Human Remains

The accidental discovery of human remains triggers a complex series of legal requirements under both federal and provincial laws. Of the two, the federal laws are more straightforward since they focus on the one issue of potential criminal involvement. Provincial laws, on the other hand, cover a wider range of subjects and hence can appear more complicated. However, after an overview of the relevant kinds of legislation, it is possible to arrive at workable principles.

Any discovery of human remains should be reported immediately to the police.

Federal Legislation and Rules

Improper interference with human remains is an indictable offence under section 182 of the Criminal Code.⁶¹

In the case of an accidental discovery of human remains, it is up to the police to determine whether the site is:

• a crime scene or
  
  
• something else (e.g., an unrecorded but non-criminal burial site or an archaeological site). In the latter case, police manuals call on police officers to contact the provincial/territorial archaeological service. When, and only when, it is determined by the police that the site is archaeological in nature, forces such as the RCMP have specific procedures for handling these discoveries.

For example, the RCMP Operational Manual directs that "if a skeleton is of ancient origin, cooperate with authorized anthropologists or archaeologists in protecting the site."⁶² (See sidebar page 28.) The rules of the Ontario Provincial Police,⁶³ the Sureté du Québec⁶⁴ and the Royal Newfoundland Constabulary⁶⁵ are similar.

Sometimes, police go beyond contacting archaeological officials as required by the manuals listed above.

• For example, the manual of the Ontario Provincial Police specifies that the police will also contact the nearest First Nation.⁶⁶
  
  
• In the most detailed example of written supplementary instructions (Saskatchewan), the RCMP's F Division specifies that "when investigating reported bones, the assistance of a forensic anthropologist is to be requested by contacting (the relevant departments of Saskatchewan's universities)."⁶⁷ Parenthetically, the Saskatchewan instructions also illustrate what the investigators would do next.
  
  
  • Do not handle, mark or move any bones, surrounding soil or foreign objects at the site.
    
    
  • Photograph, sketch and measure the site.
    
    
  • If there are indications that bones are recent and death may not have been natural, proceed with a criminal investigation.
    
    
  • If bones are historical, assist anthropologist to secure the site from the general public to prevent collectors from vandalizing it. The anthropologist will take possession of the bones and artifacts. He will also comply with provincial acts which require the recording of the site and proper handling of the remains.

Provincial Legislation

Provincial legislation is more wide ranging. The following is a sampling of the kinds of legislation that can exist, under one name or another.

• Coroners legislation usually applies to skeletal remains, when antiquity is not immediately apparent. The typical coroners act specifies the need for investigation of the identity of the deceased, time and circumstances of death, etc. These laws usually specify that discoveries are to be reported to the local coroner and/or police. "Coroner involvement may be necessary where burial age is not immediately determinable."⁶⁸
  
  
• Public health statutes or "human tissues" laws usually have clauses on the interment, disinterment and transportation of the dead. Normally, a ministerial permit is required for the exhumation and reburial or other disposition of a body. On the other hand: "Health officials have advised that for the majority of archaeological burials, disinterment permits under the Public Health Act would not be required."⁶⁹
  
  
• Such ministerial permits may also be required under cemeteries legislation.
  
  
• Then, there are the heritage/archaeology statutes. In Saskatchewan, for example, skeletal materials predating A.D. 1700 are to be forwarded to the provincial ministry responsible for heritage, for reburial after scientific examination. Skeletal material postdating A.D. 1700 is to be made available to the Indian band nearest the discovery site, or to the ministry if it is of non-Indian origin.

At first glance, the interplay of the above federal and provincial laws would appear to create an almost infinite number of possible combinations. In practice, every jurisdiction has established a single workable scenario for management of discoveries and liaison among interested authorities. Provinces seldom outline this scenario in memoranda of understanding, protocols or other like documents (under various names and with varying levels of specificity), but they all follow the same basic pattern. The example reproduced here (see sidebar page 29) offers one methodical written illustration of that standard approach.

In short, the police will treat the site as the scene of either a crime investigation, or of an archaeological investigation. In the case of the latter, arrangements should be made via the provincial or territorial ministry for professionals to conduct the necessary work.

Extracts From RCMP Operational Manual, Chapter II.10

C. Policy

C. 1. All human deaths occurring within RCMP jurisdiction are to be thoroughly investigated in a cooperative effort between the RCMP, medical examiner, coroner, pathologist, and other lawenforcement agencies.

C. 2. A member (of the RCMP) will notify the provincial or territorial medical examiner or coroner of all human deaths occurring within RCMP jurisdiction in accordance with provincial or territorial requirements.

K. Identification Of Decomposed Bodies And Skeletons

K. 2. If a skeleton is of ancient origin, cooperate with authorized anthropologists or archaeologists in protecting the site. Refer to division directives.

