David B. MacDonald is a professor of political science at the University of Guelph, and the author of several works comparing the genocidal experiences of indigenous peoples in Western settler states and their continuing legacies.
Canada officially recognizes five genocides, five violations of the United Nations Genocide Convention of 1948, but the Indian residential schools system is not one of them.
Many survivors conclude that genocide was committed by both federal institutions and churches and have said so publicly. This view seemed to be echoed by the chair of the Truth and Reconciliation Commission. In a Twitter exchange in early 2012, Justice Murray Sinclair wrote: "IRS policy was an act of genocide under the UN Convention. Canada. however. cannot be convicted of the crime." Fast forward to 2014: "The evidence … certainly speaks to the fact that this fell within the definition of genocide in the UN Convention."
Yet the recent summary report of the commission called the residential school system "cultural genocide." Why did it not follow the Australian Human Rights Commission which, in 1997, delivered a bombshell when it concluded that the forcible removal of aboriginal children was genocide? The commission cited the UNGC [United Nations Genocide Convention] to make sense of the crimes committed by state governments against what became known as the Stolen Generations. Article 2, section E of the UNGC, prohibits "forcible transfer of children from one group to another group."
There are at least five reasons for this, which speaks to the reasoned judgment of the commission of Canada's TRC and its need for balance and a high degree of prudence and pragmatism.
First, The TRC couldn't have declared the First Nations experience to be genocide even if it wanted to. It was not established as a legal tribunal with the power to prosecute, grant amnesties, or subpoena witnesses. Under the 2006 Settlement Agreement, the TRC could not "hold formal hearings, nor act as a public inquiry, nor conduct a formal legal process." It was prevented from making reference to "the possible civil or criminal liability of any person or organization," unless legal proceedings had already addressed these issues. Simply put: Declaring genocide under international law would have exceeded the TRC's mandate.
Second, finding the state guilty of genocide in the Indian residential school system would be extremely difficult. Court cases alleging genocide have been struck down, first because the crimes in question took place before the Convention was signed. Second, forcibly transferring children is not considered genocide in the Canadian Criminal Code, which recognizes only two of five elements of the UNGC: "killing members of the group", and "causing serious bodily or mental harm to members of the group." Given the high rates of physical and sexual abuse, the commission may have considered this as well.
Third, a finding of genocide might not help the targeted population achieve healing, compensation, resolution of broken treaties, or a better life. In Australia, declaring genocide changed little for the better. A denialist backlash ensued, and aboriginal and Torres Strait Islander peoples have not seen their standards of living improve, nor recognition of their traditional laws and rights to self-determination. Even when an international court does recognize genocide, as in Rwanda and the former Yugoslavia, this does not translate into compensation by perpetrators to victims. Tutsis received nothing from their Hutu oppressors, and when Bosnia sued Serbia for genocide at the International Court of Justice, they failed. Similarly, the Armenians received neither recognition nor compensation from Turkey, despite official recognition of the Armenian genocide by Canada and the European Union.
Fourth has been the need to balance truth and reconciliation. Arguably, the commission achieved this in two ways. First, in promoting the academic term "cultural genocide," they have virtually eliminated the possibility of a large-scale denialist movement. Invoking genocide would have opened the commission to attack from right-wing activists, armchair lawyers, and others. Instead, the term seems to have been adopted by survivors, educators, community leaders, former prime ministers, and Supreme Court justices. Second, cultural genocide does not distract too much attention from the 94 recommendations, which many people will find far more important. The focus is on the future and on the implementation of the UN Declaration on the Rights of Indigenous Peoples.
Fifth, the TRC has not said this wasn't genocide. Nothing in the reports or the call to action says this. Indeed, the commission has created a ground floor for proceeding further in discussing and describing how the native Canadian experience is consistent with the definition of the UN Genocide Convention. There is considerable scope for survivors, community leaders, and educators to articulate how the UNGC reflects Canadian history and the schools. This might include lobbying to have the Indian residential schools system recognized as genocidal in provincial legislatures or the federal parliament.
Neither the summary report, nor the upcoming final report represent the final word; memory and history will continue to flow, our understanding of the system at the time will grow and change. More children will be discovered to have been part of the death toll, more examples of specific intent to destroy will be found, more instances of abuse will be detailed, more nutrition and medical experiments will be uncovered, more memories will be preserved. This is the beginning of a momentous process of fully discovering the history of Canada and its foundations.
To ensure that these words do not collect dust, what can we do as individuals and communities to honour the survivors and their families who have shared their stories and who struggle with the legacies of genocide that have been perpetrated through our federal institutions and our churches? There are no easy answers, but getting informed, getting angry, and then seeking to honour the treaties our country has broken, are good places to start.