Cemetery as archive: A critical legal geography of two chronotopes

Legal chronotopes and methods

The mutual constitution of law and space is a recurrent theme in legal geography scholarship (Blomley, 2016; Braverman et al., 2014; Philippopoulos-Mihalopoulos, 2018) and the terms of that relationship have a profound effect on people's experiences of the world (Delaney, 2010). Navigating law's bounded spaces are individuals, whose existence is marked by legal certificates of birth and death. It is a timed existence, a lifetime if you will, where institutions like education, marriage, and retirement tell the stages of juridical being. Even within the year, legislated holidays centre around birth and death and the pervasiveness of Christianity's influence on Western notions of time becomes all the more apparent. This idea of time as linear conjures the image of a natural and irreversible progression (Greenhouse, 1996) and legal scholars have noted that this geometric orientation is key to common law's ontology and the state's consolidation of power (Greenhouse, 1988, 1996; Mawani, 2014; Parker, 2011; Renard Painter, 2019; Valverde, 2015).

While time is often assumed as natural and rarely problematized in scholarship (Mawani, 2014, 2015), Indigenous scholars consider the centrality of time in Western narratives to be philosophically juxtaposed to the ontological position that land occupies for Indigenous relationships (Coulthard, 2010; Deloria, 2003; Fixico, 2013). Within colonial contexts, like Canada, the vantage point of a single, unravelling spool of time, places the colonized Other in the past and the evolved settler, as the custodian of progress (Deloria, 2003; Said, 2014). Fittingly, the law's organization of space and time mirrors the orderly arrangement of the assembly line, a construction that provides the suitable conditions for the accumulation of capital (Kulchyski, 1992, 2005), and the homogenization of closed space (Poulantzas, 1980). Law, as a commanding form of communication, ‘creates, sustains and dissolves’ legal spaces and places (Harvey, 1996: 261) and its narrative spacetimes provide an important avenue for critical insights into the dynamics of colonial governance.

Recognizing the arguably dialectical relationship between space and time in legal discourse, Valverde (2015) makes the case for the use of literary theory in analysis. Borrowing from Bakhtin's work on the spatio-temporalities of genres, Valverde (2019) conceives of the legal chronotope as the set of techniques materializing in the sphere of governance that necessitate and produce specific spatio-temporal logics. Further highlighting the centrality of the linear construction of time, the governance around the body at both birth and death provides compelling illustrations of these legal chronotopes at work. Jurisdictions in the United States, for example, bar terminations of pregnancy based on differing temporalizations of fetal development in the womb (Inniss, 2020). In death, there are multiple temporalities at play and the discontinuity of life triggers laws pertaining to the fate of the departed, as well as the disposal of physical matter left behind (Conway, 2016). As the spatiality of death's hour shifts from the heart to the brain, legal preoccupations change from certification to organ donation to sanitation. From requirements for morgues on cruise ships to licensed vans for bodily transport, the natural processes that follow death mean that time and space are importantly connected in a number of areas of law. Moreover, the shift from biographical time to interment and memorial time is permitted in specific spaces, none more familiar in Canada than the registered cemetery.

Corresponding to Valverde's (2015) endorsement of Bakhtin's concepts in legal analysis, the tool of the chronotope allows for an understanding of how cemetery law is assembled, and with what effects. Here, terms like ‘law’ and ‘legal’ are used in the wide-ranging sense, as religious, spiritual and cultural norms demonstrate the multiplicity of perspectives, what Bakhtin (1981) calls ‘heteroglossia’. At the same time, it is essential to recognize that power plays a role in the suppression of voices, and the people who classify and qualify cemeteries are doing so ‘from within the matrix of relationships they share with others’ (Borrows, 1999: 554). Consequently, both jurisdiction and mood are two necessary considerations. First, the ‘games of jurisdiction’, as Valverde (2009) writes, are always afoot, and in cemetery law, the ‘who’ and the ‘how’ of authority are perhaps more significant than the ‘where’. Offering an indignity to the deceased, for example, is subject to federal criminal law, whereas the decision to protect the dead, or leave them undisturbed, rests in the hands of a responsible authority mandated under provincial law. Moreover, the division of constitutional powers between provincial and federal governments, sees the province maintain authority over property (s. 92(13), and the federal government retain jurisdiction over ‘Indians, and Lands reserved for the Indians’ (s. 91(24)) (The Constitution Act, 1867). Since governments are reluctant to encroach on each other's jurisdiction when it comes to matters of importance to Indigenous peoples, culturally significant sites may have limited statutory protections (Blair, 2005). Second, death is a highly emotive matter, and mood, or ‘the affective and aesthetic dimensions of different governance rationalities’ (Valverde, 2015: 78), is a variable with profound influence. The spaces of the dead can be sacred and revered in one context, and a nuisance and feared in another. What is more, resistance and controversy have a way of altering prevailing temperaments. Importantly, relationships with the dead change over time, and what might be considered a romanticized garden cemetery in one century, could be perceived as a waste of space in another.

