Cultural Genocide in Canada? It Did Happen Here.
Keywords: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.
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