Access to Justice: Residential schools must be part of Canada's nation-building narrative

By Tricia Logan

September 2021

Tricia Logan

I have been invited to be a contributor to the Right Honourable Beverley McLachlin's Access to Justice column in The Lawyer's Daily. I am sharing my perspective on the new era we are entering in our relationship to the Indian residential school system in Canada.

On May 27, 2021, Tk'emlúps te Secwépemc First Nation publicly released the results of a preliminary report on an investigation of the unmarked, mass grave located near the site of the Kamloops Indian Residential School. Knowledge of the burials near the school apple orchard and school grounds have been known to the survivors, their families and the surrounding communities since the time that the school was in operation. What emerged as news and a recent "discovery" was the accompanying  ground penetrating radar (GPR) reports, confirming a great deal of what Tricia Logan the community already knew about the number of children who were buried in unmarked or mass graves. After that report, First Nations, Métis and Inuit communities across Canada contributed stories, evidence and information gathered from GPR and archaeological investigations to an emerging, changing dialogue in Canada. Communities have initiated and have also continued or increased investigations into former sites of residential schools across Canada.

As an historian of residential schools in Canada I have spent two decades sharing in the honour and the responsibility of recording and listening to the stories of residential school survivors and intergenerational survivors. These are not new stories that are being surfaced, but there is a new response and a new call to care for the children who did not return home from the schools.

The narrative of how Canada became a nation has been confronted by survivors, elders and Indigenous historians and it is no longer acceptable to propagate a nation-building narrative disconnected from the role residential schools played in forcibly removing Indigenous nations from their homes. Survivors and Indigenous communities have transformed the historical narrative of the school system and of Canadian history. This has bearing on our colleagues in law and justice who call for transformation to address over-representation of the impacts of historic trauma in Canada.

Following the Royal Commission on Aboriginal Peoples (RCAP) in 1996 and nearly 20 years later during the final report of the Truth and Reconciliation Commission (TRC) in 2015 and later, by the reports of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) in 2019, another shift occurred. A post-TRC era (2015-2020) now transposes the conversation on accountability beyond the Indian Residential School Settlement Agreement (IRSSA) to justice for crimes and mass violations committed at the schools, especially those relating to deaths and burials.

There was a national reaction to the "new" information shared publicly on the burial sites at residential schools. A new conversation that also reframed the term "Survivor," since those who survived are once again speaking as the voice of those who never returned home. Additionally, their voices are representing an unquantifiable number of children who went missing from the residential schools, who never returned home but who may not have died. Thousands of children were discharged or ran away from the schools and never returned to their communities. Some found employment and new homes in urban centres and many also represent the disproportionate number of survivors and intergenerational survivors unable to return home, incarcerated or tied to the justice system in Canada. The cyclical nature of the histories and enduring legacies of residential school, colonialism and justice are undeniable.

Survivors remind us that, from the time students of a residential school left the schools to go home, or were discharged as pupils from the schools, they carried with them stories of their classmates, friends and family members who died in the schools. The residential schools, now notorious for high rates of physical and sexual abuse, neglect, malnutrition, disease and death had a day-to-day life that was often traumatic and full of injustices. There were also overwhelming kindnesses and care at the schools, often by fellow classmates, but also teachers and clergy. In systems of schools operating over 150 years and in over 150 locations across Canada, there are complexities, best explained by those who experienced the schools.

The Indian residential school system operated in Canada from the late 1800s until the last school closed in 1997. Knowledge of student deaths has remained a part of the history of the schools and histories of First Nations, Métis and Inuit communities in Canada for well over century. These new investigations bring new or renewed attention also to the Canadian contextualization of genocide, settler-colonial genocide, unmarked burials and mass graves.

Genocide has been part of a core vocabulary utilized by Indigenous Nations since its origins in 1948. Indigenous peoples have firm, established definitions of genocide and many are used to describe their time at residential school and affiliated systems of colonial control. However, there is rarely an agreement on how to use or pursue definitions of genocide in a Canadian context outside of Indigenous communities. A social, political, economic and cultural understanding of genocide does not always merge with legal definitions. International law and the United Nations Convention on the Prevention and Punishment of the Crime of Genocide often steer the canonical definition of the crime of genocide, but colonial and settler colonial genocides force us to redefine what genocide means to Indigenous nations. There is also a concurrent call to genocide scholars from all disciplines to decolonize genocide studies and consider genocide as defined from Indigenous perspectives and using Indigenous epistemologies.

Moreover, there are now calls for an independent investigation into the crimes affiliated with the mass burial sites at residential school, including the appointment of an independent, Special Rapporteur. Findings of both the TRC and the MMIWG inquiry reinforce the importance of independent investigations in order to assure that the governments of Canada and the provinces, the RCMP and both Catholic and Protestant church entities are not designated as investigators into their own crimes.

The Truth and Reconciliation Commission of Canada released a report on the Missing Children and Unmarked Burials of residential schools and conducted research during the commission into confirming a number of student deaths. At the end of the commission that work carried on at the National Centre for Truth and Reconciliation and in response to the Calls to Action, they have maintained a Memorial Registry, with approximately 4,000-plus recorded student deaths. The numbers represent only those that have been found recorded in accessible archival records, obtained during the time of the TRC. Records still being retained by Catholic and Protestant church entities, provinces, territories and the federal government are of increasing and immediate interest. Survivors, intergenerational survivors and their families have demanded more information for several decades. With knowledge that their relatives, friends and classmates died without confirmation of where they were buried, how they died and if those burials also constituted a crime are all questions remaining unanswered.

This knowledge is coupled with calls for justice or accountability for these deaths which remains central to the emerging investigations. Communities and individuals have held ceremonies and have honoured and commemorated the children who died at the schools. Many still wait though, as calls for responsibility, for justice and for access to information expand across the country. The calls for justice affiliated with the burial sites and cemeteries are inherently tied to a need to address community trauma, healing and in respect for individual community ceremonies that have been put on hold, sometimes for decades, awaiting more information.

Misinformation has also recently fuelled violence, denial and fear, distorting the safe spaces for truth. The promotion of truth and safety has been carried by survivors, but that effort to bear truths still needs to be shared. Responses to violent acts and denialism unfairly overshadow the healing and strength of survivor communities. There is a nearly overwhelming course of work ahead to support families and communities, to support independent investigations and to take care and respect on these burial sites. If we listen to the entire message though, we may also hear the shared teachings and knowledge on healing, on resistance and on how to face trauma, grief and loss with respect.

First Nations, Métis and Inuit Nations have provided support for one another and through communities of survivors. They lead this work and have distinct support systems dedicated to addressing community-wide trauma. Strength in communities has provided leaders of all ages and in all forms of leadership to emerge. First Nations, Métis and Inuit communities will lead this new era but the call for support is clear.

Tricia Logan assistant professor at the UBC School of Information and a visiting researcher at the Indian Residential School History and Dialogue Centre. Tricia is a Métis scholar with more than 20 years of experience working with Indigenous communities in Canada. She joined the Centre in 2019 and has held roles at the National Centre for Truth and Reconciliation, the Canadian Museum for Human Rights, the Métis Centre at the National Aboriginal Health Organization, the Aboriginal Healing Foundation and the Legacy of Hope Foundation.