As Canadians, we think of ourselves as good-hearted peacemakers and international defenders of human rights and justice. So, when on April 24, 2007, The Globe and Mail ran a story about genocide in Canada we might be expected to do a double-take.
Genocide! How could there be any merit to this claim? This accusation is controversial, but not new. Indigenous people in Canada have been saying this for decades. Many have first hand memories of horrifying death rates at Indian Residential Schools (IRS) during the first half of the 20th century. Not only that, but they have first hand experience of the federal government's implementation of its policy to assimilate indigenous peoples into Canadian society and thus extinguish their languages and cultures.
The Genocide Convention, ratified by Canada in 1952, defines genocide as the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The definition includes not only killing or causing serious bodily or mental harm to members of the group but also deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group. A system set up to insist on removing indigenous children from their communities and deny them their cultures and languages, does seem to fit the definition. The federal government continued an assimilationist agenda well after 1952.
Canada finally put genocide into the Criminal Code in 2000. Section 318 includes parts of the Genocide Convention's definition: physical killing of group members or inflicting conditions of life calculated to bring about its physical destructionâ€" but does not include the other parts of the Genocide Convention's definition. Canada has not yet fulfilled its obligation as a Contracting Party to enact legislation to give effect to the full international definition of genocide.
Whether or not the intentions and activities of the federal government and churches running the IRS system fit the international legal definition of "genocide," it is common ground that the frequently brutal IRS institutions tore families and communities apart and were assimilationist in intent.
Of more than 80,000 former students of the IRS system still alive, 13,471 sued the Canadian government and several churches, claiming physical and sexual abuse or unlawful confinement. About 90% also claimed for cultural losses.
True to the Canadian peacemaker image, the federal government undertook an [Alternative Dispute Resolution] "ADR" Program. It commenced work in 2003. By early 2004 it was being thoroughly castigated. This program required applicants to complete exceedingly complex forms, and confine their claims to those forms of abuse designated by the program. The program provided neither compensation nor apology for abuses indigenous people found most egregious â€" deprivation of culture and language.
Paulette Regan, in her chapter in a new book on Indigenous Legal Traditions, reports that one 88-year old survivor told an ADR hearing she had been locked in a dark room for two weeks and beaten black and blue because she had tried to run away to attend her mother's funeral. Later this elder said of the ADR process: "I was told that my treatment and punishment was â€¦â€˜acceptable standards of the day'... I was told that my experience did not fit into the rigid categories for being compensated under the ADR." The government appealed the adjudicator's $1,500 award.
Trained ADR practitioners will cringe. No wonder only 3,252 cases settled. The ADR program was designed by non-indigenous persons without consultation with indigenous people. After a damning report was tabled in the House of Commons in April 2005, the government and the Assembly of First Nations agreed that former Supreme Court of Canada Justice Frank Iacobucci would negotiate with the parties toward a settlement package.
The result was a settlement on May 10, 2006, for a total of $1.9 billion including "a Common Experience Payment for all eligible former students" of IRS institutions, an Independent Assessment Process for claims of sexual or serious physical abuse, measures to support healing and commemorative activities, and the establishment of a Truth and Reconciliation Commission (TRC). Written assurances of a later apology were given but not included in the settlement agreement. On March 22, 2007 the agreement received required court approvals.
The April 27 Globe and Mail story brought new calls for an apology, and on May 1, the House of Commons voted to apologize to IRS survivors. Indigenous peoples want an apology from the Prime Minister in the House of Commons.
Will this ever happen? The government is not quite sure. Indian Affairs Minister Jim Prentice was reported as saying "it will take years before the government can make a formal apology." Mr. Prentice wants to wait for the results of the TRC. That may take six years.
The government appears to be saying it may apologize after it is sure it won't be liable. The government of Canada appears to be in litigation mode, not reconciliation mode. No wonder indigenous people are not impressed with what Regan calls Canada's "peacemaker myth."
Will the TRC generate a true spirit of reconciliation? Its mandate provides for voluntary statements by IRS students, their families and communities and "other interested participants." While it has no mandate to seek out statements by representatives of government or churches, it does have a mandate to facilitate "truth-sharing" among those groups. It remains to be seen how many non-indigenous people will choose to participate.
True reconciliation will require Canadians and their governments to demonstrate humble respect for indigenous peoples and cultures. True reconciliation will result in sincere apologies in which Canadians take responsibility for all the historic harms in which we, through our governments and institutions are implicated, and be accountable to indigenous peoples. Let us hope Canadians will begin to live up to the peacemaker ideal.
* Catherine Morris, BA, JD, LLM is an Adjunct Professor in the Faculty of Law at the University of Victoria where she has taught international human rights annually since 2004. She monitors human rights in Southeast Asia. She is the managing director of Peacemakers Trust.