Indigenous Rights in the Discovery of Human Remains in Ontario II

As we wrote in part one of this blog last week, 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, saving 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/reinterment or establishment as a cemetery.

The legislative focus continued to be on the last steps of the process. As outlined in Part 1 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 the current 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 2 which describes the current context for burial site investigations and outlines in more detail some of the shortcomings identified above.

Current Context

Article 11

1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature….

Article 12

1. Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains… (UNDRIP 2007: 6).

Concurrent with results of the Ipperwash Inquiry were being released in 2007, the Universal Declaration of the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations General Assembly.

However, it would be nearly a decade before Canada adopted UNDRIP. How UNDRIP will be implemented in the Canadian context is only now slowly beginning to be realised and in the context of the Calls to Action from the Truth and Reconciliation Commission.

Since 2007 there has been little substantive change in the process specific to addressing the discovery of human remains. In 2010 the Anishinabek Nation passed a resolution (Resolution No. 2010/31) in 2010 with respect to “Consultation and Accommodation on Burial, Heritage, Cultural and Archaeological Sites” (Restoule, pers. comm) and more recently they have created a toolkit to assist Indigenous communities with understanding their rights and the issues related to heritage and burials. This document provides a comprehensive overview of the relevant legislation and policies. However, this document also highlights the critical need for legislative changes to provide Indigenous communities earlier participation and better protection of their rights with respect to cultural heritage and burials.

Efforts like those of the Anishinabek Nation represent the most significant progress towards plain language public education materials contemplated by Recommendation 27 of the Ipperwash Inquiry. The establishment of a heritage and burials committee by Indigenous partners was another positive step (Citation).

Today, the FBCSA continues to be the primary legislation related to the accidental discovery of human remains. As noted above, the FBCSA requires that a professional licensed archaeologist be hired to complete burial site investigations. The investigations of burials and the discovery of human remains are the jurisdiction of the Registrar of Cemeteries, Consumer Protection Branch, Ministry of Government and Consumer Services (MGCS). The FBCSA states that the Act prevails over Part VI of the Ontario Heritage Act. However, this is understood to be only the case when there is a conflict. The licensed archaeologist is expected to adhere to the terms and conditions of their licence which includes adherence to the Standards and Guidelines for Consultant Archaeologists (2011). These standards require that Indigenous communities be consulted in Stage 3 of an archaeological assessment. A burial site investigation is typically a Stage 3 assessment, but no clear direction has been provided with respect to whether this engagement is considered to be in conflict with the Site Disposition Agreement process.

Under the FBCSA Regulation 30/11 it is required that a professionally licensed archaeologist complete the burial site investigation when human remains are discovered. The licensed archaeologist is tasked with providing the MGCS with the following information:

1. A determination of the probable cultural origin or religious affiliation of the persons whose remains are interred and the basis upon which it is made.

2. A description of the boundaries of the burial site.

3. Details of the style and manner in which the human remains are interred.

4. A description of any artifacts that, in the opinion of the investigator, form part of the burial site.

5. An opinion as to whether the burial site was set aside with the apparent intention of interring human remains in accordance with cultural affinities and the basis upon which the opinion is made.

6. Information relevant to the preparation of a site disposition agreement. O. Reg. 30/11, s. 174 (2).

Rarely is the information provided by the licensed archaeologist informed by consultation with the Indigenous communities who would may have an interest. It is not until key decisions have been made that Indigenous communities have a role in the negotiation of a site disposition agreement. While all the required information is critical, the determination of probable origin and the opinion as to whether the burial was intention are determining factors and have the most risk for impacts to the rights of Indigenous peoples.

One development was the release in November 2010 of the Standards and Guidelines for Consultant Archaeologists (2011). When first drafted, the Standards and Guidelines included a section on the accidental discovery of human remains. The text was nearly verbatim from the 1998 document released as a best practices document. This section was removed in 2009 draft that was released as concerns were expressed including that there had been insufficient consultation on this section. As a result the document released in 2010 did not include any direction with respect to the intersection between the FBCSA and the OHA. This lack of direction has resulted in a continuation of the highly varied practice by professionally licensed archaeologist engaged to complete burial site investigations.

MTCS subsequently released guidance clarifying that the investigations of burials and the discovery of human remains are the jurisdiction of the Registrar of Burial Sites, Consumer Protection Branch, Ministry of Consumer Services as under Section 87 of the Funeral, Burial and Cremation Services Act (2002) it states that the Act prevails over Part VI of the Ontario Heritage Act. However, this is only the case when there is a conflict and that the licensed archaeologist, in so much as possible, is expected to adhere to the terms and conditions of their licence which includes adherence to the Standards and Guidelines for Consultant Archaeologists (2011).