Since a chronotopic analysis necessitates contrast to see the strong connection between its forms of temporalization and spatialization (Valverde, 2019), this research endeavoured to answer two related questions; what is a legal cemetery? And what is not? Interestingly, the law answered the question through another legal chronotope: the ‘burial site’. The assigning of this classification corresponds to the linear temporalities of the law that positions Indigenous ancestry, as well as their embodied connections to land, in the distant past. Rather than a representation of continuity and belonging, like the narratives of the cemetery, the burial site chronotope triggers narrative of discontinuity. Such a temporal construction implies that present day Indigenous peoples are utterly distinct from their predecessors and diminishes the value of keeping ancestors in place.

Taking my cue from legal archaeology (Simpson, 1996), a method that reconstructs the socio-economic and historic contexts of litigated cases (Threedy, 2009), I endeavoured to plot the statutory narrative of the cemetery and burial site chronotopes, and understand the affective and aesthetic dimensions that gave rise to their development. Beginning with statute, I chronicled the key legislative definitions and amendments to cemetery law from 1850 to today. Next, I investigated the sessional papers, committee meetings and parliamentary debates in the years proceeding legal developments. To further an understanding of the mood of the law, I expanded my scope to the discourse on cemeteries and burial sites in sermons, newspapers and case law. In the end, the paper reveals the prevailing temperaments and legal processes that created these chronotopes and speaks to the systems that sustain them. Before this endeavour, however, a quick note on the archive.

The archive

The preservation of records is intimately connected with the state. For most administrations, it is unimaginable to think of life without files or official paperwork (Vismann, 2008) and institutions depend on the archived arrangement of endless documents (Latour, 2010). By committing the exploits of government to paper, colonial agents chronicled the production of social categories and the legal representations that have become inherited materials and arguably, inherited constraints (White, 1985). Sites of mutual remembering and forgetting, colonial archives are ‘institutions that fashioned histories as they concealed, revealed, and reproduced the power of the state’ (Stoler, 2002: 97). Through a process of discrimination and selection, specific files are granted the privileged status of being ‘archivable’ and thus worthy of preservation (Mbembe, 2002). The archive, as Foucault (1972) has commented, is not ‘the sum of all the texts that a culture has kept upon its person as documents attesting to its own past’ but rather, it ‘is first the law of what can be said, the system that governs the appearance of statements as unique events’ (pp. 128–129). These insights have facilitated a scholarly ‘archival turn’ from the archive-as-source of the history of the state to the archive-as-subject, ‘a rethinking of the materiality and imaginary of collections and what kinds of truth-claims lie in documentation’ (Stoler, 2002: 94). Such exercises are commonly guided by a desire to uncover the forces behind the production of qualified knowledge, and the corresponding exclusion of other ways of knowing (Stoler, 2002).

The link between law and the archive has been the subject of much scholarly commentary (see, e.g. Derrida, 1996; Mawani, 2012; Stoler, 2002, 2010; Vismann, 2008). Derrida (1996), in his oft cited Archive Fever, highlights the juridical status of the archive by recalling its etymological roots in the term arkhē: the place ‘where things commence…’ and ‘where men and gods command, there where authority, social order are exercised…’ (9) (emphasis in original). Beginning with the principle of commencement, Derrida conveys the archive's relationship with linear time. Here lies a first imaginary of the archive. The interred documents of ruling elites, assembled according to the time of their creation, are woven together to craft a narrative that connects a chosen beginning to a present end (Mmembe, 2002). The power of the state rests in its ‘chronophagy’, the ability to consume time through document destruction and/or the purification of history through the erasure of antagonisms (El Shakry, 2015; Mbembe, 2002). The colonial archive, and the collective memory it purports, cannot be separated from its institutional roots. Law too, exhibits such temporal effacement. In British common law, the doctrine of legal precedent ensures that law's own history remains relevant to the present and future (Mawani, 2012). References to cases from centuries ago can help resolve disputes in the present day and so, the law only accumulates and never really passes (Greenhouse, 1988). At the same time, law's concerns with progress ensure that it is often compelled to denounce prejudices of the past without recognizing how complicit the law is in the production of ongoing violence (Povinelli, 2002).

