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David Lametti

‘Special interlocutor’ to help fill legal lacunae around residential schools’ unmarked graves

Wednesday, August 11, 2021 @ 10:59 AM | By Cristin Schmitz


Amid rising demands for criminal investigations into the many deaths of Indigenous children who were forced into residential “schools,” federal Justice Minister and Attorney General David Lametti has pledged to appoint a “Special Interlocutor on Indian Residential Schools Unmarked Burials” to work for justice with Indigenous leaders and communities, and provincial and territorial governments, including by making recommendations to improve federal laws, regulations, policies and practices related to the unmarked and undocumented graves and burial sites that are being found at the former federal- and church-run institutions.

At an Aug. 10 Ottawa press conference where he and three other Liberal cabinet ministers also announced $321 million in “additional support” for mental health, commemoration and other measures to help Indigenous communities respond to, and heal from, their ongoing trauma from residential schools, Lametti confessed that the tragic circumstances made him, at times, envy the broad powers of a U.S. attorney general.

David Lametti, Justice Minister and Attorney General

David Lametti, Justice Minister and Attorney General

“I have heard the calls for justice that have been ringing loud and clear throughout the country since the first unmarked graves were found,” Lametti said. “But the reality is that Canada does not — at least not yet — have the legal framework or tools needed to deal with the complex issues we are confronting now. ...The way we have configured the system is that I don’t have investigative power, and I have only limited prosecutorial powers — we’ve given that to prosecution services at federal and the provincial levels across Canada. And in addition we have the complexity of the federal structure in which these kinds of investigations are undertaken by local police, and police have jurisdiction and then the prosecutions would, working with the police, be undertaken in most cases by provincial prosecution services. So that’s the system that we are actually in,” he observed.

He added, “it may be that that’s something we may want to look at, through the interlocutor, in order to push these kinds of files forward. But for the time being, that interlocutor will open doors, facilitate dialogue amongst all these various actors, and will help us identify these kinds of gaps that might exist in which we might be able to do better down the road. This will be done in a human rights frame. This will be done in a forward-looking frame … with frankly an open mind towards working with international bodies, should they decide to come in, and working with all levels of government, Indigenous and non-Indigenous.”

Lametti noted that the idea for a special interlocutor came from Indigenous leaders, particularly in B.C. and from the Assembly of First Nations, and that this as-yet unappointed person will have a mandate that is established “collaboratively” with Indigenous leaders and communities to ensure that the position’s role and mandate meet their needs.

“Working with Indigenous peoples, this person will assist in charting a path forward; they will identify needed measures and recommend a new legal framework that respects the dignity of burial sites and Indigenous children, in line with the wishes and traditions of communities and families,” Lametti explained. The interlocutor “will evaluate federal laws, policies and practices surrounding unmarked and undocumented graves and burial sites at residential schools and set out responsibilities for their protection. They will facilitate dialogue with provinces and territories — for matters within [the latter’s’] jurisdiction — and with other relevant institutions, such as churches,” he elaborated. “And perhaps most critically, the special interlocutor will focus on establishing a relationship between Indigenous peoples and their governance institutions and Canada that will help us move forward together in healing and in partnership. This means establishing and strengthening trust — trust that must be built from the ground up. It means using culturally appropriate engagement processes that that allow space for open dialogue between Indigenous peoples and government.”

Lametti also emphasized that the role of special interlocutor “may evolve as discussions with Indigenous communities and leaders take place” in the coming weeks.

According to a government backgrounder, “for now, it is expected that the special interlocutor will: identify needed measures and recommend a new federal legal framework that respects and preserves the dignity of burial sites of Indigenous peoples, in line with the wishes and traditions of communities and families. This work will apply Indigenous legal orders, the United Nations Declaration on the Rights of Indigenous Peoples Act, and other international norms and instruments.”

The backgrounder says recommendations from the interlocutor should identify core elements of a new framework that preserve the dignity of Indigenous children and communities, and set out responsibilities for unmarked burial sites, and facilitate dialogue with provinces and territories for matters arising within their jurisdiction and with other relevant institutions, including churches.

The government says the new framework should help build a relationship between Indigenous peoples and Canada as it relates to unmarked burial sites that: facilitates communications between Indigenous peoples and the government; is based on developing and strengthening trust; uses engagement processes that are culturally appropriate; and can serve as a model for future initiatives or lead to recommendations for a new approach to engagement on issues of common concern to the government and Indigenous peoples.”

The special interlocutor is to create a process for the government and Indigenous peoples to “openly engage, communicate and work together on legal issues of common concern.”

The government says information collected by the special interlocutor will help to ensure that Canada’s laws respect and protect unmarked graves and burial sites, and that the government better understands the needs of Indigenous peoples “as we walk the path of healing and reconciliation.”

At the press conference Carolyn Bennett, minister of Crown-Indigenous relations, Indigenous Services Minister Marc Miller and Canadian Heritage Minister Steven Guilbeault announced $321 million in additional support for “Indigenous-led, survivor-centric and culturally informed initiatives and investments to help Indigenous communities respond to and heal from the ongoing impacts of residential schools.”

Of that funding, $83 million will supplement existing investments for community-led processes to research and locate burial sites as well as to commemorate and memorialize the children who died at residential schools.

This is in addition to the $27.1 million which is part of the $33.8 million committed in the 2019 federal budget to implement the Truth and Reconciliation Commission’s Calls to Action 72 to 76 — bringing the government’s commitment to implement the TRC recommendations to $116.8 million.

Bennett said work has also started within the government to establish a National Advisory Committee to advise communities and Ottawa on the work to locate burial sites. That committee, created in consultation with national Indigenous organizations, will consist of Indigenous knowledge holders, and experts in areas such as archaeology, forensics, pathology and mental health, she said.

Marc Miller, Indigenous Services Minister

Marc Miller, Indigenous Services Minister

Residential school buildings hold painful memories, and many communities are currently discussing what they want to do with these structures going forward. Miller said Canada will provide $100.1 million over two years to support community plans to manage the buildings — whether those plans include demolition, rehabilitation or the construction of new facilities on reserve so that activities currently taking place in the former institutions can continue. Communities can access that support, as well as support for the location, commemoration and memorialization of remains, through the Residential Schools Missing Children - Community Support Funding Program.

The government said it remains committed “to ensuring that the tragic history and ongoing legacy of residential schools is never forgotten.” To support these efforts, it said $9.6 million over three years will be provided, in addition to the $13.4 million over five years already announced in the 2021 federal budget. The money will support initiatives that commemorate the history and ongoing legacy of residential schools, including events and activities marking the National Day for Truth and Reconciliation, which is to be observed for the first time Sept. 30, 2021.

The government said an additional $20 million in new funding will be set aside to build a national monument in Ottawa to honour Survivors and all the children who were taken from their families and communities.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Cristin Schmitz at Cristin.Schmitz@lexisnexis.ca or at 613-820-2794.