Provincial Park. The exhibit and park are now closed.

1977 to 1990

A turning point occurred in October 1977. A weekend series of meetings was held at the Native Canadian Centre of Toronto between archaeologists, Indigenous communities and the provincial government to outline issues with the treatment of unmarked Indigenous burial sites in Ontario (Savage 1977). This event was borne out of a crisis in Grimsby, Ontario the previous year that culminated in the November 2, 1976 arrest of Dr. Walter Kenyon of the Royal Ontario Museum by Six Nations community members as he was excavating a burial site accidentally discovered during construction. The Indigenous community’s concerns related to the provisions specific to the closure of cemeteries under the Cemeteries Act and the unilateral decision to remove the burial rather than protect it in place.

During the 1977 meetings, Indigenous communities were steadfast in their position that the burials of Ancestors not be disturbed. The archaeological community acknowledged that there were problems with the excavation of burials, but argued the scientific benefits of burial excavation when done under strict legislative conditions. The government took a neutral position citing complicated overlapping legislation. The meetings concluded with a number of recommendations from each of the working groups.

The recommendations of the Legal and Legislative Aspects working group are of particular interest, including that archaeologists adopt as procedures proposed laws set forth in the Union of Ontario Indians Information Circular of May 5^th, 1977.The group included:  Steve Otto (then Director, Ministry of Culture and Recreation), Paul Williams (Union of Ontario Indians), Ray McCoy (Ministry of Consumer and Commercial Relations), Elizabeth McLuhan (Indian Community Secretariat), Elizabeth Snow (Parks Canada) and Earl Commanda.  The proposal recommended that:

1. No Indigenous cemetery will be excavated unless the descendants of the dead people consent. If no descendants can be found, then the consent of the nearest Band Council would be required.
2. There will be standards of dignity imposed on persons digging in Indigenous cemeteries and dealing with dead bodies.
3. There will be more severe penalties imposed on persons removing bodies without permits. (Angus, Stonehouse & Co. Ltd. 1977: 21)

These recommendations focused on the pivotal decision of whether a burial was protected in place or removed. As revisions to the Cemeteries Act proceeded slowly, the first of these recommendations would form the ad hoc basis of practice for over a decade. While legislative change had not occurred, in the late 1970s the Ministry of Culture and Recreation quietly changed its archaeological licences to exclude excavation of burials.

At the same time as these meetings, Kenyon published his own opinion on the crisis in an article entitled “Some Bones of Contention: A Neutral Indian Burial Site at Grimsby” in Rotunda, the magazine of the Royal Ontario Museum in 1977. He summed up the situation as:

The site remained closed for the next two months while legal, moral and political issues were debated. Charges and counter-charges were hurled about with reckless abandon. Politicians tightened up their ranks, and retreated behind the ramparts of bureaucratic silence. Moral rights were confused with legal rights; firm stands were taken; heroic postures were assumed; generals announced with reluctant glee that they might not be able to control the troops; and ultimatums and theses were nailed to the windmills of rhetoric. (Kenyon 1977: 9)

Changes to the regulatory culture moved slowly as government and academic archaeologists continued to complete the majority of the investigations following the accidental discovery of human remains. In 1982, the ROM and Kenyon published the results of the Grimsby Cemetery excavations including images of sacred objects and burials in the process of excavation (Kenyon 1982) with little mention or acknowledgement of the incident of his arrest and dismissing Indigenous community concerns as social and moral and therefore unimportant (Kenyon 1982: 7).

The practice in the interim period between the meetings in 1977 and the passing of the Cemeteries Act (Revised) in late 1990 is documented in the proceeding of a 1985 conference in London, Ontario on archaeological consulting in the province. Dr. Michael Spence lamented the flaws in the process related to the accidental discovery of human remains (Spence 1986). He describes a process of five separate permissions required before exhumation of a burial could proceed:

1. Consent of the nearest Indigenous community including not only the nearest Band Council, but also descendant communities.
2. Cemeteries Branch confirmation following the provisions set out for the closure of a cemetery.
3. Local coroner looking at the cause of death and determination of forensic interest.
4. Medical officer of health to ensure that there is not a public health risk.
5. Ministry of Citizenship and Culture approval of the excavation (Spence 1986).

