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From the archives

Paper Rout

Postmedia in the gutter

Past Trauma

Richard Wagamese and an Indigenous literary resurgence

Family Pride

Profiles in gay life

Yes, Genocide

Overruling tepid language

Harry S. LaForme

Editor’s Note: This is one of two related pieces in the October 2019 issue. Profs. Donald B. Smith and J.R. Miller offer a counterargument with “No Genocide.”

Is Canada guilty of “cultural genocide”? Some argue that this is an inaccurate, vague, or overly emotional term within the context of Canadian colonial history. “Cultural genocide,” they contend, ignores internationally accepted legal definitions. Others argue that the phrase accurately describes the state-supported deaths of tens of thousands of people and the attempted annihilation of Indigenous peoples as a race. This is a debate that matters.

By now Canadians know, or at least should know, that some 150,000 Indigenous children were forced to attend government-sponsored religious schools, first established around 1830 to convert and absorb them into Euro-Canadian “civilization.” Canadians also have learned that these residential schools were sites of rampant abuse, by sexual predators and others. The number of school-related deaths remains unknown, though estimates place it as high as 6,000 — about 4 percent. Underscoring the tragedy: most parents and family members were never informed of the deaths or the location of their loved ones’ remains.

Abuse went beyond individual perpetrators. At some schools in the 1940s and 1950s, students were subjected to nutritional experiments without any form of consent — but with the approval of the federal government. In fact, government officials both starved and sterilized children while conducting their experiments. Church leaders and Ottawa alike largely ignored allegations of abuse. Police were rarely contacted. Even when a complaint was deemed to have merit, the offender was either moved or allowed to keep teaching. Expert recommendations to improve health conditions and medical treatments were not implemented, largely due to cost concerns and church ­opposition.

In the 1980s, even before the last residential school closed in 1996, survivors initiated action against the government and the churches for damages resulting from their experiences. In 2005, a class-action lawsuit was filed, leading to the Indian Residential Schools Settlement Agreement the following year. The agreement, between the federal government and some 86,000 Indigenous people, included the establishment of the Truth and Reconciliation Commission.

The TRC completed its work in December 2015, concluding that the residential school system amounted to cultural genocide. The school system was a bleak microcosm of Canada’s long history of colonization and its relationship with the first peoples of this land and illustrated a defining feature of genocide: “the destruction of those structures and practices that allow the group to continue as a group.” This conclusion sparked the latest round of debate.

The concept of “cultural genocide” dates back to 1944, when the word “genocide” was coined by Raphael Lemkin, in Axis Rule in Occupied Europe. Lemkin did not include the phrase “cultural genocide” in that book, but he did in other writings and in his memoirs. His efforts to galvanize the international community after the Second World War greatly assisted in realizing the Genocide Convention, or the Convention on the Prevention and Punishment of the Crime of Genocide, in 1948.

Discussions leading up to the convention were forceful and politically charged. Many centred on early drafts of the treaty, which specifically prohibited states from engaging in cultural genocide, defined by the United Nations Secretariat as “the deliberate suppression or elimination of a culture.” Canada opposed the prohibition, along with Australia, New Zealand, and the United States — four countries with similar colonial histories. In fact, Canada was so opposed to the phrase that it was prepared to vote against the entire convention. Importantly, while Canada opposed inserting references to cultural genocide in the treaty, Canadian delegates did not dispute the ­concept itself.

Ultimately, the Genocide Convention makes no mention of cultural genocide. Instead, it links a state’s destructive actions with its “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The treaty prohibits five types of conduct — only one of which requires killing. Governments shall not cause serious bodily or mental harm, impose conditions of life calculated to cause physical destruction, or enforce measures intended to prevent births. The last type of prohibited conduct is “forcibly transferring children of the group to another group.”

