Canada’s Faltering ‘Unmarked Graves’ Narrative Goes to Court
When lawyers asked the Law Society of British Columbia to correct the false claim that ‘the bodies of 215 children’ were discovered in Kamloops, the legal regulator accused them of bigotry.
It’s now been more than three years since the eruption of Canada’s “unmarked graves” scandal, which followed claims that the secret resting places of 215 (presumably murdered) Indigenous children had been found in Kamloops, British Columbia. These shocking reports convulsed the entire nation, and produced a sense of collective shame—so much so that some jurisdictions cancelled their 2021 Canada Day celebrations. Why, Canadians asked, should they celebrate the history of a country that had perpetrated such despicable crimes?
But since then, the sense of shame has increasingly turned to confusion, as not a single actual body has been discovered, much less 215 of them. In fact, it’s gradually become clear that what Canada endured during late spring and summer 2021 wasn’t really a moment of “national reckoning” (as it was then described), but rather a large-scale social panic.
What’s stranger still is that this social panic hasn’t been fully extinguished. Even to this day, almost forty months after those first breathless reports of mass child murder in British Columbia, few Canadian journalists and politicians have retracted their erroneous public statements, much less publicly acknowledged that the “unmarked graves” whose discovery they bewailed don’t seem to exist.
Tom Flanagan
As many Quillette readers will know, the story began when the Tk’emlúps te Secwépemc, an Indigenous band based in Kamloops, claimed to have reviewed ground-penetrating-radar (GPR) data indicating the presence of graves on the grounds of an old residential school. The findings, the band claimed, represented a “confirmation of the remains of 215 children who were students of the Kamloops Indian Residential School… We had a knowing in our community that we were able to verify.”
While the band never made its data public, many reporters treated these claims as fact—breathlessly inferring that these 215 (as yet unearthed) children must have been dispatched, either through criminal neglect or outright murder, by teachers, nuns, and priests who’d worked at the residential school. The claim that the (unreleased) GPR results were said to align with a “knowing” in the community was apparently all the proof they needed.
The national hysteria on display in the weeks that followed was capped by Prime Minister Justin Trudeau performing a maudlin ritual at an Indigenous reserve, and lowering the flag on federal buildings across the country (for a period of almost six months, it turned out). In the press, Canada was casually described as a genocide state, with columnists outbidding one another in their use of apocalyptic language. Millions of dollars were paid out to Indigenous groups across the country so they could scour their own territories for the hundreds—nay, thousands—of child graves that, we were all being assured, pockmarked the country from sea to blood-soaked sea. As 2021 came to an end, the Canadian Press proclaimed the “Kamloops unmarked graves discovery” to be the “story of the year.”
The Canadian Press
That designation was oddly timed—as even by late 2021, there were a few observers publicly pointing out the awkward fact that none of these solemn lamentations had been accompanied by any real evidence of actual graves, much less bodies or human remains.
They also pointed out that the GPR technology the Kamloops band had used to search for “unmarked graves” isn’t capable of detecting the presence of graves per se, but rather highlights soil dislocations that may be associated with any number of subterranean artefacts—including drainage pipes, irrigation networks, and tree roots.
Terry Glavin
And yet, aside from the National Post, a Canadian daily newspaper, none of Canada’s large media outlets have admitted to their audiences that they botched this “story of the year.” In most cases, in fact, the original error-littered reports are still up on the web—as with the Toronto Star, whose 27 May 2021 story was titled “Remains of 215 children found at former residential school in British Columbia.”
Rather, these outlets have simply found ways to avoid talking about the story (except by glancing references couched in factually ambiguous terms). Or they have moved on to novel campaigns to further the “genocide” narrative—as with a widely promoted new book that tries to link Canada’s treatment of Indigenous peoples with the international slave trade.
Meanwhile, some activists and politicians have sought to criminalise anyone expressing doubts regarding the original 2021-era unmarked-graves narrative. Academics such as Sean Carleton of the University of Manitoba have even invoked the idiom of Holocaust denial.