The archival principle of commandment relates to the power over knowledge production and what Mbembe (2002) calls, the illusion of collective ownership. Here lies a second imaginary of the archive. Echoing law's own vocation, the materials found in the archives are expectant and reveal the elaborately planned utopias of God inspired men. Notions of improvement are a main articulation (Bhandar, 2018) and order and cleanliness are unifying themes. The grid, a tool of disciplinary power reminiscent of the quintessential sign of Christian sacrifice, organizes the layers upon layers of archived fragments. Temporal intervals are thereby converted into spatial divisions and the topography of shelves convey the domains of authority and administration (Vismann, 2008). The archive, much like the law, is structured to relay the sequential stages of progress whilst keeping the aspirations of dead white men very much alive. On the one hand, progression is a mode of tracing identity that builds a ‘familial spirit into the custodian of universal reality’ (Fitzpatrick, 1992: 116). Such a composition conjures an imaginary that these institutions belong to everyone (Mbembe, 2002). On the other hand, progression is a consistent pursuit that serves as justification of authority over others. This commanding ideology has been used to legitimize claims of land ownership and has provided the moral impetus to ‘improve’ racialized others. Law's authority, as relayed by Mawani (2012), is founded on this continuous proliferation of privileged documents that ‘renders law not merely proximate or similar to the archive but as the archive’ (p. 352). Notably, law's archive continues to be a source of juridical command (Mawani, 2012) and a reminder of law's past and ongoing violence.

In conducting their own narrative analysis of Kafka's The Trial, Deleuze and Guattari (1986) write ‘where one believed that there is law, there is in fact desire and desire alone’(p. 49) (emphasis in original). Renouncing the transcendence of law, the writers note that it is in the corridors of parliament, and the behind-the-scenes meetings, where law is created and the real problem of justice appears (Deleuze and Guattari, 1986). The archive, too, reveals the immanent desire of the colonizer: the want for continuity. Such a desire is particularly intriguing when pondering the finitude of life. Arguably, death would seem to pose a problem to such aspirations. For the colonizer to retain power over their own narrative, therefore, the sovereign would need to transgress the limitations of life and be, as espoused by Bataille (1991), ‘he who is, as if death were not’ (p. 222). Technologies for preserving a collective immortality would be essential. To capture public attention, these technologies would also need to be visible.

The cemetery

Law is perpetuated through the power of the dead, and whether we are conscious of it or not, societies are thoroughly necrocratic (Harrison, 2010). Under the sacral laws of Rome's Twelve Tables, burial was strictly forbidden within city walls and the rights of sepulchres protected the dead from usucapion (Cicero, 1853). Facing persecution, the early Christians of Rome would gather to worship amongst their believers in catacombs, and the tombs of the martyrs later became what Harrison (2010) calls a ‘cult of relics’. Deriving from the Greek word koimeterion meaning ‘dormitory’ or ‘sleeping place’, the term ‘cemetery’ was adopted by early Christians as the name for their burial ground (Luke v. Kerr, 1891). The association of ‘sleep’ with ‘death’ is a recurring metaphor in Christian liturgy and its figurative phraseology can be found in various passages of both the Old and New Testaments of the Bible, as well as inscriptions on grave markers past and present (Ogle, 1933). Accordingly, the term ‘cemetery’ conveys a view of death as transitory and the faithful Christian departed are understood to wake again through the promise of resurrection (The Sleep of the faithful departed : a sermon, 1863). While individual family tombs, like that of Abraham at Machpelah (Genesis 23), arguably served an important social role of marking the boundaries of ancestral landholdings (Stavrakopoulou, 2010), the collective tombs in the cemetery, a scene that mirrors the rows of single-family homes dotting the suburban landscape, seemingly mark and communicate the foundations of a community.

The spatialization of the dead near or around the church was thought to be advantageous for the soul at the time of resurrection (Strachan, 1850), but as cities became densely populated in the nineteenth century, the grounds couldn't meet the demands of communicable disease. Narratives of ‘hemmed-in churchyards, pestiferous and obscene’ (Dickens, 1853: 140) speak to the general mood of the times, and aligning with the biopolitical regulations of market-driven societies, jurisdictions began prohibiting metropolitan interment and relocating deathscapes to the urban periphery. Reviving the term ‘cemetery’, these idyllic garden landscapes house a generation of men whose architectural and spatial preferences in life continue to influence an industry in death (Francaviglia, 1971). For it is the absence of death that is so characteristic of the sentimental garden paradises, prompting Douglas (1977) to argue that the cemetery functions much like literature because the setting allows for the ‘prospect of borrowed emotions’ (p. 210). Later, death's absence came to accompany the funeral customs of death's denial that continue to occupy our narratives of mortality. But there is a reason why cultural technologies are evaluated according to whether they ‘'stand the test of time’ rather than the ‘test of space’ (Inwood, 2019), and the neglect of ‘God's acres’ resurfaced with generational divide. To address the fading beauty of age, the cemetery space needed the eternal care of law. Yet, the preservation of the past conflicted with the future interests of property.

