March 2003

* Russell Raikes is a Partner in the law firm of Cohen Highley LLP. Russell gratefully acknowledges the assistance of Ms. Alexandra Rosu in the research necessary for this paper.

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The protection, retention and return of the remains of ancestors of Aboriginal peoples is a very sensitive issue which, in Canada, has resulted in significant conflict. There have been at least two major armed conflicts between Indigenous peoples and police over the protection of Indigenous burial grounds. In his report from a judicial inquiry arising from one of those conflicts, Mr. Justice Linden of the Ontario Supreme Court wrote:

“Burial practices touch the fundamental personal, cultural, religious and philosophical ideas and beliefs of both Aboriginal and non-Aboriginal peoples.

Aboriginal heritage and burial sites become flashpoints for an occupation or protest when Aboriginal peoples believe that they must act to protect a site from desecration. This often happens when a public or private land owner or developer refuses to acknowledge an Aboriginal burial place or heritage site or refuses to consult with Aboriginal peoples about the disposition of the site. The Oka standoff in 1990 is the most widely known confrontation about an Aboriginal burial site.”

This paper will examine the applicable protections in Canada for Indigenous remains in two contexts: (1) the discovery of remains in situ; (2) remains in the possession of third parties, usually museums or universities.

Remains Discovered In Situ

Canada is a comparatively new country, having been “settled” only within the last 300 years. That is not to say, however, that the lands were unoccupied prior to European settlement. To the contrary, there are currently more than 700 First Nations (or Tribes as they are known in the United States) whose ancestors occupied or shared occupation of what is now Canada. As a consequence of that prior occupation and the fact that Aboriginal peoples were organized into distinct societies with their own cultures, the discovery of Aboriginal remains in previously undeveloped areas occurs with some regularity.

In Ontario, the Cemeteries Act, R.S.O. 1990, c. C.4, as amended, specifically recognizes Aboriginal burial sites and prescribes the steps to be taken upon the discovery of remains. Similar legislation exists in most of the other provinces in Canada.

Section 68(1) of the Cemeteries Act (Ontario) prohibits the disturbance of any burial site, Aboriginal or non-Aboriginal, except upon instructions of a coroner or pursuant to a site disposition agreement. Anyone who discovers or has knowledge of a burial site is required to immediately notify the police or coroner (Section 69).

Upon notification, the police and coroner will protect the site from further disturbance until the coroner, sometimes with the assistance of an archaeologist, can determine cause of death and origin of the remains. Section 70(1) of the Cemeteries Act (Ontario) allows the Registrar responsible for the administration of the Act to order an owner of the land on which a burial site is discovered to cause an investigation to be made to determine the origin of the site. If the Registrar concludes that such an investigation would cause undue financial hardship to the owner, the Registrar shall undertake that investigation. The investigation is to be done with as minimal disturbance to the site as is reasonable in the circumstances.

Once the origin of the burial site has been determined, the Registrar is then required to declare the site to be either:

(a) an unapproved Aboriginal peoples cemetery;

(b) an unapproved cemetery; or

(c) an irregular burial site.

An unapproved Aboriginal peoples cemetery is land set aside with the apparent intention of interring therein, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were one of the Aboriginal peoples of Canada (Section 71(4)). By contrast, an irregular burial site is a burial site that is not set aside with the apparent intention of interring human remains therein (Section 71(2)).

If the Registrar declares a burial site to be an unapproved Aboriginal peoples cemetery, then the Registrar is required to serve notice of that declaration on such persons or class of persons as are prescribed by the Regulations. Typically notice is given to the owner of the land, the developer if different from the owner, and First Nations which are located in the vicinity of the burial site. Those who are served with such a notice are required to enter into negotiations with a view to entering into a “site disposition agreement”. The Regulations prescribe the time frame within which those negotiations must take place. If a settlement is not reached within that time frame, the Registrar has the authority to refer the matter to arbitration. The Registrar also has the discretion to extend the time frame if meaningful negotiations are ongoing.

Typically, the negotiations for a site disposition agreement focus on the protection and preservation of the lands for a burial site or the re-interment of those remains elsewhere and the costs and ceremonies associated with that interment. For private land owners and land developers, the discovery of human remains can have an immediate and serious financial consequence which limits or prevents further development of the site. In our experience, most developers are anxious to avoid confrontation which might affect construction progress during Canada’s limited construction season or which might interfere with the ultimate marketability of the property.

Lawyers acting for land owners or developers who are confronted with this situation are well advised to immediately retain a qualified and experienced archaeologist. It is essential to determine as soon as possible the extent of the land affected, the number of persons who may be interred, even if only a best estimate, and to assess the cultural and historical significance of the site. It is very important that nothing be done that could reasonably be construed as ignoring or desecrating the site. Quite apart from the implications of contravention of the Act, as a practical matter, the reaction of Indigenous peoples could result in forced occupation of the land, police barricades, injunctions and substantial negative press.

In our experience, it is important to share information regarding the discovery and extent of the site with the First Nation as early as possible. Most First Nations will be cooperative with the developer in determining what protections are necessary if the remains are to stay in situ or what steps must be taken for the remains to be removed and re-interred on Aboriginal grounds elsewhere. Counsel acting for land owners or developers should expect that all expenses associated with re-interment will be borne by the developer or land owner. The removal of the remains and their re-interment is often accompanied by traditional Aboriginal ceremonies.