The process continued to focus on the decision to protect in place or excavate with Indigenous communities participating later in the process after key decisions had been made by the archaeologists and bureaucrats specific to classifications of cultural affiliation and intentionality of the burial.  Notably, Spence also includes mention of each Ancestor being offered tobacco and its spirit being assured that no harm was meant (Spence 1986:93). There are very few accounts of these and other forms of traditional care being provided for Indigenous burial excavations from this period.  Spence also noted the challenges of identifying the appropriate community to act as a representative and the inconsistency in this process.

1990 to 2007

Prior to the passing in 1990 of Cemeteries Act (revised), consultations were held with the Chiefs of Ontario and the Ontario Archaeological Society (OAS 1989). The proposed revisions included, for the first time, legislated requirement for Indigenous community involvement in the discovery of human remains judged to be intentionally buried.

The 1990 revisions to the Cemeteries Act related to burial sites, consisted of seven sections which codified and built upon the practices developed from the 1977 recommendations.  Specifically:

• A definition of a burial site “means land containing human remains that has not been approved or consented to as a cemetery in accordance with this Act or a predecessor of this Act.”
• Prohibition on the disturbance of a burial site or artifacts associated with human remains except on instruction from the coroner, pursuant to a site disposition agreement or a person conducting the investigation of a burial site.
• Requirement to immediately notify the police or coroner.
• Allowing the Registrar to order the investigation of a burial, requiring only minimal disturbance during an investigation and provision in case of hardship.
• Requiring a declaration as 1) unapproved Aboriginal peoples’ cemetery; 2) unapproved cemetery; or 3) an irregular burial. It also includes definitions of each.
• Site disposition agreement process including arbitration should agreement not be reached.
• A provision that the owner of land that contains an irregular burial ensuring that remains found are interred in a cemetery.

The proclamation into force of the Cemeteries Act (Revised) was followed by Regulation 133/92 implemented on April 1, 1992 which provided more details on the process including that the decision- making with respect to identified irregular burial sites beyond Section 74, which required the owner ensure the remains found were interred in a cemetery, was at the sole discretion of the landowner.  Another important provision of the regulation: the provision that the Cemeteries Act (Revised) 1990 prevailed over Part VI of the Ontario Heritage Act 1990 which essentially limited the previous requirement specific to compliance with the OHA through the Ministry of Culture and Recreation for the excavation of a burial site.

The rapid development of consulting archaeology in the province also resulted in a shift towards private archaeological consultants completing more of the burial site investigations. However, the process continued to involve Indigenous communities as representatives of the deceased on the pivotal decision of whether a burial was protected in place as a cemetery or relocated.

In 1998, a best practices document was developed with support from the First Nations Burial Committee of Toronto to assist with understanding the proscribed process addressing the accidental discovery of human remains. As noted in the document, the practice outlined was equally applicable to discoveries of human remains across the province. This guide was issued by the Office of the Chief Coroner on July 15, 1998 and outlined the legislative context for addressing the accidental discovery of human remains and guidance on how to navigate the process. This document represents the first attempt to provide information on the process for a burial site discovery from initial discovery through to final disposition of the burial.

Throughout the 1990s and early 2000s, burial site investigations continued to be undertaken by both consultant archaeologists and government archaeologists.  However, the practice of archaeologists employed by the Province conducting burial site investigations ended abruptly following the ministry excavation of a burial under a cottage on Jett Island (Sherratt and Junker-Anderson 2010) and the subsequent volunteer excavation. The events of Jett Island are themselves worthy of  a thorough explanation not attempted here.