Countries like Canada were nervous about their own past behaviour, and so they worked to define genocide narrowly. But splitting diplomatic hairs does little to undo the realities of colonization. Though the Genocide Convention’s definition does not include “cultural genocide,” such conduct was nevertheless understood as real by virtually all ratifying parties. Nations debated its inclusion in the treaty — not its existence in the historical record.

Even without the contentious phrase, the final treaty prohibits “forcibly transferring children of the group to another.” Arguably, then, the convention subsumes “cultural genocide,” at least as we think about it in twenty-first-century Canada in reference to residential schools.

Those who insist “cultural genocide” is a misapplied or inaccurate term also forget an essential legal truth: laws change in definition, scope, and meaning as societies evolve. Conduct that was once accepted becomes unacceptable. This is true in both domestic and international law. Consider the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly in December 2007. With article 7, the declaration builds upon the Genocide Convention: “Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.” And article 8 reads, in part, “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” Note how the words I’ve emphasized echo language from 1948.

Perhaps not surprisingly, Australia, Canada, New Zealand, and the United States initially refused to sign the declaration — as they held back with the Genocide Convention in 1948. Canada finally removed its objector status in 2016, implementing one of the recommendations of the Truth and Reconciliation Commission in its final report.

When it comes to cultural genocide, the truth of Canada’s conduct could not be clearer. The horrid outcomes of Indian residential schools, by themselves, are sufficient to reasonably conclude that cultural genocide occurred. But one can also look at the intentions behind these schools. Duncan Campbell Scott, deputy superintendent general of Indian affairs in 1920, summed up the official sentiment when Canada put a century-old de facto system into law: “Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question.” Finally, attendance at residential schools would be legally mandated. “I want to get rid of the Indian problem,” Scott said at the time. When such phrases as “kill the Indian in the child to save the man” and “final solution of our Indian Problem” have a government imprimatur, there can be little doubt about the state’s intention.

It’s illogical to conclude that Canada had good intentions when establishing Indian residential schools — good intentions that had unfortunate consequences, as some argue. Forcibly removing children from their parents to attend schools hundreds of miles away; making it unlawful for parents and families to visit those children; separating siblings; shaving off their beautiful long hair; ­forbidding students to speak their own language: these practices can never be described as merely good intentions gone bad.

Indigenous people in this country have known this for generations. Thankfully, in light of the Truth and Reconciliation Commission’s work, government officials are speaking the words that matter. In 2013, for instance, former prime minister Paul Martin said it was necessary to “call a spade a spade,” and publicly characterized Indian residential schools as an example of “cultural genocide.” Two years later, Beverley McLachlin, then chief justice, said, “The most glaring blemish on the Canadian historic record relates to our treatment of First Nations that lived here at the time of colonization.” She explained that after “an initial period of cooperative interreliance grounded in norms of equality and mutual dependence,” Canada had developed an “ethos of exclusion and cultural annihilation.” She described a foundational truth of Canadian colonization: “The objective was — and I quote from Sir John A. Macdonald, our revered forefather —  ‘take the Indian out of the child,’ and thus solve what was referred to as the Indian problem. ‘Indianness’ was not to be tolerated; rather it must be eliminated. In the buzzword of the day, assimilation; in the language of the twenty-first century, ­cultural genocide.”

Many of the highest officials of Canada’s government and judiciary now accept Indian residential schools for what they were: politically and legally institutionalized acts of “cultural annihilation” and “cultural genocide.” Those who continue to dismiss such terms are left with nothing but circular reasoning: Macdonald never used the words “cultural genocide.” Therefore, cultural genocide could not have been his intention.

In truth and in fact, the genie is out of the bottle. This debate matters, but it’s over. Those colonial descendants — and any others — who continue to argue that Canada’s relationship with Indigenous peoples has not been one of “cultural genocide” either favour tepid language or are willfully ­ignoring the truth.

Harry S. LaForme was the first Indigenous judge on a Canadian appellate court, having served on the Ontario Superior Court of Justice and the Ontario Court of Appeal.