The new requirements for archaeological assessments included numerous technical requirements for archaeological assessments. These requirements also included engagement with Indigenous communities. This requirement holds the potential to take a step towards addressing the types of concerns outlined below. However, it is not consultation and is not directed by the primary legislation of the FBCSA.

Determination of Cultural Origin

The determination of the cultural origin of a burial site follows standard archaeological methods. The application of these methods, generally following the Ministry of Tourism, Culture and Sport’s Standards and Guidelines for Consultant Archaeologists (2011), does not require the archaeologist to include consideration of information or perspectives from relevant Indigenous communities. In some instances the cultural affiliation of the burial can not be determined and the overlapping nature of traditional territories does not permit the identification of a single descendant community resulting in multiple communities being named as representatives (ASI 2018). However, in some instances, different perspectives by the archaeologists themselves can contribute to the challenge of determining cultural origin.

The Bradford East site (BaGv-74) is one such example. The archaeologist who investigated the Bradford East site determined that the archaeological site was a seasonally occupied Algonkian site. However, the presence of ceramic vessels and pipes as well as other artifacts typically associated with Huron-Wendat could have resulted in a different determination of the cultural origin of the site as ancestral to the Huron-Wendat or the inclusion of both communities. Based on the determination that the site was Algonkian, when two burials were discovered, the Registrar from the MGCS accepted this determination of the probable cultural origin for the burials and named the local Algonkian First Nations as representatives for the deceased. A different conclusion may have led to the Huron-Wendat descendants being named as representatives, or both communities being named.

There is little that requires the MGCS to evaluate the determination that has been made, or to consult with potentially interested communities on the determination in order to ensure there is consensus with the determination that has been made. Further, MGCS does not employ anyone in the Cemeteries Regulation Branch qualified as an archaeologist or physical anthropologist. This creates a risk of excluding potentially interested communities from the process to determine the disposition of Ancestor(s).

Determination of Whether a Formal Burial

While the determination of cultural origin is important, so too is the determination as to whether the human remains found were part of an intentional burial. Again, this decision/conclusion is at the sole discretion of the licensed archaeologist completing the burial site investigation, but has the potential for significant impact on the rights of Indigenous communities. As with the determination of origin, there is nothing that requires the MGCS to evaluate the quality of the decision/conclusion reached as to whether a discovery is an intentional burial.

The Chase Wesson site (BdGw-38) is an example of the impact a decision by the licensed archaeologist can make on the role of the Indigenous community in the decision making about a burial site. During Stage 4 excavations of the site identified as a Huron-Wendat village human remains were discovered and a burial site investigation initiated. The licensed archaeologist concluded that the human remains found did not represent a formal burial. This conclusion resulted in the declaration of the site as an Irregular burial site and the potential for any descendant communities with an interest to be excluded. Under the FBCSA, irregular burial sites do not require any consultation with descendants allowing the landowner the discretion to determine the disposition of the Ancestor(s).

But what is the impact these shortcomings in the FBCSA can have on a community? In the case of whether it is a formal burial, it has the potential to exclude Indigenous communities from the decision making entirely. It does not allow for culturally appropriate treatment and handling of the Ancestor(s). It also allows other factors, such as budget consideration to inform the decisions about the ultimate disposition of the Ancestors.

The determination of the origin also has the potential to exclude an Indigenous community from the disposition process. It also has the risk of not identifying the most relevant community allowing for the traditional care protocols of that community to be performed.

Funding for Participation

While early participation in decision making is key, perhaps the most significant barrier to Indigenous communities is the lack of funding for communities. The FBCSA and its predecessors includes a hardship clause for landowners, but there is no provision for Indigenous communities to participate in the process. The hardship clause allows for the Registrar to assume the costs of archaeological assessment. There are no provisions for financial aid to communities to participate in the site disposition process or for the costs of the reburial process.

There are many examples where the including the investigation at 1555 Old Orchard Road in Hastings (Jackson 2014), or 46 Oxbow Road in Brantford (TMHC 2014) where the Registrar has taken on the cost of the investigation while the communities are left to bare the costs of participation in the process. However, there are many more where the landowner has also been required to bare the cost. This also has lead to variability in how the assessments are completed including a recent increase in academic archaeologists (Hawkins 2018, Conolly 2011) and volunteers efforts.

Looking Forward

The original burial site provision in Ontario legislation was born out of the crisis at the Grimsby site in 1976. As a result the excavation of burials in the province was no longer the sole discretion of archaeologists and physical anthropologists. The events at Ipperwash again demonstrated community knowledge should not be discounted in favour of western scientific methods. The incidents at Hunter’s Point and in Owen Sound documented through the Ipperwash Inquiry provide valuable precautionary reminders of the need for change. The recommendations of the Ipperwash Inquiry held the potential to address the shortcomings through legislative reform and public education with respect to burials. But similar to the Provincial Policy Statement changes in 2014 (see our PPS post), the measures (or lack thereof) have fallen well short. Ideally, a new crisis will not be required before necessary changes are introduced.

