Editorial: Open the files on residential school deaths

The discovery of unmarked graves at the site of the former Kamloops Indian Residential School has shocked the nation. The graves, confirmed with ground-penetrating radar, appear to be the resting place of 215 children, some as young as three years old.

The facility, opened in 1890, was originally operated by the Missionary Oblates of Mary Immaculate, an order of the Catholic Church. It was taken over by the federal government in 1969, and closed in 1978.

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The discovery of unmarked graves at the Kamloops school magnifies the fear, long held by the Aboriginal community, that there are many other such graves at residential school sites across the country.

Efforts are underway to search those sites, and we can only await with anticipatory dread what these investigations may reveal.

Perhaps the most troubling aspect of this emerging horror is the unreadiness, in some cases outright refusal, of the agencies involved to release their files in a timely manner, and make a full apology.

The director of the Indian Residential School History and Dialogue Centre at the University of British Columbia, Mary Ellen Turpel-Lafond, has expressed frustration with the federal government and the Catholic Church for withholding school records for more than 20 years.

And while Vancouver Archbishop Michael Miller has offered a “deep apology,” Pope Francis has refrained from a full acceptance of his church’s role, only expressing “pain” over the Kamloops discoveries.

When three years ago Prime Minister Justin Trudeau pressed the Pope to take responsibility for the church’s role in residential schools, a spokesperson for the Pope replied: “After carefully considering the request and extensive dialogue with the Bishops of Canada, he felt that he could not personally respond.”

It’s possible the unwillingness to open files may have a privacy background. Canada’s privacy commissioners take the position that people’s privacy rights must be respected, even after their deaths.

However, the refusal to apologize and accept responsibility may have a different cause. According to several legal experts, Canada’s handling of the residential schools might very well be classified as a crime against humanity. And that opens very real possibilities of legal liability.

The foundation for such a liability, should it exist, would begin with the findings of the 2019 inquiry into missing and murdered Indigenous women. The inquiry ruled that what happened amounted to genocide. The Kamloops discoveries would add further weight to that foundation.

Because the prime minister embraced the inquiry’s findings, lawyers have noted that a court could rule the state has accepted responsibility for the crime of genocide.

Meanwhile, a consortium of lawyers in Calgary has asked the International Criminal Court in The Hague to appoint a special prosecutor to investigate the Canadian government and the Vatican.

How that might proceed is unclear. It’s doubtful that charges could be laid against individual administrators of residential schools. Some are long since dead, and affixing responsibility would be difficult.

But the court could find both the federal government and the Catholic Church guilty of genocide and crimes against humanity. It could order compensation paid to survivors and their families. It might also impose punitive fines.

The damage to Canada’s international reputation would be immense. We would basically be found guilty of the same class of crimes, though not in the same degree, as the German leaders at Nuremberg. That is an appalling prospect.

Where things go from here cannot be foreseen. The RCMP have opened an investigation into the child deaths in Kamloops, and the discovery of more graves at other schools can only intensify an already horrific situation.

If it can be proved that during the modern era, officials in the federal government or the Vatican participated in the wilful withholding of records that might have incriminated their agencies, heads had better roll.

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