WARNING: This article talks about abuse of children at residential schools.
Kimberly Murray has opened an uncomfortable but long overdue conversation about justice for Canada’s “disappeared” residential school children, Indigenous leaders say.
Murray, the special interlocutor for missing children and unmarked graves at residential schools, got a standing ovation Tuesday after she released her two-volume final report in Gatineau, Que.
While the report spans more than 1,000 pages, Murray’s overarching finding is that children who died and were buried at residential schools aren’t missing, but were disappeared by the state.
That makes them victims of “enforced disappearance,” a crime against humanity under international law, says Murray, a lawyer and a member of Kanehsatà:ke, a Kanien’kehá:ka (Mohawk) community northwest of Montreal.
Cindy Woodhouse Nepinak, national chief of the Assembly of First Nations (AFN), says “it’s an uncomfortable truth,” but a necessary one.
“It has been a long time coming, and it’s been hidden for so long,” she told CBC News.
Instead of recommendations, Murray concludes her report with a list of 42 legal, moral, and ethical obligations she says governments, churches and other institutions must uphold.
One obligation urges the federal government to appoint an expert panel to explore the possible return of residential school properties, which stood out to the national chief.
“Land back to First Nations, and working towards getting that land back to First Nations, is a step forward,” said Woodhouse Nepinak.
Murray’s obligations also include referring the enforced disappearance of children to the International Criminal Court in The Hague, Netherlands.
Natan Obed, president of Inuit Tapiriit Kanatami, told the gathering Wednesday he is most interested in this call for Canada to submit to international processes.
“If Canada wants to stand firm and tall in an international context, and uphold itself as a nation-state that abides by the rule of law and cares for its citizens, it also has to understand when it does not hold up to those standards that it is accountable,” he said.
Former AFN national chief Ovide Mercredi echoed the focus on accountability during a speech of his own to the gathering on Wednesday.
“Let’s go international,” declared Mercredi, a lawyer who led the Assembly of First Nations from 1991 to 1997.
“Let’s use the vehicles that are there. Even if we’re denied access to them, let’s go there anyway.”
‘Settler amnesty’
In her executive summary, Murray says “settler amnesty and a culture of impunity” has protected perpetrators and shielded the state from accountability.
Obed said “the settler amnesty concept is a long overdue conversation in this country,” one the Truth and Reconciliation Commission “had to tiptoe around in many cases, but one that now in 2024 we can face head on.”
The federal government appointed Murray in 2022 during the national reckoning that followed the locating of potential unmarked graves at former residential school sites.
Justice Minister Arif Virani received the report in person but said he wouldn’t make any promises until he had thoroughly reviewed it, though he did offer his personal response as a parent.
“You can’t hear stories about children,” Virani told reporters, his voice seeming to catch with emotion, “about people being abused, young girls being impregnated and then their babies being taken away and incinerated, and not have a response.”
The federal government estimates about 150,000 children attended residential schools, a government-funded, church-run system of assimilation that operated countrywide for more than a century.
Canada’s Truth and Reconciliation Commission in 2015 concluded the system was a central element of a Canadian policy of cultural genocide. More than 4,100 deaths at the schools had been documented as of 2021.
‘A tremendous contribution’
The question of whether anyone will be prosecuted for enforced disappearance is tricky to answer, says Mark Kersten, an assistant professor at the University of the Fraser Valley.
Kersten, who focuses on international criminal law and worked on Murray’s report, said no international tribunal has ever prosecuted the crime against humanity of enforced disappearance, despite the regularity with which it is committed.
“I think it’s an airtight case in international human rights law,” Kersten said.
“In international criminal law, we have to test these arguments, because they haven’t been tested before.”
The Current18:43Report on unmarked graves at residential schools calls for new laws, reparations
It’s been three years since Indigenous leaders in Kamloops, Cowessess and other First Nations revealed there were hundreds of unmarked graves on the sites of former residential schools. Kimberly Murray, who was appointed special independent interlocutor for missing children and unmarked graves and burial sites associated with Indian Residential Schools, talks about her new report — and the 42 obligations Canadian institutions must meet.
Fannie Lafontaine, Canada Research Chair on International Criminal Justice and Human Rights, told the gathering on Wednesday that Murray made a “tremendous contribution” to the legal vocabulary around residential school abuses.
Lafontaine worked on the controversial legal analysis of genocide produced by the national inquiry into missing and murdered Indigenous women and girls in 2019.
Referencing that backlash, she said that genocide, while typically associated with physical extermination, can include acts that aim to destroy a people as a distinct social unit, like forced sterilization and forcibly transferring children from one group to another.
Murray’s report unpacks how “the violence that is past and ongoing in Canada qualifies as genocide, as crimes against humanity and as enforced disappearance,” Lafontaine said during a panel discussion.
Murray previously released a historical report, included in her final report, outlining what she calls “evidence of genocide,” which she is urging the public to review and draw their own conclusions from.
A national Indian Residential School Crisis Line has been set up to provide support for former students and those affected. People can access emotional and crisis referral services by calling the 24-hour national crisis line: 1-866-925-4419.
Mental health counselling and crisis support is also available 24 hours a day, seven days a week through the Hope for Wellness hotline at 1-855-242-3310 or by online chat at www.hopeforwellness.ca.