In an effort to have their graves eternally cared for, many resolved to allocate funds for cemetery maintenance in their wills. However, such bequests were often deemed void because they violated the common law rule against perpetuities. The rule recognizes the potential harm in the use of a legal instrument, such as a deed or will, in creating long-lasting criteria for property ownership. By limiting ‘dead hand control’, the rule against perpetuities prevents the suspension of alienation (Quarterly Review of Jurisprudence, 1828) and ensures that the dead cannot retain power over property in perpetuity. Although cemetery property regimes ensure that ‘[e]ach individual has his own place, and each place its individual’ (Foucault, 1995: 143), private aspirations would require a public purpose to overcome law's limits on the dominion of the dead. Consequently, legislatures turned to the scale of statute ² to create perpetual rights of sepulchre and courts began to recognize that the ‘difference between a cemetery and a churchyard or burial ground appears to be that in the latter a grave or burial plot cannot be obtained in perpetuity, while in the former it can’ (Luke v. Kerr, 1891).

The contrasting spacetimes of the cemetery and churchyard became problematic for legislature when historical societies began demanding that deathscapes of patriotic significance have the same protections. Fearing the influx of immigrants and the influence of American patriotic imagery in Canada (Fessenden, 1909), these organizations made it their resolve to educate the masses and foster love of the imperial. Substantiated by a speech delivered by the president of the Ontario Historical Society (OHS) in 1899, members were especially interested in fostering a ‘proper Canadian and British national sentiment’ where the celebration of early missionaries and explorers could assist in an understanding of the ‘evolution of civilization and culture…’ (Coyne, 1899: 34). For them, the preservation and recording of history was of practical utility, as ‘the continuity of national life…’ according to one OHS president, ‘is dependent upon unity of national purpose, and this can only be maintained by cultivation of knowledge of the past’ (Coyne, 1898). Since many ‘pioneer’ burial sites were located near churches and the epitaphs of individual gravestones displayed reverence to the Christian faith, these burial grounds provided record of the religious morality of early settlers. The persecution of the loyalists in the Thirteen Colonies and the subsequent suffering of settlers wandering the wilderness of Canada, were narratives of central importance that drew ties to stories in the Bible (Killian, 1973; Morgan, 2001) and gave white entitlement to land a frontier aesthetic (Razack, 2021). Writing of the seizure of property and forced exile of refugee loyalists following the American Revolutionary War, one historian made an implicit comparison to the Israelites by noting that the settlers were not ‘entering on a land “flowing with milk and honey”’(Tasker, 1900). Known as the ‘Loyalist myth’, the cultural framing around early settlers ‘took on the configuration of the Christian process of agony, defeat, and resurrection’ (Duffy, 1982: 23), and their burial grounds provided record of white generational connections to land.

After a consolidated effort on the part of a number of historical societies, Ontario legislature passed several amendments compelling municipalities to care for neglected cemeteries (Cemetery Act, 1927: s36–s41). Many pioneer burial grounds are now protected by cemetery registry and their signage provides a lasting impression of the struggles endured in the building of a nation (Green, 1931). Separating the sacred from the profane, registration is the state's form of consecration. The cemetery space, now blessed with the temporal protections of perpetuity, transcends the earthly expectations of economic progress. No longer defined ‘as land set aside to be used for the interment of human remains…’ (Cemetery Act, 1913 s.2(a)), now a cemetery is only a cemetery, if the government says so. ³ In fact, the latest definition is not even about human remains. The space is defined by law and time, more specifically, settler time.

Whether referring to the idyllic garden sanctuaries of proprietary slumber or the battered resting places of pioneers and ‘founders’, the registered cemetery gives visibility to time. Add symbols of patriotic imagery and signage relaying stories of struggle, and the spaces become the ‘knots’ in the tied narrative of a single story (Folch-Serra, 1990). Much like Bakhtin's (1981) discussion of the idyll chronotope in the novel, the cemetery represents a unity of generations. As spaces of protected heritage, cemeteries affirm who belongs to an imagined, culturally cohesive nation (Hall, 1999). But national consciousness ‘organizes itself around particularized memory’ of ancestry (Bakhtin, 1981: 137), and narratives of a public nature, eagerly conceal their embarrassments.

