FROM JUNE 2024 ISSUE OF WEST END PHOENIX

It’s April. You’re driving, following the curve of Lake Ontario from your West End townhouse, apartment or friend’s couch, headed even farther west. In the hour-and-45-minute journey from Toronto, you watch as the city recedes, giving way to suburbia, giving way to somewhere else. You pass through the gates of Hamilton, with the smoke from its clusters of corroded steel factories intertwining with swirls of seagulls. If you drive even farther still, industry gives way to meadows, stretches of arable land, rustic barns and silos, hawks circling the sky. You’re in Haldimand County now, and you’d better watch where you step.

This part of western Ontario is a bed of burial grounds, many of which belong to Black freedom-seekers. And they don’t exist in isolation. There are similar burial grounds throughout Ontario, to the north in Owen Sound, and farther southwest of Haldimand at Niagara-on-the-Lake, where, in 2022, a Black resident named James Russell handcuffed himself to the Negro Burial Ground signpost during a hunger strike to advocate for the maintenance of the site.

Many old cemeteries where Black people were laid to rest don’t age well over time because there is no one left to care for them or no one with the means to do so; often the municipality they’re located in isn’t even aware that the grounds exist. When that’s the case, sites deteriorate and can become more vulnerable to erasure.

According to the Ontario Genealogy Society’s last update, there are an estimated 66,000 known burial sites or cemeteries in Ontario, but as of 2021, about 20 per cent of them aren’t registered under the Funeral, Burial & Cremation Act. The act is administered by the Bereavement Authority of Ontario (BAO). Once a site is licensed, the BAO steps aside and the duties of owning and operating it are assumed by the municipality or whoever else has applied to be the owner-operator.

But issues are arising with the process of discovering and licensing burial grounds. Most importantly, what happens after these sites are identified; how will they be preserved, protected and honoured?

These questions are at the centre of one particular burial ground in Haldimand, dubbed the Williams-Morris-Burke cemetery, on land that is now private property.

The site is one that 69-year-old Spencer Martin often stares at from across the road after journeying to Haldimand in a rental car from where he lives in the Beaches. There’s a house on the property, with a car parked in the front and open fields surrounding it, separated from the road by a simple brown wooden fence.

Martin is a descendant of family members who are buried there. He has visited the site before, during all the different seasons, but usually avoids spring. In dark jeans, a good jacket to shield him from the rain, and proper hiking shoes, he sometimes goes with his son, who just graduated from university and is always asking to visit. It’s a little different in the wintertime; when the green brush has shriveled and fallen back, Martin says, he can clearly see a tombstone there.

“It negates your whole sense of being,” Martin shares. “You’re almost there. But you can’t reach it. You can’t put your hand on it. And it leaves you a little wanting. These are the people that made you who you are. These are your family.”

Martin has a few family artifacts he keeps at home, including a Bible in which some pages were used to record the names of family members buried on the “Burke farm.” He also has a photo of the family’s matriarchs taken in the summer of 1921. In it, 14 women from the Williams family are huddled together in a semi-circle around Martin’s great-grandmother. His grandmother is also in the photograph. He says their family would frequently gather for picnics and family reunions in the area.

“They’ve got this wood stove fired up,” Martin says of what he can recall from those gatherings he attended in his childhood. “They’re baking pies. And [my grandfather] is cooking this fried chicken in butter! It was to die for.”

The location of the WMB cemetery is where the Burkes, another Black family that Martin is related to – Andrew Burke was his third great-grandfather – originally had a farm. A deed pulled from Ontario’s land registration system shows Andrew Burke sold the land to a white woman named Catherine Harkness, born Windecker, for $320 in 1864, though the lone tombstone on the property dates the burial of a 25-year-old Burke in 1902.

Martin has heard tales of what it was like growing up in Haldimand from a cousin who was raised there; she is older than Martin and currently lives in Washington state.

“All through high school, she never had a date. And she was drop-dead gorgeous. Black, and none of the white boys would ask her out,” he says.

It’s an example of how anti-Black racism from white settlers in the county impacted Black life back when Martin’s ancestors were still alive. Scholar William Felepchuk, who is based in Ottawa, explains why even in death these Black settlers are treated differently.

