How Canada committed genocide against Indigenous Peoples, explained by the lawyer central to the determination

<span class="caption">Handprints are seen on the side of a truck riding in a convoy of truckers and other vehicles in support of the Tk'emlups te Secwepemc people after the remains of 215 children were discovered buried near the former Kamloops Indian Residential School, in Kamloops, B.C.. </span> <span class="attribution"><span class="source"> THE CANADIAN PRESS/Darryl Dyck</span></span>

The National Inquiry into Missing and Murdered Indigenous Women and Girls concluded in its 2019 final report that the Canadian state has perpetrated genocide against Indigenous peoples. This genocide is the underlying cause of the contemporary murders and disappearances of Indigenous women and girls.

The booklet and final report of the National Inquiry
The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Author provided

This conclusion was “inescapable” for the commissioners and for thousands of Indigenous people across the country. But as the lead author of the inquiry’s legal analysis of genocide, I know personally how denial and disbelief dominated the reactions of the mainstream media in Canada and of many non-Indigenous people in Canada that amounted to: “A genocide in Canada? Surely not!”

Then came the stunning news — the remains of 215 children found on the grounds of a former residential school in Kamloops, B.C. It seems like the type of mass graves commonly found at sites where genocide took place.

Canadians are beginning to be able to contemplate what for many Indigenous people is a given: Canada committed genocide. But, as academic Joanna R. Quinn said in a recent article for The Conversation: “The residential school system was also one among many systems of violences and harms. Residential schools represent the tip of the iceberg.”

Read more: Why many Canadians don’t seem to care about the lasting effects of residential schools

It’s now especially important to recall some of the legal underpinnings of the use of the term genocide in the Canadian context. Many myths and misunderstandings dominate the public discourse, hindering informed discussion on this subject that is so important to the future of our nations.

Genocide is not just the Holocaust

A classic objection to the Canadian genocide is often: “It’s not the Holocaust!”

Some recognized genocides, such as the Holocaust and the genocide of the Tutsis in Rwanda, took place over specific periods of time and were characterized by mass killings. But colonial genocide is a slow-moving process. The policies of colonial destruction of Indigenous peoples took place insidiously and over decades. The acts of violence and intent to destroy are structural, systemic and cut across multiple administrations and political leaders.

Shoes are placed on the lawn outside the former Kamloops Indian Residential School.
Shoes are placed on the lawn outside the former Kamloops Indian Residential School to honour the 215 children whose remains have been discovered buried near the facility, in Kamloops, B.C. THE CANADIAN PRESS/Darryl Dyck

Under international law, genocide is both a crime that engages individual criminal responsibility and a wrongful act that engages state responsibility. Colonial genocide engages Canada’s responsibility as a state for many distinct acts and omissions that, taken together, violate the international prohibition against genocide. In law, this is called responsibility for a “composite act.”

The definition of genocide

Genocide is defined in international law as certain prohibited acts or omissions committed with intent to destroy, in whole or in part, a protected group of people. There is no doubt that the Indigenous peoples of Canada, despite their diversity, are a protected group. Here are some considerations:

1. Prohibited acts or omissions

Genocide encompasses a variety of lethal and non-lethal acts, including acts of “slow death.” There are five forms of prohibited behaviour — murder is only one of them.

Other behaviours that can constitute genocide include inflicting mental or physical harm, such as the sexual abuse and mistreatment of children in residential schools; imposing living conditions designed to result in physical destruction, such as imposed starvation to develop the Canadian West; lack of adequate food, water or medical care; imposing measures designed to prevent births, such as forced sterilization; and forcibly transferring children from the group, such as residential schools and the ‘60s Scoop. These are only examples, many others have been committed over the decades and are well documented.

Read more: Tip of the iceberg: The true state of drinking water advisories in First Nations

2. An intent to destroy

The central element of genocide is the specific intent to destroy the protected group. Unlike an individual, a state is an abstract entity, without a mind or spirit. Therefore, when assessing state responsibility, one assesses the existence of a manifest policy or course of conduct over time that demonstrates the state’s “intent” to destroy a particular group.

Canada has demonstrated a continuing policy, with varying motivations but with an underlying intent that’s remained the same — to destroy Indigenous peoples physically, biologically and as social units.

When victims resist, defy and survive destructive policies, those policies are no less genocidal. More than anything, this is a testament to the resilience and strength of Indigenous peoples. Genocide is not about the outcome, but about the intent to destroy.

An eagle feather is held up during a rally.
An eagle feather is held up during a rally for Missing and Murdered Indigenous Women and Girls on Parliament Hill in 2016. THE CANADIAN PRESS/Adrian Wyld

3. An obligation to cease and repair

Many Canadian policies have continued to this day and are having devastating effects on Indigenous communities. The genocide continues.

Prime Minister Justin Trudeau has publicly accepted the conclusion that this is genocide.

The NDP has unsuccessfully asked parliamentarians to do the same. Naming things for what they are is necessary. But more importantly, the commission of genocide requires reparations.

<span class="caption">PM Trudeau paying tribute to the 215 children whose bodies were found at the site of the former Kamloops Indian Residential School in British Columbia.</span>
PM Trudeau paying tribute to the 215 children whose bodies were found at the site of the former Kamloops Indian Residential School in British Columbia.

Ending the Canadian genocide of Indigenous peoples is a legal obligation. It requires an honest and active process of decolonization.

Beyond apologies, it will require the courage to undo and reverse the influences of colonialism one by one. This requires structural changes that reverse the power paradigms in our institutions. It will require the re-empowerment of Indigenous Peoples as peoples with the right to self-determination in order to redefine a Canada that is free from the genocide on which it was built and still thrives today.

This article is republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. It was written by: Fannie Lafontaine, Université Laval.

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Fannie Lafontaine receives funding from the Social Sciences and Humanities Research Council of Canada (SSHRC) for the Canadian Partnership for International Justice, of which she is the Director and for her Canada Research Chair on International Criminal Justice and Human Rights. She is a board member of Avocats sans frontières Canada. She participated as lead drafter of the National Inquiry on Missing and Murdered Indigenous Women and Girls's Supplementary Report "Legal Analysis on Genocide"