The burial site

Walter Kenyon, a self-proclaimed ‘sophisticated garbage collector’, was unrepentant when he was arrested for offending the dignity of human remains in 1976 (Downey, 1980). The issues at stake, according to Kenyon, were not of a legal nature, but rather one of moral and social grounds (Kenyon, 1982). After all, he was a licensed archaeologist, and his job was to excavate burial grounds and catalogue skeletal remains for public record. By foregoing the required supervision of a medical officer of health and not having the proper certification to remove remains from a cemetery, Kenyon became the first archaeologist to face charges for violating the Cemeteries Act, 1970 (The Gazette, 1977). For many members of the profession, the charges were an outrage. They argued that cemetery legislation was not applicable to archaeological sites because their establishment predated the government that created the law (Cooper, 1977). Due to their age, burial grounds of an archaeological interest fell under the jurisdiction of heritage legislation, and once excavated, bones were considered data (Redden, 1977). Reflecting on the moral implications of digging up ancestors, one archaeologist spoke to proximity in time and expressed the stark difference between exhuming a relative of shared lifetime versus one of ancient lineage (Cooper, 1977). Notably, the profession, along with the law that protected archaeological interests, demonstrated an ambivalence to the reverence of Indigenous ancestry and how bones are sacred no matter their remoteness in time (Hopkins, 1976). The provisions of cemetery law in the 1970s, however, had not yet discriminated between deceased persons and the avenue proved an effective route for citizen's arrest. The only caveat was that there needed to be physical evidence of a cemetery, and proof of legitimacy meant violating the very sacredness that was deserving of such protections.

While the arrest of an archaeologist effectively placed a moratorium on the unearthing of graves for scientific curiosity, Indigenous resistance to desecrations continued to mount with the growing threats of infrastructure. Labelled a clash between tradition and progress by journalists in 1978 (Quinter, 1978a), the proposal for an expressway on a known Indigenous burial ground in Windsor, Ontario escalated demands for legal protections. Evidently, archaeological records of skeletons taken from the location in the 1930s, and again in 1967, didn't convince government officials that the burial ground still existed (Legislative Assembly of Ontario, 1978). The bones, then housed in the National Museum of Man in Ottawa, were deemed ‘part of Canada's heritage’(Quinter, 1978a), but their sacred grounds were an inconvenience. The rush to complete the highway took precedence, and the mayor's response to Indigenous-led objections remained focused on concerns for the delays to development (Quinter and Rennie, 1978). In response, Indigenous-led protesters erected a fence made of snow around the burial site (Quinter, 1978b) and confrontations intensified to a federal level when members of the Nations of Warriors threatened to exhume the body of Sir John A. MacDonald (1815–1891), Canada's first Prime Minister (The Calgary Herald, 1978). Despite protests, the sacred grounds were never given cemetery status or heritage protection (Whipp, 1983) and a cloverleaf interchange, along with a small park, now mark the land.

Although the desecration of burial grounds led to written proclamations as early as 1797 (Cruikshank and Hunter, 1935), the above illustrations of resistance demonstrate that legislation did very little to protect these sites. Much like today, cemeteries in the 1970s were principally governed by a ministry responsible for consumer affairs and the requirements for perpetual care funds meant that, administratively, they were treated like financial institutions (Legislative Assembly of Ontario, 1977). With no provisions for unmarked graves, owners of properties were effectively bulldozing sites without reporting discoveries or consulting with interest groups (Legislative Assembly of Ontario, 1976). When findings were reported, property owners and developers faced costly delays to their projects and in some cases, risked bankruptcy. While promises of consultation deescalated tensions, procedures for Indigenous participation in decision-making failed to make it passed the floor of legislature. Archaeological reports in the 1980s show that the number of unmarked graves mounted in tandem with bureaucratic developments (Fox, 2013), yet it wasn't until a decade later that parliament legally defined these spaces in cemetery legislation.

Distinguished from the cemetery in 1989, the term ‘burial site’ references land that contains human remains ‘that has not been approved or consented to as a cemetery in accordance with this Act or a predecessor of this Act’ ( Cemeteries Act (Revised), 1990 , s. 1). ⁴ Upon discovery of a burial site, and once all foul play has been ruled out, the Registrar of cemeteries may order an investigation to determine the cultural origins of a burial site and a licensed archaeologist has 5 days to advise the legislative authority of the probable ancestry of the remains. Of the possible designations found in the legislation, the Registrar may define the space as; ‘(a) an unapproved aboriginal peoples cemetery ⁵ ; (b) an unapproved cemetery; or (c) an irregular burial site’ (s. 71). Per the legislation, an ‘unapproved aboriginal peoples cemetery’ means:

land set aside with the apparent intention of interring therein, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were one of the aboriginal peoples of Canada. ( Cemeteries Act (Revised), 1990 , s. 71 (4))

The classification, which John Borrows (2002) has called an ‘offensive designation of the places in which our ancestors rest…’ (p. 41), contains some interesting temporalities that are important for understanding the processes that follow. First, approval of a cemetery, according to the burial site provision, is linked to the timing of legislation. Hence, any cemetery that was established prior to the legal developments of the nineteenth century would be unapproved (Johnston, 2006). Next, the definition of the ‘unapproved aboriginal peoples cemetery’ articulates a disconnection between the peoples of the past and peoples of the present by using the word ‘were’. At first glance this may seem arbitrary, but it coincides with the perceptions of time that are so characteristic of Aboriginal Law. This colonial narrative, as evidenced by judicial interpretations in rights case (see e.g. R. v. Sparrow, 1990), conveys the message that Indigenous peoples of the past bear little resemblance to their contemporaries. Lastly, the term ‘intention’ suggests a future orientation and any investigation would need to demonstrate evidence of planned sacredness. If the Registrar determines that there was no intention, the grounds may be labelled an irregular burial site and all decision making for the deceased falls to the landowner. However, if there is determined intention in a manner keeping with known cultural affinities, and the remains are not those of a solitary individual, the Registrar may declare the site an unapproved cemetery. In such an event, both the owner of the land and representatives for the deceased are to be notified. Per the regulations, a representative must respond within 2 weeks of the notification or the powers to negotiate are forfeited (O.reg. 133/92, s.1).