“White supremacy operates on places of burial by disconnecting the living from the dead,” says Felepchuk. “It prevents the living from being able to maintain that continuity. As a connection to the dead, burial places are such a fundamentally human thing that in order to justify or excuse that kind of destruction, you need to dehumanize the living community first.”

The community of Black settlers to which Martin’s family belonged lived in Haldimand for quite some time, and buried their dead there some decades after Haldimand became a county in 1800.

But someone has to become the owner-operator/licensee of the cemetery once the boundaries of the old burial ground are determined. Often, municipalities take on the role because of the expense and labour that is required to maintain such a site. In another burial ground close by, named the Street-Barnes Cemetery, land where more of Martin’s relatives are buried that had been privately owned was transferred to the municipality, which approved a budget of an estimated $100,000 in County funds through their 2021 Capital Budget to begin maintenance of the site. “[Licensing the WMB burial ground] doesn’t appear to be the highest priority,” says Martin. “We have been trying to find out what’s happening [between] the BAO and the municipality. But it’s circles and circles and circles.”

The BAO says the licensing process, including work with several government agencies, can take two years to complete. Afterward, the cemeteries will be kept in perpetuity, meaning the land can’t be sold or used for other purposes, and communities will be able to freely access the grounds. But first, in the case of the Williams-Morris-Burke burial ground, an archaeological assessment is needed to determine the extent of the burials and to establish cemetery boundaries on the property. The BAO recommended this to the landowner of the site. “Our communications with him started in March of 2021,” according to a representative of the BAO, “with numerous reminders of the legislation requiring his compliance.”

As far as they’re aware, the landowner has hired an archaeologist but hasn’t sent a copy of the archaeological assessment report back to the BAO. There’s no due date to deliver this piece of homework, because, according to the BAO, “a number of factors come into play, including the time required to procure an archaeologist, their availability, and the weather.” The landowner did not respond to calls for comment.

“I’m not comfortable with what’s going on,” says Martin. “There’s a lack of information, and there doesn’t seem to be any great accountability until a site is licensed.”

The problem is that there aren’t a lot of ways to enforce accountability when much of the licensing process requires co-operation from the landowner, who may not like the decision the BAO may make about what will happen to the burial grounds in their backyard.

A good example of how this process can get bogged down, sometimes for decades, can be found in the story of the Street-Barnes Cemetery, located a few minutes’ drive from the Williams-Morris-Burke site. In a green-covered plastic-bound book labeled History of Grand River Valley, North Cayuga and Canboro Townships, Graeme Bachiu, a resident of the area and a documentary filmmaker, points to a sentence mentioning the site in a chapter titled Recollections of 1882. “Then there were several families of colored people – Williamses, Morrises and Burkes. They lived on the Darky Side Road, as it was called.” Other Black families lived near or on the “Darky Side Road,” too, such as the Street family. Stephanie Street, who came from Virginia in 1842, was Martin’s great-aunt through marriage.

Bachiu parks his red pickup truck on an angle off the side of the road and begins walking down a dirt path surrounded by tall, dry grass.

The sky is a palette of greys. The wind blows cold and it rains.

“So here, many burial grounds aren’t well known,” says Bachiu, dressed in a beige jacket and red toque. “They haven’t been maintained, they haven’t been registered. I didn’t think that that was right. As other people inspired me, I started lending my voice to it. I don’t have any family connections or anything like that. I just don’t want them to be forgotten.”

Mud squishes under our heavy boots and in the dark puddles, fresh green clover buds. The land ahead is clear except for a grove of tall trees and tangled bush at the end of the dirt path. There, the cover gives way to a mound of earth obscured by dead leaves, the limbs of trees, some felled by nature, others by a machine. There are toppled tombstones, cracked in pieces, hidden by dirt that, when brushed away, reveal names and dates, like “Alice... daughter of... W... & Henrietta Barnes... died August 10, 1876... aged 8 years.” Purple periwinkle, a signature used to mark burial grounds of Black enslaved people, especially in the United States, vines across the faces of fallen tombstones. The light rain continues for a while.

