Cultural Genocide in Canada? It Did Happen Here.




Indian Residential Schools, Cultural Genocide, TRC, Criminal Code, Tort Law, Residential Schools Litigation


This article explores the significance of the TRC’s assertion that the establishment and operation of residential schools were a central element of Canada’s Aboriginal policy that can be described as cultural genocide, against the backdrop of Canada’s historical position on cultural genocide and in view of residential schools litigation. It analyzes the deliberations over the United Nations Convention on the Prevention and Punishment of Genocide (The Genocide Convention) in various United Nations (UN) organs, Canada’s historical position, and the selective adoption of the Genocide Convention in Canadian law. My argument is threefold; first, I argue that the TRC assertion is indeed timely. Cultural genocide is not an inferior second-rate type of genocide, although it is not included in the Genocide Convention. Conceptually, cultural genocide is a full-blown genocide, even if it is not legally actionable. Second, Canada shielded itself legally above and beyond claims of genocide as it transplanted the Genocide Convention into Canadian law. Finally, while the cultural genocide phraseology may facilitate a wider scope of tort claims, the absence of appropriate legislation changes means Aboriginal people are likely to continue to view Canadian law as an oppressive settler-state mechanism.

The first section of this article explores the notion of genocide as the destruction of cultures and the contextualization of the colonial experience within this notion. The second outlines briefly the drafters’ justification for the exclusion of cultural genocide in the Genocide Convention, the Canadian position with regard to cultural genocide, and the selective manner in which the Genocide Convention was incorporated in Canada’s criminal code. Section three analyzes residential schools litigation within Canada’s narrow, individual-based tort law. Finally, the significance and implications of the TRC conclusion will be discussed.  

Author Biography

Ruth Amir, Yezreel Valley College

Ruth Amir is Senior Lecturer at the Departments of Political Science and Multi-Disciplinary Social Science at Yezreel Valley College. Her research focuses on forced migration, and forcible transfers of children within genocide research.   

Some of her recent publications are: Who is Afraid of Historical Redress: The Israeli Victim-Perpetrator Dichotomy (Academic Studies Press 2012), Her forthcoming (April 2017) coedited book Anne Frank, the Diary of a Young Girl will be published by Salem Press. Her article "Transitional Justice Accountability and Memorialisation: The Yemeni Children Affair and the Indian Residential Schools,” was published in Israel Law Review  in 2014); "Killing them Softly: The Forcible Transfer of Indigenous Children," (Genocide Studies and Prevention 2015);