Canada Avoids Indigenous Reconciliation and the UN Declaration on the Rights of Indigenous Peoples

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If you believe that Canada is a country filled with self-effacing and polite people, you may miss the genocidal violence within its borders. First Nations, Inuit, and Métis have always known that the Government of Canada along with the Canadian provincial governments have deliberately implemented and enabled the continuous annihilation of Indigenous peoples. The National Inquiry into Missing and Murdered Indigenous Women and Girls found in its report, released earlier this month, that Indigenous women were 12 times more likely to be killed or to disappear than other women in Canada. The report concluded that this violence is the result of historical and ongoing race-based genocide against Indigenous peoples.

The National Inquiry was commissioned by the Government of Canada in 2015 to launch a public inquiry into the disproportionate levels of violence against Indigenous women and girls. It was the result of long-standing pressure from grassroots family members and survivors, community organizations and national Indigenous organizations, international human rights organizations, and the Truth and Reconciliation Commission of Canada. It took a tragedy in 2014 to lead to a public inquiry: the body of Tina Fontaine, a 15-year-old girl from the Sagkeeng First Nation, was found in the Red River in Winnipeg, Manitoba wrapped in a duvet weighed down with 25 pounds of rocks; when the main murder suspect was acquitted, people across the country were outraged which generated wide-spread calls for an investigation into why Indigenous girls and women were dying at a high rate.

The report’s conclusion was not new news to anyone who understood Canadian politics. What is noteworthy is that Prime Minister Justin Trudeau publicly accepted that Canada has committed and continues to commit genocide. Many citizens and prominent officials in Canada, however, had a visceral reaction against the characterization of the violence as genocidal. It did not match the story that Canadian citizens and government officials tell themselves about Canada as a promoter of international human rights abroad or of what they thought modern genocide looks like.

Never has international law forced Canada to face itself so honestly. Some are arguing that because genocide did not exist as an international crime before the 1948 Geneva Conventions, the colonial violence in Canada’s past may not fall under the gambit of modern international criminal law (here and here) even if they reverberate today. These arguments, however, treat colonialism in Canada as a punctuated historical phenomenon.

What the report makes clear is that Canada has always been and remains a colonial country. The fact that Indigenous peoples in Canada have long claimed that they are suffering under genocidal practices, that an official report has characterized the violence of today as genocide, and that the head of state has accepted this framing changes the political nature of the debate. That means that this report can be read as a consensus amongst all the parties that have the most to lose or gain. Since they all agree that the issueisgenocide, the legal question is now the matter of intent. That means that in the least, this report has advanced the political debate to the questions of how to investigate the question of intent.

I think the issue of genocide raises two interrelated issues that Canada must now face:

First, the way the report frames the indictment of genocide has in effect highlighted to all Canadians and to the world that Canada is a settler colony and is in ongoing political negotiations with Indigenous peoples. By evoking international law, the report broadcasting to a global audience. Prof. Beverley Jacobs, a Mohawk lawyer and former president of the Native Women’s Association of Canada, describes the colonial relationship in her response to the report: “Our people have been in a violent relationship with Canada for too long. And when you’re in an abusive relationship and waiting for the abuser to change, but they’re not willing to change, you have to figure out how to get out of the relationship.”

With this in mind, the international jurist can no longer leave Canadian law alone as a domestic matter. Instead, Canadian law is something that warrants international inquiry as a set of laws in place to denigrate the power of and negotiate power with sovereign Indigenous peoples. This international attention is warranted not because there was a finding of genocide, but because it is now clearer to a global audience that the issue of sovereignty in Canada has never been resolved. This is true for all settler colonies such as the US, Australia, New Zealand, and Israel.

Second, I do not think that the issue of continuity is a concern. This is because at no point in Canada’s history was it not a settler colony that enacted laws and implemented polices that contributed to the eradication of Indigenous peoples. The implications, then, of framing genocide as a matter of historical and ongoing colonial violence, are that queries should focus on investigating normal state institutions and practices and not only on individual criminal culpability. The supplementary report that provided a legal analysis of genocide, concluded that because this type of finding of genocide stems from long-standing and ongoing state structures, then international obligations for reparations are triggered (an excellent interview with its lead author Prof. Fannie LaFontaine can be found here).

The deep meaning of the report remains unknown even if its political context is clear. This is because it is not easy to read the personal stories of violence against women – especially if you are trying to read with and not through those stories. It all becomes even more acute when you know that many states around the world are complicit in institutionalizing gender inequality and enabling what radical feminists in Mexico call feminicido. Intersect those gender-based murders with government institutions using race-based theories to legally define the so-called Indian, and you quickly realize you are reading about how nations are being erased through violence against women, girls, and 2SLGBTQQIA people. Such a story requires a slow read (even if you leave aside the details of the political turbulence around the National Inquiry’s formation and operation).

As the meaning of the report unfolds, one big concern amongst many Indigenous peoples is that this will be yet another official report which leads to a lot of political talk and no legal change. It is easy for a government to respond to a such a report by advancing political discourse. It is also easy for politicians to appear somber and humble when faced with grave indictments. Moments of truth, however, more often arise when there is an opportunity to create new laws that reconfigure relationships and generate new political language.

The scandal is not that Canada is committing genocide. That fact is a deep structural tragedy. The scandal is that Canadian legislatures just had an opportunity to make an important step towards reconciliation and they chose not to proceed.

Prof. Brenda Gunn (Métis) noted the irony that June 21 not only marked National Indigenous Peoples Day but also the day that bill C-262 died before the Senate. The bill was introduced by Romeo Saganash (Cree), a Member of Parliament. It would enact the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) within Canada and harmonize all Canadian law with the international declaration. But it did not make it passed the Senate before Parliament rose for the summer. According to Gunn, “As the House of Commons will not sit again before the Canadian election, the path to implementing the UN Declaration in Canada is uncertain.” The Government of Canada keeps gesturing towards UNDRIP but actively avoids allowing UNDRIP to create any legal changes in Canada.When introducing the bill, Saganash explained that this bill would provide a “legislative framework for a national reconciliation that is long overdue in this country.” 

The role, then, of the international jurist is not to continue the debate around the meaning of genocide. We should commit to spending more time actively listening to the ongoing stories of gender-based violence and genocide near us and in our own communities. We should also commit to continuing the pressure on the Government of Canada (and all settler colonies) to face its minimum human rights obligations in relation to Indigenous peoples. Everyone in Canada understands that the stakes are high over the meaning and function of UNDRIP in Canada, since this international instrument could make it easier for sovereign peoples to renegotiate their political relationship with Canada. If the Government of Canada continues to avoid implementing UNDRIP in a meaningful way, it is missing the opportunity to reconstitute a novel version of Canada. It could be a place that is actively reconciling with its past by stopping colonial violence today.

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Bashar Malkawi says

July 6, 2019

The plight of indigenous people is still ongoing. The debate should move beyond historical narratives -which is important- to how cure the issue if possible. This framework would need to be incorporated at the institutional level and from a legal perspective. Substantial legal change should occur otherwise we would still be in square one.
Bashar H. Malkawi

Micharl Fakhri says

July 7, 2019

If moving beyond historical narratives means addressing the issue of genocide as a pressing political matter today, then I totally agree. But if moving beyond historical narratives means treating history as strictly in the past, I think that misses the political struggle that lies ahead. Indigenous peoples have the most at risk so they get to decide how history will inform today's politics. The example that's closer to home for me is how the Palestinians have to fight for their history every single day, see e.g.