With regard to the ‘unapproved aboriginal peoples cemetery’, representatives for the deceased are federally recognized members of the nearest First Nations Government or an Indigenous community with close cultural affinity to the interred. The declaration of an unapproved cemetery ensures that a representative's consent is required before any further disturbance to their ancestors. However, the legal regime also recognizes the interests of the landowner and both parties are encouraged to negotiate a site disposition agreement or the matter may be referred to arbitration ( Cemeteries Act (Revised), 1990 : s. 72(1–4)). Given the ongoing relationship between Indigenous communities and their ancestors, the practice of disinterment is a violation across numerous cultures and legal traditions obligate nondisturbance (Bell and Napoleon, 2008; Deloria, 2003; Johnston, 2006). While some landowners have altered their development arrangements to preserve burial sites intact, the nature and costs of binding arbitration mean that Indigenous communities may have little choice in removal decisions (Johnston, 2006). Moreover, the costs of compliance may deter property developers from reporting their discoveries in the first place (Legislative Assembly of Ontario, 2024). Consequently, the chronotope of the burial site contours the narratives of law in very different ways from the approved cemetery. It is one where assertions of Crown sovereignty negate Indigenous claims to their heritage (Ferris, 2002). Furthermore, permanence and preservation are viewed as negotiable and ancestry is spatially and temporally evaluated through the lens of a legal culture that has been, to date, directed more towards assimilation than reconciliation.

Chronotopes in court

Turning now to the courts, we see, as Bakhtin (1981) writes, how the ‘process of assigning meaning also involves some assigning of value’ (p. 257) and how ‘every entry into the sphere of meanings is accomplished only through the gates of the chronotope’ (p. 258). The closure of approved cemeteries provides an interesting scenario for demonstrating the contrasting chronotopes of the law. Closure in this case is not inactivity to burial, but rather, the process where human remains are relocated and the Registrar issues a certificate that renders the land no longer a cemetery (Ontario Historical Society (Re), 2007). Of course, this runs contrary to perpetual care obligations, but cemetery legislation does allow for closures in the public interest. Although defining ‘public interest’ depends on the context and often necessitates a balancing of conflicting ideas, the Ontario License Appeal Tribunal ⁶ has identified compliance with the Cemeteries Act (Revised), 1990 as an element of public interest and has noted the important values of ‘maintenance of a cemetery, including its markers and features; safety of the public; and preservation of the dignity, quiet and good order of a cemetery’ (Ontario Historical Society (Re), 1999).

In a case involving the contentious removal of the Clendennen cemetery in Markham, Ontario, the Tribunal found that the Registrar's closure order was not in the public interest and the decision reveals some significant spatio-temporal logics regarding cemetery preservation. First, the Tribunal could not conclude that the proposed relocation offered more dignity, both now and in the future, to the cemetery than its present site (Ontario Historical Society (Re), 1999). Next, the Tribunal felt that cemetery legislation ‘acknowledges respect for the family's original choice’ and that a relocation would be inconsistent with the wishes of the deceased (Ontario Historical Society (Re), 1999). Lastly, and from a heritage perspective, the accepted principle of minimizing or eliminating impacts on a heritage resource, per the Tribunal's decision, clearly favoured retaining the cemetery in its original location.

The case of the Clendennen cemetery is one of less than a handful of appeals related to the closure of an approved cemetery. Interestingly, as part of their argument countering the closure procedure of the Registrar, the appellants reasoned that the cemetery should be considered ‘unapproved’ because its establishment predated the cemeteries legislation of 1914. Concerned that the proposed residential development would be more in the public interest than maintaining a neglected cemetery, the appellants felt that a site disposition agreement presented more favourably than testing the matter through the public interest standard. However, the Tribunal dismissed this stance by interpreting the provisions on burial sites to pertain to spaces that are ‘discovered and not previously known to the Registrar’ (Ontario Historical Society (Re), 1999) [emphasis added]. Accordingly, an approved cemetery would have some record of existence. Conversely, the unapproved site is one where the act of discovery shifts the understanding of ownership. Spaces that are not marked in the same way as the cemetery are far more likely to be unknown to the Registrar and their closure, according to the law, is not a matter of the public interest.