During the same period, the Ipperwash Inquiry was shedding light on the events of the early 1990s at Ipperwash Provincial Park and highlighting flaws in the process related to heritage and burials.  The outcome of the Ipperwash Inquiry made seven recommendations specific to heritage and burial sites (Government of Ontario, Volume 3, 2007):

• 22. The provincial government should work with First Nations and Aboriginal organizations to develop policies that acknowledge the uniqueness of Aboriginal burials and heritage sites, ensure that First Nations are aware of decisions affecting Aboriginal burial and heritage sites, and promote First Nations participation in decision making. These rules and policies should eventually be incorporated into provincial legislation, regulations and other government policies as appropriate.
  23. The provincial government should ensure that the Funeral, Burial and Cremation Services Act (2002) includes the same appeals process for all types of cemeteries and burials and an obligation to consider Aboriginal values if a burial site is determined to be Aboriginal.
  24. The provincial government, in consultation with First Nations and Aboriginal organizations, should clarify the meaning of “Aboriginal values” in all Class EA documents and other guidance and policies applicable to public lands
  25. The provincial government, in consultation with First Nations and Aboriginal organizations should determine the most effective means of advising First Nations and Aboriginal peoples of plans to excavate Aboriginal burial or heritage sites.
  26. The provincial government should encourage municipalities to develop and use archaeological master plans across the province.
  27. The provincial government should prepare plain language public education materials regarding Aboriginal burial and heritage sites.
  28. The provincial government should work with First Nations and Aboriginal organizations to develop an Aboriginal burial and heritage site advisory committee.

These recommendations echo the 1977 recommendations 30 years prior, highlighting the intransigence of the system to changes long anticipated. Indeed, in the intervening decade since the release of the Ipperwash Inquiry recommendations once again very little tangible progress has been made.  Additionally, the Ipperwash Inquiry failed to identify the shortcomings related to Indigenous community consultation late in the overall process and lack of capacity funding to participate in the process.

TMHC would like to acknowledge the assistance of:

• Kevin Restoule, Government Relations Coordinator, Anishinabek Nation;
• Michael Spence, Professor Emeritus, Western University
• Neal Ferris, Lawson Chair of Canadian Archaeology, Western University
• William Fox, Adjunct Professor, Trent University
• Dana Poulton, D.R. Poulton & Associates

<END OF PART ONE>

PART TWO

Part One References

Angus, Stonehouse & Co. Ltd.

1977       Meeting of Ontario Indian Groups and Archaeologists (5 Parts). Unpublished transcript on file, Ontario Ministry of Tourism, Culture and Sport.

Government of Ontario

1990       Ontario Heritage Act (R.S.O). Available from: www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o18_e.htm

1992       Cemeteries Act (Revised) O. Reg, 133/92. Available from :  https://www.canlii.org/en/on/laws/regu/o-reg-133-92/latest/o-reg-133-92.html

2004       Ontario Heritage Act  O. Reg. 170/04 Definitions. Available from: www.e-laws.gov.on.ca

2005       Cemeteries Act (Revised) (R.S.O.). Available from: www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c04_e.htm

2006       Ontario Heritage Act  O. Reg. 8/06 Licences Under Part VI of the Act — Excluding Marine Archaeological Sites. Available from: www.e-laws.gov.on.ca

2007       Report of the Ipperwash Inquiry. Available from: www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/

Kenyon, Walter A.

1977       Some Bones of Contention: the Neutral Indian Burial Site at Grimsby. Rotunda 10:3 (1977): 4-13

1982       The Grimsby Site: A Historic Neutral Cemetery.  Toronto:  Royal Ontario Museum.

Savage, Howard

1977       Meeting of Representatives of Indian Groups and Archaeologists of Ontario.  Arch Notes 77 (7): 34-35.

Scadding, Henry

1878       Toronto of Old:  Collections and Recollections. Toronto: Willing and Williamson

Sherratt, J. T. and Chris Junker-Anderson

2010       The 2002 and 2003 Stage 3/4 Archaeological Assessment of the Jett Island Burials, Trent River/Rice Lake Carrying Place Site (BbGk-11) Lot 30, Concession 10 Township of Brighton, County of Northumberland, Ontario. Report on File, Ministry of Tourism, Culture and Sport.

Spence, Michael

1986       Methods, Ethics and Politics in Contract Osteology.  In Archaeological Consulting in Ontario: Papers of the London Conference 1985. Edited William A. Fox.  Occasional Papers of the London Chapter, Ontario Archaeological Society Inc. Number 2.  Pp. 89-102.