EXTRACTS FROM RCMP DIVISION OPERATONAL MANUAL (F DIVISION, SASKATCHEWAN), CHAPTER II.10

H. INVESTIGATION

H. 1. Human Remains

H. 1. b. Anthropology

1. When bones and/or decomposing flesh are located, an anthropologist can assist investigators to determine:
   
   
   1. if the remains are human or non-human;
   2. if human, the approximate time since death;
   3. identifying traits such as sex, age, stature and racial origin; and
   4. the source of before and after death disturbance to the remains.
   
   
2. Investigator
   
   
   1. When investigating found bones, request the assistance of a forensic anthropologist by contacting [designated RCMP officers in North Battleford or Regina].
      
      
   2. Do not handle, mark or move any bones, surrounding soil or foreign objects at the site.
      
      
   3. If there are indications that bones are recent and death may not have been natural, proceed with a criminal investigation.
      
      
   4. If bones are historical, the anthropologists will take possession of bones and artifacts and comply with all Provincial Acts which require the recording of the site and proper handling of the remains.

H. 1. b 2. 5. Historic sites are protected by the Provincial Heritage Property Act. If a site is suspected to be historic, request the assistance of a provincial archeologist by contacting:

• Heritage Branch Archaeological Resource Management.

Example: The New Brunswick Government's Protocol for Accidental Discovery of Human Remains.

This protocol divides discoveries of human remains into three categories:

• archaeological remains,
  
  
• 20th century cemeteries and family plots ("these include human remains buried in neglected and overgrown early twentieth century cemeteries and family plots") and
  
  
• "legal evidence" ("all other human remains that are discovered should be treated as potential legal evidence associated with a criminal act and treated as such.")

The protocol then stipulates that "the RCMP would be the lead agency. The RCMP would decide what course of action to initiate." In due course, the other parties involved could be the Coroner's Office, Archaeological Services, or the Chief Medical Officer's Office, but that would be up to the RCMP to decide.

The sequence of events specified in the protocol, in the event of discovery of human remains, is the following.

• Halt all activities. "Until determined otherwise, the remains should be treated as evidence in a criminal investigation. If the remains are found in the bucket of heavy equipment, the bucket should not be emptied as physical evidence may be destroyed."
  
  
• Secure the area. "The area should immediately be designated as Out of Bounds to all personnel and the public. Depending on the weather and other conditions, the human remains discovered should be provided with non-intrusive protection, such as covering with a cloth or canvas tarp (non-plastic preferred)."
  
  
• Inform the RCMP. "The nearest detachment of the RCMP must be informed immediately.... The RCMP will make a decision as to whether the Coroner and/or Archaeological Services should be involved...."

Once those first-phase actions are taken care of, the subsequent phase is expected to proceed as follows.

• If (the site) is concluded to be related to a crime, RCMP specialists will inform the Coroner, collect data, and remove the remains.
  
  
• If the RCMP determine the situation not to be associated with a criminal matter, then Archaeological Services will be consulted to determine the proper course of action.
  
  
• If Archaeological Services determine that the human remains are not associated with an archaeological feature but still have to be removed, certificates of removal are required from both the Coroner's Office and the Chief Medical Officer....
  
  
• Some investigation may be undertaken to determine if living relatives exist, and an appropriate burial location will have to be identified and arrangements for re-interment be made.
  
  
• Work can only re-started in the vicinity of the discovery once clearance has been received from the authorities and agencies concerned.

Other Recommended Practices

The report entitled Federal Archaeological Heritage: Protection and Management concluded that "when disinterment of human physical remains is negotiated with native or other interest groups on the merits of the individual case, resistance has tended to be infrequent."⁷⁰ That is not to say that any group's feelings or opinion should be considered a foregone conclusion. In the words of one expert report:

North American Aboriginal peoples have differing views concerning burial excavation, study and disposition, or do not share common views with the same intensity.

• Some groups favour excavation by trained personnel (including non-tribal members) and museum curation (i.e., storage).
  
  
• Others condone excavation only where burials are unavoidably threatened.
  
  
• Still others oppose any disturbance of human remains including excavation, analysis and storage.
  
  
• Finally, some groups opposed to long term curation and who question the societal value of studying human remains want burials reburied immediately upon discovery, thereby precluding any opportunity for scientific analysis....

On the other hand, most professional archaeological and physical anthropological associations across North America endorse burial excavation and analysis. They also question universal re-burial of skeletal remains except where direct descendance is established, as do various medical, paleological, museums and other associations. From the scientific community's perspective, it is generally argued that the benefits to society derived from the scientific study of ancient human remains outweigh the interests of a few contemporary groups. Disagreement over the use and disposition of archaeologically recovered ancestral remains has increased in recent years. This has increased misunderstanding between interest groups.⁷¹

The risk of misunderstanding cannot be eliminated altogether; but it can at least be reduced by proper consultation. That is an area where the archaeological profession has taken an increasing role in recent years. It is therefore becoming commonplace for archaeologists to be assigned to conduct such consultations, as part of their overall archaeological project, whether it is a research/survey initiative or a response to a fortuitous discovery.