Contrasting the marked time of perpetuity, the burial site chronotope is first distinguished through the bureaucratic act of discovery. In colonial contexts, ‘discovery’ has a privative power in that once something is discovered it is transformed and endowed with the norms of the discoverer (Eliade, 1954; Fitzpatrick, 1992). For many Indigenous nations, their legal traditions have demanded interventions to prevent the desecrations of physical and/or bureaucratic discovery. Before the courts, Indigenous spatio-temporalities are confronted by the conflicting spacetimes of Western law and matters pertaining to burial grounds reveal how chronotopes are instrumental to the chronophagy of the colonial archive. While these cases vary in terms of facts, as well as legal questions, there are two contestations pertaining to space and time that are highlighted in order to show how the burial site chronotope initiates different legal narratives and facilitates the archiving force of the law: (1) contested heritage and (2) contested boundaries.

Contested heritage

The burial site provision places the archaeologist as the authority on heritage. However, the colonial archaeological record of a given location does not always coincide with the historical claims of First Nations. Echoing the principle of commencement, the archaeological construction of Ontario Iroquoian history asserts that the population was eradicated in the mid-seventeenth century by the New York State Iroquois Confederacy. Accordingly, the narrative alleges that present-day populations are the descendants of the ‘enemy’ New York State Iroquois, a faction who settled in Ontario during the American Revolutionary War (Ferris, 2009). Following the discovery of burials on a known Iroquoian village site near London Ontario, the Oneida First Nation asserted their cultural affinity to the deceased and argued ‘that the cemeteries should not be moved and that the dead should be allowed to rest in peace, properly protected against future interference’ ( Arbitration Award, 2006 ). Weighing the interests of the developer and the ‘perspectives’ of the Oneida, the arbitrator eventually ordered the partial removal of remains (Johnston, 2006). Notably absent, as remarked by Indigenous legal scholar Darlene Johnston (2006), was any discussion of preservation or dignity.

When the Oneida questioned the constitutionality of the Cemeteries Act arbitration process and the forced negotiation of a site disposition agreement with a landowner rather than the state (Ferris, 2014), the Province of Ontario responded by contesting the Oneida's understanding of their own heritage. Referencing the eradication of the Ontario Iroquois, the Crown's archaeological expert wrote a report discrediting the Oneida's claims to their ancestry (von Gernet, 2006). The argument, which has been used in a case pertaining to treaty rights as well (R. v. Ireland, 1990), insists that the present-day Oneida First Nation are the descendants of ‘immigrants’ and thus not privileged to their heritage. As former Ontario archaeologist Neal Ferris (2014) has noted, the narrative is of practical utility for the judicial process and denies Indigenous peoples' legitimacy over their own history. Importantly, the legislation helps shape these narrative possibilities.

Contested boundaries

Reflecting the principle of commandment, the burial site provisions give authority to the archaeologist to define space and bring order to sacredness in accordance with the familiar bounded cemetery. For the Poplar Point Ojibway First Nation, the long rapids of the Namewaminikan River, and the dramatic cascades of High Falls, are sacred places where the living can communicate with the dead (Ross, 2005). Even though the community is featured in the 1814 written records of the Roman Catholic church, the First Nation was not included in the 1850 Robinson Superior Treaty and are not recognized by the Government of Canada as a registered Indian band within the meaning of that classification under the Indian Act (Bell and Napoleon, 2008; Hamilton et al., 1995). So when the Ontario Ministry of Natural Resources (OMNR) partnered with Nipigon Power Limited (Nipigon) to commence a new hydroelectric project along the sacred paths of their ancestors, the First Nation was not included in the consultation process with legally recognized Indigenous communities. Upon learning of the project, the Elders of the Poplar Point insisted that the region of the High Falls was sacred and that the project would desecrate ancestral burial grounds (Hamilton et al., 1995). In response, government officials and industry stakeholders compelled the Elders to provide visual proof.

Relying on the Crown archaeological survey, development continued and skeletal remains were later found. In preparation for a site disposition agreement, the archaeologist needed to define the boundaries of the burial grounds. For the Poplar Point, the sacredness of the High Falls area was not limited to the burials, and the construction of the dam desecrated a much larger spiritual complex (McCrady v. Ontario, 1993). Moreover, the disruption to the flow of water threatened the ongoing relationship and communication with their ancestors. Commenting on the question of the physical boundaries of the sacred place, archaeologist Scott Hamilton explained to the Registrar that such markers ‘reflect a notion of the bounded “sacred precinct” of a cemetery. This is a Judeo-Christian concept that has little relevance to Native spirituality’ (McCrady v. Ontario, 1993). In the end, the spiritual significance of the High Falls was of little importance to the courts. In the eyes of the law, cultural beliefs did not determine territorial limitations, and the sole criterion for a boundary marker was the presence of human remains.

