Indigenous ancestral remains were found 20 years ago. Ontario says new homeowners have to investigate

In apr 2006, ii locals on tom wolfe Island, Ont., were checking the harm of the previous day's force on the shoreline when they noticed something strange on the edge of a sandy bank.

They approached the object — and discovered it was a human skull. 

The police and coroner came to the scene and uncovered more remains — some teeth, some long bones — and took some of them away for analysis. They left the rest in the ground. 

During a preliminary assessment, a provincial archaeologist wrote: "It seems most likely that the individual in question would be affiliated with the Point Peninsula Culture, late Middle Woodland period, dating to circa AD 750. … A more detailed report will be forthcoming within a fortnight."

That report never came, and the investigation appeared to stop there. 

The remains that had been left behind by authorities were reportedly reburied farther inland by the locals.

Couple faces $319,000 bill after Indigenous remains found on property

In September 2022 — 16 years later — the province ordered the owners of the land where the remains were found to hire an archaeologist to relocate and investigate the burial site to determine its origin and borders.

Dave and Sharroll Van Hal — who had just purchased the property the month before — were shocked. 

"The homeowner that we bought it from said that burial site was gone," said Dave Van Hal. 

The Van Hals had been told about the province’s involvement in 2006, and a land title search done before they bought the property didn’t note anything about an existing burial site. 

"So we thought it had been dealt with," said Van Hal.  

What’s more, the shoreline had eroded deeper into the brush over the years, meaning it was likely the reburied remains had washed away.

The Van Hals are part of a growing cohort of Ontario homeowners navigating what’s called a burial site investigation (BSI) following a discovery of ancestral remains. A 2002 provincial law — the Funeral, Burial and Cremation Services Act (FBCSA) — gives Ontario’s Registrar of Burials the power to order a homeowner to launch one.

It’s used to determine, among other things, the site’s history and if the property should be classified as a cemetery if more remains are found. 

The Van Hals don’t know why they’re being tasked with taking the lead.

"Why are we paying for that?" said Dave Van Hal. "Why not … think about doing the job you're supposed to do 16-plus years ago?"

Terri-Lynn Brennan, a licensed archaeologist in Ontario who is of Mohawk, Tuscarora and British heritage, says the law mandating BSIs needs to be rewritten.

"There's just so much responsibility that's being shirked, as always is when it comes to Indigenous relations and/or being accountable to Indigenous nations," she said. 

"There is no way within the current system to make any of this right."

Brennan, a resident of Wolfe Island herself, learned about the original site and reported reburial of the remains in 2017. She reached out to the registrar in 2021 when she learned the owner of the property was considering selling it. 

Brennan says the registrar — hired sometime after 2006 — wasn’t aware the investigation was still open.  

"A very disturbing fact to me is that apparently there is part of the Ancestor that is still in the hands of the police," Brennan said. "It upsets me very much to know that that particular Ancestor was missed in regards to following up on their safety in the area that they were repatriated." 

The registrar sent a burial site investigation order to the Van Hals in the fall of 2022.  

Saddled with the legal requirement, the couple worked with an archaeologist to first try to determine the co-ordinates of the original discovery, and any other location where remains might have been reburied, before starting the BSI. 

In his field notes, the archaeologist said "the investigation revealed the shoreline has now eroded to the area of the burial." He also said it was likely any reinterred remains had eroded as well.

The assessment, which cost $5,900, found no evidence of remains or artifacts. The Van Hals say it should be up to the province to confirm where the site is — specifically, the Ministry of Public and Business Service Delivery and Procurement, which oversees the registrar. 

"If you want to hire your own consultant, and … validate what the public is telling you, that [the remains are] there, and finish doing what the ministry should have done years ago, have at her," said Dave Van Hal. 

A BSI is a lengthy and expensive process. It requires meticulous work: sifting soil through fine mesh screens until the archaeologist finds a five-metre buffer containing no evidence of remains or artifacts from the initial discovery site.

Jay and Dee Kettle of Prince Edward Country, Ont., discovered ancestral remains in three separate locations on their waterside property during a new septic tank installation for their dream business venture last August. In October, the registrar sent them a BSI order. 

"We don’t want to be disturbing anything that shouldn’t be disturbed," Jay Kettle said. "We know we need to follow process."

An early estimate from the archaeologist the Kettles are working with suggests about 230 square metres of soil will have to be excavated in order to meet the BSI’s requirements — an approximately two-year process that could cost the couple more than $500,000.

"I feel like I just got punched in the stomach," said Dee Kettle, who is Métis. 

Under a provision in the FBCSA, homeowners can apply to the registrar for financial help if they can prove the mandatory dig would cause them an "undue financial burden." The Kettles plan to do so. 

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But the law doesn't include any criteria for how a homeowner would qualify. For those who do apply, it’s not clear how long it takes to get an answer. 

Brennan says the Van Hals' BSI bill could be sky-high, too, given the rich history of Indigenous village life in and around the waterways of Wolfe Island.  

"This could turn into more of a nightmare," she said. "If they do find more Ancestors, that's gonna cost [the Van Hals] more money — like double and triple." 

The Van Hals are trying to get the order dropped altogether. 

"We don't even want to look at getting financial support, because in this particular case, we think it should have been dealt with originally," said Dave Van Hal. 

Dee Kettle doesn’t want to move forward with a dig, either. Instead, she says she wants to honour the found Ancestors by leaving them in their burial place. 

"Maybe that's where they wanted to be. Nobody's going to know that," she said. "Leave them alone." 

The law says reinterring discovered remains in the ground is an option, but only after the completion of a BSI because its results prescribe the next step. 

For example, according to the law, an agreement has to be made between the landowner and the First Nation, or representative of the deceased, about the handling and protection of the remains if the discovery site is determined to be an Indigenous peoples' burial ground. 

"Following an inquiry in 2022, the Registrar determined there was no evidence that the investigation had been completed and directed the current landowner to carry out the investigation," the email said.

But in an email sent to the Van Hals in August 2023, the registrar of burials informed them that "the ministry did not issue an order with respect to this burial site in 2006."

"As a result, the minister won't be commenting on it," he wrote. 

He said it would be the responsibility of provincial and territorial governments "to amend or enforce their existing legislation."

As for the Van Hals, they have a meeting with the registrar on Friday. 

"A lot of things have gone wrong to get to this stage," said Dave Van Hal. "It seems like there isn't a hybrid approach in finding effective solutions. It's one size fits all … despite how that is brought to light."

For Brennan, the rising number of cases like this points to a problem still buried under the law mandating BSIs: whom the land belongs to. 

"This situation has deeper roots than homeowners," she said. "This has got more to do with land rights."

"Nothing is going to get fixed anytime soon."

Producer

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