Pursuant to Section 74 of the Cemeteries Act (Ontario), the owner of land that contains an irregular burial site shall ensure that the remains found are interred in a cemetery. Again, if it is found that the remains are Aboriginal, then arrangements are usually made through the First Nation for those remains to be re-interred at the cemetery of the local First Nation. Most First Nations are very cooperative. The expenses of re-interment are to be borne by the land owner.

Occasionally, the discovery of remains results from an environmental assessment process. The presence of an Aboriginal burial site on the property may affect the ability to obtain the requisite approvals from the Ministry of Environment or affect how the project is allowed to proceed.

In British Columbia, the Heritage Conservation Act, R.S.B.C. 1996, c. 187 provides that unless authorized by permit, a person ought not damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains (Section 13(b) and (d)).

In summary, provincial legislation prohibits interference with Aboriginal burial sites. It imposes an obligation on land owners and those affected to negotiate. The presence of a burial site may affect the use and development of the property.

Remains in Third Party Hands

Canada does not have legislation comparable to the United States Native American Graves Protection and Repatriation Act (Public Law 101 – 691; 25 U.S.C. 3001 et seq), as amended. The U.S. statute became law November 16, 1990 although it has since been amended twice. Section 3 of that Act prescribes that the remains of Native Americans found on federal land or on Reserve lands are owned by the lineal descendants and if those lineal descendants cannot be ascertained, they belong to the Tribe on whose lands the remains were located. If the remains are located on federal lands that are not part of a Reserve, then the Tribe which have the closest cultural affiliation or closest location becomes the owner. In the United States, it is illegal by virtue of Section 4 of the Act for anyone to knowingly sell, purchase or use for profit the human remains of a Native American without the right of possession to those remains as provided in the Act. Anyone that does sell is subject to a fine, imprisonment or both.

Canada also lacks a statute which addresses the repatriation of human remains which are in the possession of an institution such as a university or museum within Canada where those remains are Indigenous. The Cultural Property Export and Import Act, R.S.C. 1985, c. C-51 permits the Governor In Council to designate objects or classes of objects which the Governor In Council deems necessary to control to preserve the national heritage in Canada. These objects may include objects of any value that are archaeological, pre-historical, historical, artistic or scientific interest and which have been recovered from the soil of Canada. It also includes objects that were made by or relate to the Aboriginal peoples of Canada which have a fair market value in Canada of more than $500.00. Under Section 35 of the Act, the Minister of Culture may use moneys that have been appropriated by Parliament to purchase objects in respect of which an export permit has been refused or to purchase cultural property situated outside of Canada that is related to national heritage. Thus, the Federal Minister of Culture may use funds to pay for the repatriation of Indigenous remains held by foreign institutions.

The Act also contains the adoption of the Convention for the Protection of Cultural Property in the Event of an Armed Conflict and its protocols. The Act makes it illegal to import into Canada any foreign cultural property that has been illegally exported from a reciprocating State. Where the government of a reciprocating State submits a request in writing to the Minister for the recovery and return of such foreign cultural property that has been illegally imported into Canada, the Attorney General of Canada may institute an action in the Federal Court or in the Provincial Superior Court for the recovery of that property.

The writer was directly involved in one situation where a university located in Canada was in possession of the remains of Indigenous people which had been recovered from a specific site decades earlier. These remains had been the subject of study at the university for many years. The university’s view was that these remains were the property of the university.

In that case, the First Nation made a request of the university for the return of the remains so that they could be re-interred at the First Nation’s cemetery on Reserve. The lineal descendants of the person who had died could not be ascertained. Because of the location where the remains were found, it was likely that the remains were those of the ancestors of the First Nation.

There was a tension between the desire of the First Nation to repatriate and inter the remains of their ancestors with that of scientists and scholars who preferred that the remains continue to be available for further research and study. The issue was resolved without litigation and without arbitration. In this case, a time limit was agreed by which the remains to be returned to the First Nation for interment. The agreement required that there be no experimentation done which would further harm or desecrate the remains pending their interment. Non-invasive and non-destructive means of testing and accumulating data were permitted but only within a limited time frame. Happily, the matter was resolved by cooperation and compromise.

The Native American Graves Protection and Repatriation Act, supra, expressly provides that where human remains are in the possession of federal agencies or museums, they must be immediately returned to the descendent or Tribe advancing the claim if cultural affiliation has been established (25 U.S.C. 3005 (a)). It must be noted, however, that the Act is limited to remains discovered on or after November 16, 1990. The Act also provides that the U.S. Secretary has the authority “to make grants to Indian Tribes and Native Hawaiian Organizations” to assist them in the repatriation of Native American cultural items, which includes human remains.

In 2004, the Umatilla Tribe and other Tribes requested the repatriation of the bones of the Kennewick man. Scientific studies failed to conclusively establish the connection between the Kennewick man and the Tribes making the claim. As a consequence, the Ninth U.S. Circuit Court of Appeals denied the Tribes’ appeal and the remains continue in the possession of the Burke Museum at the University of Washington pending further litigation.

Conclusion

Although there is legislation in place which covers the discovery of Indigenous remains in situ in Canada, there is a notable gap to address the situation of Indigenous remains the possession of domestic third party institutions. There is equally a paucity of case law, although as Justice Linden’s comments indicated at the outset of this paper, the issue an incendiary one. Patience, cultural sensitivity and creative negotiation will be needed to fill the gap.