These legal narratives reveal the tales of two chronotopes. One is associated with protection and dignity, while the other is unapproved and its preservation negotiable. Interestingly, the courts often refer to the burial site provisions as a protection mechanism (see e.g. Hiawatha First Nation v. Ontario (Minister of Environment), 2007) because they may trigger consultation with Indigenous representatives. Certainly, the burial site chronotope provides a path to the permanency of cemetery registry. Yet, this chronotope also facilitates legal narratives that are commonplace in colonial contestations over sovereignty. Revealing the archiving force of the law, ruling elites have privileged the cemetery with permanent protection and simultaneously created a legal system that assists in the erasure of Indigenous heritage. Law's force is particularly discernible when it defines the temporal existence and validity of peoples and spaces (von Benda-Beckmann and von Benda-Beckmann, 2014). Freezing Aboriginal rights in the past (Borrows, 1997) and permanently protecting spaces of white heritage value, are just a few examples of how the legal manipulation of time and space nourishes the ‘lawfulness’ of the very historical narrative that gives law its authority.

Concluding thoughts

In statute, we can see the framework of law's storytelling. Legislation sets the stage for how events will transpire. It defines the roles and responsibilities of the various actors, and ultimately plots the course for the processes and outcomes that are to follow. While narrative is certainly an essential part of argument and the best lawyers are often those who master the art of presenting a good tale (Stern, 2018), it is the legal frameworks of doctrine, statute and constitution that encompass the architecture for how a story unfolds. Here, I have presented how a chronotopic analysis reveals the violences of the law in two key ways. First, these violences are evident in how the burial site is defined by what it is not. It is not a cemetery, and therefore, its legal essence is one of exclusion. Narratives of discontinuity are prevalent in judicial decision making, legislature and the news media, and the repeated ‘timing’ of Indigenous connections to land devalues their corporeality and fundamentally questions the authenticity of their mourning and memory. Next, the narrative of protection conceals a story of dominance and denies the safeguards of cultural and political continuity (Durrant, 2014). While the cemetery reminds society of what and who is to be remembered, the burial site is a chronotope that is first and foremost a tool for forgetting.

Extending Valverde's (2015) discussion of literary analysis and the law, I want to conclude by highlighting the relationship between chronotopes and the public interest. Within the body of the law, terms are defined and often, a forward-thinking legislature is not fully aware of what it intends to accomplish in its rules to eliminate vagueness in definitions (Moore, 1980). At other times, however, legal definitions are constructed to curtail interpretative freedom (Macagno and Damele, 2015). The ‘public interest’ is one of those nebulous concepts that is conjured up in land use law and its discretionary determination often mirrors the mood of the times. Arguably, this article demonstrates that the cemetery is a permutation of the idyll chronotope, in that it is an enclosed space where the unity of life generations reflect values and beliefs of human connections to the earth (Bakhtin, 1981). Folklore and a familiar intimacy guides the narrative of these chronotopes and economic development can proceed with the protection of the idyll in mind. Like the design of the interchange of Highways 427 and 401, located near Toronto's Pearson International Airport, where construction preserved the sanctity of the Richview Cemetery in the midst of the traffic corridors (Legislative Assembly of Ontario, 2009). The idyll chronotope is also evoked, as Valverde (2015) writes, in laws that protect ‘single-family detached’ havens from the encroachments of industry. In these instances, a resistance to change and the protection of private property interests, both dead and alive, reflect the interests of the public.

The ‘public interest’ also contributed to the protection of a Huron/Wendat ossuary at Tabor Hill in Scarborough Ontario, when developers abandoned the site and public outcry pushed the government to purchase the lands for a park. Here, the public interests swayed from erecting a subdivision to a white church to an ‘Indian museum on the burial grounds’ (Toronto Daily Star, 1956). The persistence of Indigenous groups triumphed in protecting the site and making Tabor Hill Park one of the only legally recognized Indigenous cemeteries on public lands. It hasn't been treated as publicly sacred though, and First Nations have formally requested the site's name to be changed from park to cemetery in the hopes of deterring families from disrespecting the burial mound with such activities as winter tobogganing (Scarborough Community Council, 1998). Surrounding their ancestors, on a street named ‘Indian Mound Crescent’, are the lined up single-family homes that enjoy the property splendours of a park view.

If ‘the truth about stories’, as Thomas King (2003) so eloquently writes, ‘is that that's all we are’, then narratives of cemetery law eliminate the vagueness of the term ‘public interest’. For these stories tell us that ‘public interest’ is white interest. The legal chronotopes of the cemetery and burial site protect the public interest in white heritage and the public interest in white dominant market capitalism. In so doing, the repetitive deathscapes of the cemetery become the ‘common sense’ spaces of death and history. Here lies the cemetery as archive.