MNN. AUG. 19, 2024. The Court of Appeal’s Decision Late Friday ruled in favour of McGill University and the SQI [Quebec] on whether the Independent Panel of archaeological experts overseeing the investigation should be called on after human decomposition was detected on-site. McGill and the SQI contracted people to survey the site with GPR, ground penetrating radar, multiple teams of historic human remains detection dogs, and a probe that can detect human decomposition in soil. Up to now, these methods have confirmed the likely presence of human remains in three different areas of the old Royal Victoria Hospital.
We can’t disclose these locations at this stage, but we’re worried that without the oversight of the Panel, which was our clear intention in the Settlement Agreement, these burials might get damaged and destroyed by construction work. That’s what happened with the first target identified by the dogs: the soil was moved around, left outside exposed to the elements, and then sifted by an industrial machine used for mining. Only after using that big mechanical sifter, the archeologists told us that it made the bone fragments too small to identify.
The two other places where the dogs and the probe found evidence of human remains haven’t been investigated yet so we’re extremely concerned about that. McGill and the SQI’s decision to not address any of these findings publicly, and to ignore these results so as to continue their development project, is extremely disappointing. Some of the site has been surveyed with the mandated search techniques, but they only search the areas they’re just about to build on, so a lot of the area still hasn’t been investigated.
It was clear from the start that the Settlement Agreement would entrust an Expert Panel with overseeing the investigation. A few weeks after we all signed it, McGill and the SQI signed contracts with the Panel members without telling us, while letting the Panel members think we were involved in writing them. The contracts had an end date that was not in the agreement, and breached the agreement, which stipulates that the Panel was jointly appointed by us and the developers.
After numerous breaches to the Panel’s recommendations, we submitted these violations of the agreement to the Superior Court, and Justice Gregory Moore agreed with our understanding and said McGill and the SQI’s interpretation of the contract was too narrow. Now the Appeal Court overturned this because of technical problems. But the Appeal Court did not say we were wrong in what we saw or that McGill and the SQI did respect the Agreement. It simply refers to corporate case law related to the court’s jurisdiction in overseeing contracts, and does not address the larger and substantial issues regarding the breaches to the agreement, the failure to implement it in a spirit of reconciliation and the honor of the crown.
The Court of Appeal’s decision to overturn the safeguard order put in place in October 2023 is worrying given the recent findings. A huge obstacle in our fight to protect unmarked burials and find missing children is that our “law” doesn’t work with theirs. The decision they made relies on legal technicalities and precedents set in corporate contractual cases. It doesn’t account for the sensitivity and urgency of the matter here, which is the search for and protection of our children. This is just another example of how the legal system discriminates against us by imposing colonial law on us. It’s the same laws that resulted in our genocide, which goes on still, even after it was acknowledged by the Prime Minister.
Basing this case on corporate law is incredibly inappropriate, because our dispute involves our duty as Indigenous women, Kahnistensera, to protect and find our dead loved ones. The agreement was not a contract between businesses, but a wager for a new relationship between Indigenous people and Canadians. The legal system does not seem ready to appropriately address cases like ours that are about reconciliation and our rights as Onkwehonwe Indigenous people.
We are also hurt and emotionally triggered by the way our search for our children is being ignored for the convenience and financial benefit of these large corporations and the government. If state corporations and the courts set precedents that reinforce the notion that our concerns matter less, it could have catastrophic consequences for Indigenous peoples and their rights worldwide.
The crimes committed against us cannot be investigated by the same institutions that committed them in the past. That’s why we need independent bodies of experts to guide these investigations. We will not stop pushing for our sacred duties to be respected. This is far from the end of the story.
