Unfulfilled promises and a shift in responsibility? Discovering Canadian Indigenous Mass Graves
Updated: Nov 1, 2021
About the author: Selen Kazan is a Ph.D. student at the Graduate School on Political Cohesion and a Research Assistant at the TU Dortmund Institute for philosophy and political science. Her work focuses on the impact of Transitional Justice in democracies based on the Canadian Truth and Reconciliation Commission. She is currently at the University of Toronto’s Law Faculty for her field research.
"Every Child Matters Orange Shirts on British Columbia Legislature Building Steps, Symbol of Canada National Day for Truth and Reconciliation" by Autumn Sky Photography, available here.
The discovery of unmarked mass graves of Indigenous children near former Indian residential schools in Canada gives rise to questions of unfulfilled promises and reconciliations. These residential schools were government-sponsored schools run by churches that aimed to "kill the Indian in the child," by forcibly assimilating the children, and converting them to Christianity. An estimated 150,000 children attended residential schools.
By using ground-penetrating radar technology, many Indigenous communities across Canada continue to look for unmarked graves near the almost 130 schools. Chief Rosanne Casimir of the Tk'emlups te Secwepemc First Nation complains that Indigenous communities are shouldering the responsibility to prove true Canadian history. The Canadian Truth and Reconciliation Commission (TRC) operated from 2008-2015, and was created to investigate residential schools and their missing children, and to support survivors by providing them with a platform to share their stories and address their intergenerational trauma. Due to incomplete historical records, the exact number of persons killed in the residential school system remains unknown, but estimates vary from 3,200 to more than 6,000. These new findings and calls by Indigenous communities for accountability necessitate a legal reassessment.
The TRC’s final report found that Canada perpetuated a cultural genocide. Although this finding was technically an admission of guilt by the TRC, the group did not explicitly determine whether a physical and biological genocide occurred, as this determination would have legally implicated the Canadian government. Rather, the final report’s introduction is adamant about distinguishing the boarding school system and other human rights abuses that took place inside the schools from a physical genocide, which it defines as "the mass killing of the members of a targeted group." Cultural genocide, on the other hand, is defined as "the destruction of those structures and practices that allow the group to continue as a group," and is carried out by seizing native land, and by prohibiting Indigenous languages and spiritual leadership. The main element of cultural genocide is the transgenerational aspect: the forceful separation of children from their families and sending them to boarding schools resulted in the disruption of transmitting cultural values to the next generation. The schools aimed to remove Indigenous children from the scope of their parents’ influence. Sir John A. Macdonald, Canada's first prime minister, publicly acknowledged this goal in 1883.
Cultural Genocide in International Law
While the residential school system is increasingly depicted as genocide by scholars, the specification of what kind of genocide occurred is still not settled. Cultural genocide is still a contested legal term and issue because of political constraints. Raphael Lemkin, who coined the term "genocide," believed that genocide did not only refer to the immediate destruction of a national group but rather a “coordinated plan of different actions aim[ed] at the destruction of essential foundations of the life of national groups.”
These new findings in Canada and the oppression of Uighurs in the Xinjiang province in China have sparked a renewed discussion in human rights circles on cultural genocide. However, a proposal to codify the concept of Cultural Genocide as Article III in the UN Genocide Convention (UNGC) in 1948 failed. Proponents of the proposal argued that cultural genocide essentially represented the ultimate goal of genocide, and physical genocide was just one means to achieve it. However, the majority contended that the physical destruction of a group could not be placed on the same level as, for example, the prohibition of a language. The primary purpose of the genocide convention was to codify genocide as an international crime to ensure future accountability, and, ultimately, cultural genocide was seen as too vague in nature.
Including it would have also meant criminalizing many of the framers’ own behavior. For example, the Canadian delegation was instructed, via telegram from the Secretary of State, to vote against the Genocide Convention as a whole if cultural genocide were to be integrated. Following the removal of the cultural genocide clause, Canada signed the UNGC in 1949. Nevertheless, the concept of cultural genocide per se was not dismissed because the actus reus in Article II (e), the "forcible transfer of children to another group," which was seen as both a cultural and physical genocide, was still included.