Wooden stakes are topped with small red flags in the ground throughout the Street-Barnes Cemetery – they signify the possible burial sites of more bodies yet to be uncovered. According to the BAO, there are more than 15 known graves in the Street-Barnes Cemetery. Carrie Barnes, the niece of Black American abolitionist Harriet Tubman, is buried there. She, along with her family members, escaped enslavement in America via the Underground Railroad. “It was a torturous process,” says Bachiu, about the endeavour to license the Street-Barnes Cemetery. “Really, it started in the 1990s, with a descendant named Betty [Elizabeth] Brown, who has since passed away.”

Last year, Haldimand County became the licensed owner-operator of the Street-Barnes Cemetery after a detailed two-year process involving the BAO, the Ministry of Transportation (Ontario) and two property owners. The news was published in the June 2023 issue of the BAO’s consumer magazine, Beyond.

But in fact, the struggle to have the Street-Barnes Cemetery licensed began more than two decades ago. A pattern of government administration dragging its feet during the process is detailed in a thin folder labeled “Black history” at the Cayuga Library and Heritage Centre archives. In February 1993, Brown contacted the Ministry of Consumer and Commercial Relations about the burial grounds, but received no reply. Three months later, in response to a detailed letter Brown had previously sent, highlighting the cultural significance of the burial ground, a letter that was misplaced by the Ministry, an official said they would “get it crackin’.” But communication from the Ministry continued to be neglectful amid staff changes and delayed responses. In 1994, after 14 months of communication from Brown, the site was still unregistered. In the end, it took 30 years for the Street-Barnes Cemetery to become registered from the time Brown sent that first email.

The clouds clear to let a ray of sun through, beaming down on the cemetery through the branches of five tall skinny trees growing in a row. Sunlight reaches the tombstones, warming the rock and any skin we have exposed. It’s five minutes of heaven, divine, until the clouds return, pummeling the ground with hail, which turns to light snow once we arrive at the Canfield Cemetery, not far from the WMB site.

There, in neat rows, crisp tombstones of marble and granite stand in the manicured lawn, steps away from the front porches of residential homes. The commemoration of this cemetery was documented by Bachiu. “I started in 2019 on the Canfield Roots project,” he says. “That took about three years.”

Martin worked with Bachiu on the documentary because it’s partly about his family history. Martin’s mother grew up in Canfield and is buried in the Canfield Cemetery with other Williamses, Morrises and Burkes. Their tombstones are lined up next to each other in the back corner of the site.

“There’s a lot of pride in what freedom-seekers went through [to build] lives for themselves in Canada, after being someone else’s property. I think as a society, we’re obligated to do the work to make sure these sites are protected,” Bachiu says.

That’s part of the issue. Someone else now owns the land that the freedom-seekers chose as burial grounds. In a way, the freedom-seekers have once more become property. But this time, who will speak for the rights of the dead? What happens to their resting place matters; it’s a symbol of Black Canadian history.

“The only thing denoting a Black presence in an area is often a cemetery,” says Felepchuk. “If you erase that, you’re erasing the history of people in the entire area.”

But if a private landowner won’t budge, is there any recourse? Jason Ward, who spent more than 20 years as a courtroom litigator, handling trial law cases at a “feverish pace” through Wards Lawyers PC, the law firm he founded in Ontario, until he retired from law at age 50, thinks there might be.

“I had never had any intention of becoming an expert in Ontario on the law of dead bodies, and things related to death,” says Ward about his career.

“I kind of fell into that role.”

He even wrote a book called Resolving Grave Disputes, published in 2018. While Ward can’t provide legal advice, the WMB case intrigued him for a few reasons. A burial plot can’t be sold; it’s called an interment and is owned by the deceased or whoever the deceased gives it to. So Ward hypothesized that “if this person bought the property with no knowledge that these burial sites were even present, there might be a legal argument that he didn’t technically acquire private property rights over the sites themselves.” In that case, the landowner might not have any say about what happens to the burial grounds on what may otherwise be his private property.