Inevitably, however, the truth has begun to emerge, thanks largely to Indigenous leaders themselves. These include Derek Nepinak, chief of Minegoziibe Anishinabe (also known as Pine Creek)—who, in 2023, ordered the excavation of a church that, according to local lore, contained unmarked graves of Indigenous children. While no bodies were found, Chief Nepinak deserves credit for conducting the search. Other First Nations that have announced GPR results indicating possible unmarked graves have instead claimed that performing any kind of timely physical search would violate Indigenous cultural norms.
The Canadian Press
Another significant step was taken in May, when Tk’emlúps te Secwépemc itself—the First Nation that had sparked the original “unmarked graves” crisis—began officially referring to the 215 GPR-detected soil dislocations as “anomalies” rather than graves. Aside from the National Post, few media outlets reported this important change. But, as described below, this adoption of more accurate language has had important knock-on effects in the legal sphere.
The most recent developments are rooted in the criminal conviction of a group of B.C.-based protesters who’d illegally blocked a pipeline worksite in 2020. During last year’s sentencing proceedings, a defence layer seeking clemency for one of these defendants argued that she was a kindly soul who’d helped with a tree-planting project honouring the 215 children “whose bodies have been unearthed” in Kamloops.
At this, B.C. Supreme Court Justice Shelley Fitzpatrick interjected: “There’s no bodies that have been unearthed.”
The lawyer, Benjamin Isitt, admitted his mistake, and retreated to the claim that human “remains” had been “identified through ground-penetrating radar.”
But of course, this wasn’t true either. And so the judge interrupted again, this time to indicate that these were potential remains.
There then followed an outburst in the court’s viewing gallery, which included someone loudly denouncing the judge as “racist.”
The judge’s interjections would eventually be seized on by one of the protesters, whose subsequent legal appeal argued that Fitzpatrick’s language had betrayed an anti-Indigenous bias so severe as to “incurably taint” the entire proceeding.
Two months ago, the province’s Court of Appeal released its judgment. In a decision authored by B.C.’s Chief Justice, the court denied the appeal, concluding that Fitzpatrick had done nothing more than correct the defence counsel’s inaccurate claims.
The Chief Justice then continued:
“It was the judge’s [i.e. Justice Fitzpatrick’s] subsequent use of the word ‘potential’ that caused uproar and hurt. However, that word is the very same word Indigenous communities and others have used to describe the results of tests using ground penetrating radar in and around former residential school sites.
What makes this notable decision more notable still is the identity of its author—Leonard Marchand Jr., the first Indigenous jurist to hold the post of Chief Justice in British Columbia. Marchand’s own father—the Honourable Len Marchand, Canada’s first status Indian member of parliament—attended the very same Kamloops Indian Residential School (KIRS) whose former grounds, we were once instructed to believe, contained 215 child corpses. Indeed, the elder Marchand wrote positively of his experience at KIRS in his autobiography, describing his schooling as an important step toward a groundbreaking career that would include postings as federal cabinet minister and senator.
Aidan Macnab
Needless to say, not everyone who attended Canada’s Indigenous residential schools had positive experiences. Some students were abused, and thousands perished from diseases such as tuberculosis—typically at rates much higher than those in the general Canadian population. More than 3,000 children who attended residential schools are known to have died, and the actual tally may be several times that number. These facts comprise a stain on Canada’s national conscience, whether or not a single victim is ever discovered to have been secretly buried in an unmarked grave.
Andrew Stobo Sniderman
Moreover, as Quillette readers will know, even many of those who passed through residential schools in good health became alienated from their ancestral cultures, and were denied opportunities to use Indigenous languages. As a result of such assimilationist policies, Justice Marchand properly noted, “former students have struggled with emotional and mental health issues, addictions, poor educational outcomes, poverty, parenting difficulties, violence, vulnerability to further victimization, and negative interactions with the criminal justice and child welfare systems.”
None of those who insist on reporting the real facts of the “unmarked graves” scandal should shy away from these facts in the process.