As we have previously written, we feel it is important to recognize that our position as "experts" and "stewards of the past" is changing as descendant communities rightfully seek more input and control over the management of the archaeological record. The same is true for Ancestors. In our view, it is time for Indigenous communities to have a role in providing information about human remains that are discovered including the determination of cultural origin and whether human remains were part of a formal burial with respect to the FBCSA process.

References

AMICK Consultants Limited

2017 Report on the 7 May 2009 Discovery of Human Remains Stage 4 Archaeological Investigations of the Chase-Wesson Site (Bdgw-38) Block 62 of the proposed Huronia Equestrian Estates Subdivision (43T-89012) Lot 6, Concession 2 (Geographic Township of Flos) Township of Springwater, County of Simcoe.

Archaeological Services Inc.

2018 STAGE 3 BURIAL SITE INVESTIGATION BIRD RESIDENCE #92 32ND STREET SOUTH PART OF LOT 3, CONCESSION 15, SUNNIDALE TOWNSHIP, TOWN OF WASAGA BEACH, SIMCOE COUNTY, ONTARIO. Report on File, Ministry of Tourism, Culture and Sport.

Carruthers, Peter

1998 The Discovery of Human Remains – Best Practice. Arch Notes 4(2): 10-15.

Conolly, James

2011 Determination of the Burial at BcGo-17, Camp Maple Leaf, Jacob's Island, Pigeon Lake, Township of Galway-Cavendish and Harvey, Peterborough County, Ontario. Report on File, Ministry of Tourism, Culture and Sport.

D.R. Poulton & Associates

2005 The 2004 Stage 3-4 Archaeological Investigations of the Springbrook Site (AjGw-329), Lots 6 & 7, Concession 3 W.H.S., Draft Plan 21T-01032B and 21T-04004B, City of Brampton, Geographic Township of Chinguacousy, Regional Municipality of Peel, Ontario.

Fox, William

2014 Grave Reminiscences. Strata Newsletter of the Peterborough Chapter of the Ontario Archaeological Society 4(1): 1, 7-14.

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/

Hawkins, Alicia

2018 Report on the Stage 3 Burial Site Investigation at Carlton Lake, Timmins (Ward 1(Carscallen), Section 17449) Under Licence P081-0022-2018. Report on File, Ontario Ministry of Tourism, Culture and Sport.

Jackson, Lawrence

2014 Stage 1 and 2 Burial Investigation at 1555 Old Orchard Road, Part Lot 6, Concession 9, Geographic Township of Ashodel, Peterborough County, Ontario. Report on File, Ontario Ministry of Tourism, Culture and Sport.

Ministry of Tourism, Culture and Sport

2011 Standards and Guidelines for Consultant Archaeologists. Queen’s Printer for Ontario, Toronto.

Poulton, D.R., C. F. Dodd, C. W. Neill, M. W. Spence and J. T. Sherratt

2010 The Ways to Dusty Death: Three Projects Involving the Recently Emeritus Professor Michael W. Spence. Ontario Archaeology No. 85-88/London Chapter OAS Occasional Publication No. 9

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, M.

2017 The Identification and Assessment of Mortuary Features: Three Case Studies from Ontario. Advances in Archaeological Practice 5(4): 340-350.

Stewart, Frances

2014 Revised Report on the Stage 4 Salvage Excavations of Two Desecrated Human Graves at the Bradford East Site (BaGv-74). Report on File, Ontario Ministry of Tourism, Culture and Sport.

Timmins Martelle Heritage Consultants

2014 Human Remains Discovery and Cemetery Investigation – AgHb-508 46 Oxbow Road Part 1- Plan 2R-6754 Part of the Lefferty Tract Geographic Township of Brantford County of Brant. Report on File, Ontario Ministry of Tourism, Culture and Sport.

Williamson, Ronald & Susan Pfeiffer (eds)

2003 Bones of the Ancestors: The Archaeology and Osteobiography of the Moatfield Ossuary. Mercury Series Archaeology Paper 163, Canadian Museum of Civilization. Gatineau, Quebec.

TMHC would like to acknowledge the assistance of:

* Kevin Restoule, Government Relations Coordinator, Anishinabek Nation;

* Dr. Michael Spence, Professor Emeritus, Western University

* Dr. Neal Ferris, Lawson Chair of Canadian Archaeology, Western University

* William Fox, Adjunct Professor, Trent University

* Dana Poulton, D.R. Poulton & Associates