“One of the parties you didn’t mention, who likely should be involved, is the federal government, particularly if it’s suspected that those who are buried were historical figures,” says Ward. “That’s going to attract the attention of heritage departments of the government. I would imagine they would usurp the BAO and play a very pivotal role in what happens to that burial site.”

Both the federal and provincial representatives in the area were contacted for comment. Bobbi-Ann Brady, the member of provincial parliament, says she has not been approached about any of these cemeteries and would become involved only when contacted by constituents and it became a provincial issue. Leslyn Lewis, the federal member of Parliament, said she is not able to speak to the priorities of Haldimand County.

They both pass the torch of responsibility back to the municipality, as though it alone should light the way to some kind of posthumous justice for the Black freedom-seekers who settled in Haldimand.

While Haldimand seems far away, our mortality can seem even further. Felepchuk recognizes that it’s important not to lose sight of the matter of burial grounds as we look toward the future of the GTA. “We have to plan for how we encounter history, especially as cities expand. Places that were considered rural in the 19th century, where many of these historic Black communities existed, are quickly becoming urban.”

Nicole Hanson agrees. She’s a Black environmental planner with almost a decade in the profession under her belt. Hanson facilitates review processes around development following the laws set out by Ontario’s Planning Act, 1990, which looks at the planning, design and development of neighbourhoods and various communities.

“We plan [around] these policy documents, about transit, on housing, on economic development, on parks and open space. But there is little to no language on planning for cemeteries,” says Hanson. “These are huge historical and cultural sites.”

From her view, she has a few suggestions about how agencies or regulatory bodies can improve the processes around identifying and licensing burial grounds. First, she says, a formal cemetery steering committee or task force needs to be created, most likely by the clerk’s department, in collaboration with citizens in the community already doing the work of locating these sites, like filmmaker Bachiu.

“There also needs to be strong acknowledgement from historical societies and the heritage planning department at the city to make sure that that cemetery is in fact registered and in the care of the municipality.”

Ward suggests that points of reform for administering laws around death are needed in Ontario because, unlike in other provinces such as British Columbia, there aren’t robust statutory laws that address complicated situations like the WMB burial site, where the graves existed before the property became privately owned by someone unrelated to the family members who rest there. Instead, the outcome of a problem like this would most likely end up being determined by judges, backlogging the civil court.

“There are a few key things that I think Ontario is due to reconsider,” says Ward. The first is ensuring that treating the remains of deceased people with great dignity and respect in a timely manner is of high importance. He also suggests a separate and independent tribunal set up to oversee that delicate work. He also advocates that language used in laws around death needs to be more clear, straightforward and easier for non-lawyers like descendants such as Martin to both access and, most importantly, understand.

Martin isn’t the only person in Ontario who hopes to honour his ancestors in a way that best commemorates their lives. Burial sites will continue to be uncovered, especially considering that there are 20 more names of Black historical families who settled in Haldimand. The licensing of these cultural sites could potentially become in dispute. Without intervention, history will repeat itself.

When asked if Martin would like to be buried with his family in Haldimand, potentially in the WMB burial ground, he replies, “I’ve never even considered... I’ve no idea.” He chuckles and then adds, “Maybe just pitch me in a lake.”

But he does have an idea of what he’d like to happen to the site, should it become licensed with the BAO and the remains left untouched. He’s talked to some of the distant cousins, and they agree that they’d like to ensure the site is safe by removing any falling or fallen trees while preserving the wooded environment, honouring the way the plot would have looked when their ancestors lived, and were buried, there. Preserving the periwinkle is important. They don’t necessarily want the site manicured like the Canfield Cemetery, and they don’t want it to become a point of simple tourism without historical context.

“I’m in favour of a more personal touch,” says Martin. “It should be a place where people can commemorate not just their [ancestors], but other people who have made them who they are.”

WEP would like to thank Dr. Cheryl Thompson, who is the director of research and creative strategy at Mapping Ontario’s Black Archives (MOBA), for her guidance around archival research for this story.

This story is supported by the Joe Burke Fund for Social Justice Reporting, which was created in memory of Joe Burke, the late social justice advocate and lawyer.