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Landmark settlement agreement

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When the Kanien’kehá:ka Kahnistensera (Mohawk Mothers) filed their civil lawsuit in March 2022 demanding McGill University cease work on an $850-million redevelopment project at the former Royal Victoria Hospital, it seemed as though the odds were stacked against them.

But in room 16.07 of Quebec’s Superior Court yesterday afternoon, the Kahnistensera showed exactly why it’s worth believing in the underdog, as justice Gregory Moore “homologated” – meaning made enforceable by the court – a final settlement agreement negotiated by the Kahnistensera over the past few months.

The agreement details how the Societe quebecoise des infrastructures (SQI), McGill University, and the Kanien’kehá:ka Kahnistensera will implement an agreed-upon archaeological plan, as outlined by the Kahnistensera during negotiations. The plan includes the provision of a panel of three archaeologists, Adrian Burke, Justine Bourguignon Tétreault, and Lisa Hodgetts, who will be tasked with impartially and independently reviewing the results of the excavation process. The archaeologists have been approved by the Kahnistensera, as well as the SQI and McGill University. 

“In the agreement, when you look through it, you’ll see that what is leading the way and what the special interlocutor has insisted upon from day one are best practices for respecting Indigenous protocols, cultural priorities, and teachings,” said Julian Falconer, lawyer for the independent special interlocutor for missing children and unmarked graves and burial sites associated with Indian residential schools, Kimberly Murray, who was thoroughly involved in all hearings associated with the case. 

“Best practices will determine how to respectfully honour child remains if they are there,” said Falconer.

He said the Kahnistensera were vindicated by the homologation of the agreement, which they hope signals the beginning of a new path forward with regards to excavations at the site.

“Trust is a big issue with us. We came here trying to renew a relationship, and having that homologation is something that we can lean on to start this new relationship,” explained Kwetiio, who is one of the Kanien’kehá:ka Kahnistensera, after the hearing. “What’s in (the deal) is an archaeological plan. It’s not for either side, it’s not for people fighting amongst each other. It’s not for different entities. It’s just for the children. It’s truth telling.”

Falconer stressed how, historically, financial gain has been put above Indigenous concerns about unmarked burials. With the agreement homologated, he hopes this won’t be the case going forward. 

“Best practices will make the call, not best investments, not best real estate projects, not best dollar value,” he said. 

Other requirements laid out in the final settlement agreement include a requirement for McGill, the McGill University Health Centre (MUHC), and the Attorney General of Canada to provide on a best-efforts basis expedited access to their archives, including restricted files as permitted by law. 

The Attorney General of Canada will also be required to fund two contracts between the plaintiffs and Know History, an organization which offers historical-research services that meet the specific needs of Indigenous communities. 

If, after following the agreed-upon procedures, there are no graves identified, construction work can begin on a rolling basis in “a sensitive manner with appropriate monitoring that will allow a prompt reaction in the event there is some unexpected discovery,” according to the agreement.

“I think that we’re going to have a great ending for everybody,” said Kahentinetha, also one of the Kahnistensera, after the hearing. She emphasized the precedent-setting nature of the decision and said she hopes other Indigenous groups will follow in the Kahnistensera’s footsteps in challenging powerful institutions. 

“It’s going to be wonderful for all of Canada and maybe even for the world, to deal with the same issues that are happening everywhere. I really am happy about this; it’s a terrific, terrific thing,” she said.

The journey to yesterday’s landmark victory has been neither fast nor easy. Back in January 2022, the province had slowed proceedings by motioning that the Kahnistensera be represented by a lawyer, as opposed to self-representing. After lengthy delays, justice Moore allowed the Kahnistensera to represent themselves, in accordance with the protocols provided by the Kaianerekowa (Great Law of Peace).

The Kahnistensera then had to face a motion from the Attorney General of Quebec, who sought to block the inclusion of evidence from special interlocutor Murray. She was ultimately permitted to enter the case as a friend of the court, with her lawyer, Julian Falconer, supporting the Kahnistensera throughout the legal process. 

The Kahnistensera have spent months in negotiations with the defendants since last October, after two days of court hearings to determine the future of developments at the site. On the second day of that hearing, excavation work ordered by the SQI and McGill began without consent, before a historic temporary injunction was granted by justice Moore.

Though proceedings have been delayed by these roadblocks and more, the Kahnistensera highlighted after yesterday’s hearing the abundance of support they have had throughout their case. In particular, they drew attention to the input of Lana Ponting,  who provided an affidavit to the court about the abuse she experienced and witnessed at the Allan Memorial Institute during her unlawful detainment there in the 1950s, aged 15. 

Now at age 82, Ponting had a message for McGill University, who maintain that there are no bodies buried at the site. 

“You are wrong,” Ponting said. In her affidavit, she describes witnessing hospital staff digging graves with red shovels, and the abrupt disappearance of her Indigenous friend and fellow patient, Morningstar. “There are Indigenous people buried there. There are children buried there. How can you say there’s not bodies? Why are you saying that? I was there. I saw. I listened. I heard people in the Allan talking about the bodies buried there. So don’t. Don’t say there are no bodies there.”

Ponting said that she’ll be celebrating this historic victory, but that she expects more of the government in acknowledging and addressing the impacts of what happened going forward.

“Waiting all these years has been absolute hell,” she told The Eastern Door. “The government knew back in the 50s and the 60s that things were going on at the Allan, and the government did nothing. Nothing at all. We want a public inquiry, we want justice, we want compensation, and we want a public apology from the government.”

Special interlocutor Murray welcomed the news of the homologated agreement, noting that Moore’s decision provides weight in moving forward with the investigations on site.

“Indigenous Peoples are often faced with institutional denialism when they bring forth concerns relating to burials. These concerns are often discredited, minimized, and not supported by action,” she said. “The settlement agreement represents concrete action by all parties, which respects the concerns of the Kanien’kehá:ka Kahnistensera.”

Falconer commended justice Moore for showing compassion throughout the hearings, particularly in his decision to let Ponting make a statement at the end of Thursday’s session, despite this being uncommon court practice.

“If trust is going to actually be built in this country with the assistance and support of the court system, then the kind and breadth of mind and vision justice Moore showed today when he invited Lana Ponting forward to speak is essential,” Falconer said. “What you’ve seen out of justice Moore is nothing short of groundbreaking.”

The Kahnistensera noted that the decision signals the start of a new excavation plan going forward, and that they won’t be losing momentum as archeological work begins. 

“This is wonderful that we finally got this going. It’s a big relief for us, because it took a lot of work to do this, and we’re grateful that we got to this point,” said Kahentinetha. “And we’re going to keep going.”

At the end of the hearing, the SQI and McGill requested for there to be a suspension of current legal proceedings to allow for proper application of the agreed-upon plan. The Kahnistensera agreed to consider the length and implementation of such a suspension, and will communicate their decision to justice Moore by May 5.

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Eve is a reporter with the Eastern Door. She has also covered harm reduction and social justice issues for the Montreal Gazette, The Breach, Filter Magazine, and more.

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Eve is a reporter with the Eastern Door. She has also covered harm reduction and social justice issues for the Montreal Gazette, The Breach, Filter Magazine, and more.