Unfortunately, it is not just media archives that contain incorrect and misleading references to Canada’s “unmarked graves,” but also documentation promulgated by important civic institutions. These include the Law Society of British Columbia, the regulatory body that enforces standards of professional and ethical conduct for B.C. lawyers. Its mandatory Indigenous Training course module includes the following language:
On May 27, 2021, the Tk’emlúps te Secwépemc Nation reported the discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds. Although the discovery was shocking to many Canadians, many Indigenous residential school survivors had previously reported the existence of unmarked burial sites, and the unexplained disappearances of children; the discovery confirms what survivors have been saying all along.
This text isn’t merely exaggerated or misleading. It’s plainly incorrect, especially in regard to the author’s use of the word, “confirms.” And the fact that these words remain encoded in the Law Society’s mandatory course materials effectively serves to instruct the province’s lawyers to endorse this fashionable falsehood as a means to remain in good professional standing.
Two B.C. lawyers seeking to have these materials corrected have put forward a resolution in advance of the Law Society’s 2024 Annual General Meeting, which will take place next week. Specifically, they propose that the words, “discovery of an unmarked burial site” be replaced with “discovery of a potentially unmarked burial site”; and that the words, “the discovery confirms what survivors have been saying all along” be deleted. (One of the lawyers had communicated with the Law Society more informally, seeking to resolve the issue out of the public eye—and resorted to drafting a formal resolution only after being stonewalled.)
An italicised response from the Law Society, which appears below the text of the proposed resolution, indicates that its officials will take up the issue of language clarification “in the next edit”—which apparently would make its way into published course materials as of January 2025. This would comprise a suitable institutional response—if that’s where the law society had left things. But it didn’t. Instead, it put out a press release effectively defaming the two lawyers who’d authored the resolution as racists, while also suggesting their resolution is “vexatious.”
In effect, the Law Society of British Columbia is weaponising its member-funded publicity apparatus to gaslight two of its constituents as bigots. And amazingly, it is doing so with the support of the B.C. Civil Liberties Association, which is now claiming that correcting such obvious falsehoods can’t be done without first conducting “meaningful engagement with Indigenous communities.” (In its September 16 statement, the BCCLA also added the drive-by suggestion that the two lawyers seeking to have the record corrected are abetting “discrimination.”)
Good column by @sarkonakj—but it’s missing an important detail (that, to be fair, I only just learned myself): Not only is the @LawSocietyofBC resisting efforts to correct its erroneous “cultural competency” materials (which falsely state that 215 bodies were discovered in… https://t.co/8YNjje9tcN pic.twitter.com/hFvRNxMkqs
— Jonathan Kay (@jonkay) September 17, 2024
(In order to back up this propaganda campaign, it should be noted, the law society cited a press release from a group called the B.C. First Nations Justice Council, or BCFNJC, which itself had denounced the resolution as an exercise in “alarming Residential School denialism.” That press release also contains the specious claim that, even to this day, “First Nations communities… are continuing to discover unmarked burials and mass graves.” This is an unsettling development in its own right: As National Post columnist Jamie Sarkonak notes, the BCFNJC isn’t just an activist group that happens to be staffed by Indigenous lawyers. The province’s Attorney General has tabled a bill that would give the BCFNJC a leading role in filling out a new body aimed at promoting “Indigenous legal traditions and Indigenous practices.”)
Canada is a conservative country at heart—not in its politics, of course, but rather in regard to the personal and professional habits of its citizens. We like to say and think what our neighbours say and think, even once it becomes obvious that those things are untrue. It’s seen as impolite to go off-script, and no one likes to be the first mover to do so. But even in Canada, these polite taboos can only be stretched so far. No officially sanctioned lie can survive indefinitely—even one, as in this case, whose telling supposedly furthers the goal of “reconciliation.”
Reconciliation, some seem to forget, is supposed to be part of a package deal alongside “truth”—as in the Truth and Reconciliation Commission of Canada, the National Centre for Truth and Reconciliation, and our (newly minted) National Day for Truth and Reconciliation. It’s alarming that groups such as the Law Society of British Columbia seem to believe that one can only be achieved by sacrificing the other. That’s a false choice, and I applaud B.C.’s Chief Justice for saying as much.