The Law on Genocide in Canada
Legislators in Canada were adamant about incorporating the UNGC into Canada's criminal code, as they asserted that genocide could not be allowed to occur there. The Canadian Cohen Committee, following the advocacy of the Canadian Jewish Congress, wanted to define genocide for Canadian law more narrowly than the UNGC, to only include killing and substantial equivalents. The Committee advised Canada to not adopt the other components including those prohibiting causing bodily or mental harm to members of a group and forcibly transferring children from one group to another group with the intent to destroy the group. The Canadian Criminal Code recognizes only parts of the UNGC. For example, legislators included the Genocide Convention in the section on hate propaganda rather than as a stand alone clause. They justified this change by claiming that most components of the international definition, such as the forcible transfer of children of one group to another, were inadvisable for Canada. Legislators also purposefully omitted Article II (e) of the convention and argued that it could implicate the Attorney General of British Columbia's transfer of Doukhobors children to boarding schools. Similarly, they left out Article II (d) with a bizarre argument that it could result in pill or contraceptive manufactures criminal liability in the future. This omission resulted in the Canadian government’s impunity regarding the forced sterilization of Indigenous Peoples in residential schools and hospitals, which was common practice in Alberta and British Columbia.
Only after legislators enacted the Crimes against Humanity and War Crimes Act (CAHWCA), which implements Canada's obligations under the Rome Statute of the International Criminal Court, did they incorporate the genocide convention. However, this still does not mean that the entire UNGC is entirely applicable for Canada. Whereas one may be prosecuted for crimes allegedly committed outside of Canada “either before or after the coming into force" of the CAHWCA and, indeed, the Rome Statute, no such wording exists regarding international criminal acts committed within Canada. Canada's selective incorporation of the UNGC into its own criminal code thus precludes claims that could fall under forcible child transfer Article II (e).
A slow Canadian genocide
The TRC's final report also acknowledges that the Canadian legal landscape has made it challenging and traumatizing for survivors to receive an adequate response to their claims. Many survivors referred to the residential schools system as a genocide. At the same time, the TRC continues only to use the term "cultural genocide" to avoid a legal debate that could include the applicability of the UNGC. However, many survivors also stated that the debate about whether a cultural or physical genocide occurred distracted from the real issue at hand, and that child transfer is indeed recognized as an offense under the UNGC. Further, the National Inquiry into Missing and Murdered Indigenous Women and Girls' (NIMMIW) supplementary report on genocide also deems this debate as misleading for the Canadian context. It claims that the Indigenous perspective has been left out in outlining international norms, which were drafted by sovereign states that benefited from their exclusion. It also added that no matter which offense is chosen - cultural or physical genocide - both terms encompass Canada's past and ongoing actions and omissions toward indigenous peoples. Not only was their culture lost for several generations, but many children died in the residential school’s care.
Similarly, the focus on genocide in the context of war, for example, in the Holocaust, the Rwandan Genocide, or the massacre at Srebrenica, leaves out the possibility of a "slow" destruction of a group. The NIMMIW, therefore, prefers the term colonial genocide, which encompasses this slow-moving process. It argues that the intent to destroy Indigenous peoples in Canada was implemented gradually and erratically, utilizing several tactics against various Indigenous communities.
Further, the NIMMIW determined that the Canadian government engaged in the use of lethal and non-lethal force, which all fall under the purview of the crime of genocide. The difference in this framing to the better known notion of genocide is that the policies fluctuated in time and space, and, to some extent, are still ongoing, but are not a single quantifiable event. It clarified that the Canadian genocide is a "composite act,” or, an act that "breach[es] an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful" pursuant to Article 15 of the ILC Articles on State Responsibility (ARS). Multiple problems arise regarding the intertemporality because, as stipulated in Article 13 of the ARS, the state must be bound by the obligation in question when the act occurred. Classifying the acts committed by Canada as a composite act also does not satisfy this element, because Article 15 also adheres to the intertemporal principle. The NIMMIW does not give a definite start date of genocide and claims that it is still ongoing. Their first examples of genocidal acts stem from the 1700s, and include the residential school system. During that time, the crime of genocide was not recognized internationally. The commentary on the ARS states that if the relevant obligation did not exist when the act occurred, subsequent omissions occurring after the obligation came into existence will be internationally wrongful. Additionally, the residential school system continued well into the 1990s, after the UNGC was already in force.
Though the TRC concluded that the residential schools were part of a cultural genocide, experts have yet to reach a conclusion regarding whether a physical genocide occurred. Canadian law is not designed to allow Indigenous Peoples to seek redress at home and address the residential school system's injustices thoroughly in a legal sphere. The Calls to Action of the TRC’s final report indeed called for the investigation of burial sites and missing children and pledged to bring the children home. The distinction of whether a physical or cultural genocide occurred will not change the gruesome history of the Residential Schools, but it could better tell the genuine truth, and offer accountability.