Mandate and Terms of Reference

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On June 8, 2022, Kimberly Murray was appointed as Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools.

The Special Interlocutor’s mandate started on June 14, 2022, and will continue into the Fall of 2024.

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Context

The location of potential unmarked graves and burial sites at former residential schools in Canada has caused us all to reflect on the profound, generational harms of Indian residential schools and the impacts of this intergenerational trauma that First Nations, Inuit and Métis continue to face today. This part of Canadian history has been known and shared in Indigenous communities, and it has had lasting effects in these communities. The history is finally coming to light in Canada and has entered the public discourse.

The First Nations, Inuit and Métis children whose graves are now being identified deserve to be recognized in a meaningful way. A legal framework to preserve and protect the rights, respect and dignity of the children buried in unmarked graves and burial sites is necessary to advance reconciliation in this country and to ensure that their communities and families are in a position to do so.

Mandate

The Special Interlocutor will work to identify needed measures and recommend a new federal framework to ensure the respectful and culturally appropriate treatment of unmarked graves and burial sites of children associated with former residential schools. This work will be done in collaboration with First Nations, Inuit and Métis governments, representative organizations, communities, Survivors, and families, other departments of the Government of Canada, provinces and territories, and other relevant institutions such as church entities and record holders.

The Special Interlocutor will begin a dialogue between parties that is trauma-informed and culturally safe. She will work toward a collective approach and develop a path forward to address the legacy of unmarked graves and burial sites.

The Special Interlocutor will function independently and impartially, in a non-partisan and transparent manner to achieve the objectives of her mandate.

The Special Interlocutor will examine the existing federal, provincial and territorial laws, regulations, tools and practices that currently apply and have applied to protect unmarked graves and burial sites connected to former residential schools, as well as applicable Indigenous laws and protocols, in order to develop a description of the current legal framework. The Special Interlocutor will identify areas of improvement in Canadian law and make recommendations for a new federal legal framework to identify, protect, and preserve unmarked burial sites connected to former residential schools and lands associated with the schools. Although the approach is national, where appropriate, she will work with provinces and territories.

The starting point will be to engage with affected First Nations, Inuit and Métis governments, representative organizations, communities, Survivors, and families to discuss issues of concern around the identification, preservation, and protection of unmarked graves and burial sites, including the potential repatriation of remains. The Special Interlocutor will guide this process, facilitate listening and action by engaging in conversations in ways that are culturally informed, trauma-informed, appropriate and respectful, and based on Indigenous customs, decision and consensus-building practices.

In doing so, the Special Interlocutor will model an approach based on principles that contribute to building a relationship of trust and respect between Canada and First Nations, Inuit and Métis.

The United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14) (the “UN Declaration Act”) provides a clear vision for the future. The UN Declaration Act requires that moving forward, federal laws and policies reflect the standards set out in the United Nations Declaration on the Rights of Indigenous Peoples (the “Declaration”). The UN Declaration Act provides a framework to help address injustices, prejudice, discrimination and violence that First Nations, Inuit and Métis have suffered and continue to suffer such as the deaths resulting from children at former residential schools. This framework requires that the Government of Canada, in consultation and cooperation with Indigenous peoples, take measures to ensure that federal laws are aligned with the Declaration (section 5), develop an action plan for the implementation of the Declaration (section 6) and report annually on progress (section 7). The Special Interlocutor’s work and recommendations should contribute to the implementation of the Declaration, consistent with the UN Declaration Act and the Constitution Act, 1982 (including section 35).

In carrying out her mandate, the Special Interlocutor will:

  1. Create an engagement process between First Nations, Inuit and Métis and Canada that:
    • is based on building and strengthening trust
    • uses engagement processes and mechanisms familiar to, and co-developed with, First Nations, Inuit and Métis
    • engages First Nations, Inuit and Métis in a manner that respects their territoriality, laws and protocols, as well as the traumatic historic and contemporary relationships between Indigenous peoples and Canada;
    • acknowledges and respects Indigenous laws, legal orders and governance
    • facilitates communications between First Nations, Inuit and Métis and Canada
    • supports the advancement of the implementation of the Truth and Reconciliation Commission’s Calls to Action, in particular Calls to Action 71 to 76
  2. Examine existing federal, provincial and territorial laws, regulations, tools, policies and practices that currently apply and have applied to protect unmarked graves and burial sites connected to former residential schools and lands associated with the schools, as well as applicable Indigenous laws and protocols, in order to develop a description of the current legal framework.
  3. Identify gaps and inconsistencies (including the gaps and inconsistencies identified by those with whom the Special Interlocutor may engage) and needed measures, and make recommendations relating to federal laws, regulations, policies and practices surrounding unmarked graves and burial sites at former residential schools and lands associated with the schools. Recommendations should identify the needs to be addressed by a new framework that adequately responds to critical questions related to preserving the dignity of First Nations, Inuit and Métis children, communities, Survivors, and families, setting out responsibilities for unmarked graves and burial sites.
  4. Identify needed measures and recommenda new federal legal framework that respects the dignity of unmarked graves and burial sites of First Nations, Inuit and Métis, consistent with the wishes, traditions and protocols of their respective communities and families, and report these recommendations to Survivors, communities and families and to the Government of Canada.
  5. Ensure that the processes, measures and recommendations are in accordance with applicable Indigenous laws and legal orders and relevant international instruments including the Declaration as well as with the Constitution Act, 1982, including section 35.
  6. Adopt an engagement approach focused on building and strengthening trust between Canada and First Nations, Inuit and Métis. The process may follow Indigenous decision and consensus-building practices and will be culturally safe and trauma informed. It will employ engagement processes and mechanisms familiar to First Nations, Inuit and Métis.
  7. Act as a conduit, in collaboration with departments of the Government of Canada and other entities including the proposed National Advisory Committee on Missing Children and Unmarked Burials, to:
    • assist First Nations, Inuit and Métis governments, representative organizations, communities, Survivors and families navigate the federal system on matters relating to unmarked graves and burial sites at former residential schools and lands associated with the schools
    • assist communities and Survivors navigate the federal system as communities seek to obtain and preserve relevant information and records from Canada, provinces and territories and other relevant institutions such as church entities and record holders.
  8. Include consideration of Indigenous children who were buried on sites other than those at and associated with former residential school lands, and of those whose remains cannot be found.
  9. Consider how a federal legal framework could support the advancement of the implementation of the Truth and Reconciliation Commission’s Calls to Action, contribute to implementation of the Declaration and align with section 35 of the Constitution Act, 1982.
  10. Consider how a federal legal framework could support pathways for the acknowledgement and methods for the possible return of First Nations, Inuit and Métis lands that were assigned or expropriated to accommodate churches and residential school sites and associated lands.
  11. Recognizing that addressing the issue of unmarked graves and burial sites lends itself to a cooperative approach between the federal and provincial governments and Indigenous peoples, facilitate dialogue with provinces and territories for matters arising within their jurisdiction and with other relevant institutions such as church entities.

In addition, the Special Interlocutor will:

  1. Carry out this mandate in a manner that does not interfere with criminal investigations, prosecutions or civil proceedings. While this mandate does not confer powers to compel the production of information or documents, it does not affect the ability of the Special Interlocutor to request, obtain or review documents (including coroner reports) in accordance with access and privacy legislation or any other applicable law.
  2. Make any other recommendations relevant to the federal legal framework relating to residential school sites and associated unmarked graves and burial sites arising from engagement with First Nation, Inuit and Métis families and communities. 

Reporting

By no later than three months from the date of her appointment, the Special Interlocutor will update the Minister on her plans and progress, and take the opportunity to seek any clarity required in relation to the provisions of their mandate.

At the end of one year from the date of her appointment, and more frequently at the written request of the Minister or at the instigation of the Special Interlocutor, the Special Interlocutor will deliver an interim report concurrently to the Minister and to First Nations, Métis and Inuit communities, Survivors and families, describing her work and progress to date in relation to her mandate.

At the end of two years from the date of her appointment, the Special Interlocutor will deliver a final report concurrently to the Minister and to First Nations, Métis and Inuit communities, Survivors and families.

The final report will:

All reports will describe the engagement process, including the identification of elements that could inform future initiatives or a new approach to engagement on issues of common concern to the federal government and First Nations, Inuit and Métis.

All reports will be delivered concurrently to the Minister of Justice and to First Nations, Métis and Inuit Survivors, families, leaders and communities, and to the public, as well as to relevant United Nations Processes and Procedures (for example, Special Rapporteurs).

Additional notes

For greater certainty, it is understood that:

  1. the reference to “unmarked graves and burial sites” includes the burial sites of children associated with former residential schools, whether or not those sites are physically marked or documented in any way
  2. the Terms of Reference, which include the mandate, may be adjusted from time to time, in writing, upon the agreement of the Minister of Justice and the Special Interlocutor
  3. the Special Interlocutor will perform their functions independently according to their own skill and judgment, without influence from the federal government about the conclusions to be reached, or the recommendations to be made