Canada and the Genocide Convention: A tale of antithetical conformism

Last month, on 10 June, following the wake of the discovery of 215 indigenous remains at the former Kamloops residential school, the NDP moved in the House of Commons that the government acknowledge the school experience as genocide.[1]  Needing unanimous consent, the motion failed, owing to perhaps a handful of Conservative dissenters.  Contrast today’s parliamentary hysteria – and concomitant dismay - with a House of Commons of a different era, over 70 years ago, when Canada signed onto the Genocide Convention, also known as the Convention on the Prevention and Punishment of the Crime of Genocide (UNGC).  This article will discuss, in turn, the UN definitions of “genocide” and “cultural genocide” in the Canadian context as well as the antithetical poles of political opinion since the Second World War.[2]

The Genocide Convention was ratified by the UN General Assembly on 9 December 1948.  Canada signed almost a year later on 28 November 1949: Louis St. Laurent was just one month into his role as Canada’s Prime Minister, but much of the legwork regarding the draft legislation had been handled by Mackenzie King, who was not only a war-time Prime Minister, but he acted as Secretary of State for External Affairs as well.  Lester Pearson followed in External Affairs under the St. Laurent government, and he guided the ratification in Canada on 3 September 1952.  To begin, however, we must first look to the approved text.  Here is Article Two:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical or religious group, as such:

(a) Killing members of the group
(b) Causing serious bodily or mental harm to members of the group
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[3]

On the face of it, the Indian Residential schools could be implicated for genocide because of their “mental harm” and because they brought about the forced “transferring of children from one group to another”.  But the key words here are “intent to destroy” and “calculated”.  Put another way: the onus is on demonstrating criminal intent above all, while keeping in mind that these schools spanned some 120 years – something of a tall order. [4]

One glaring question is: why did the government of the day accept clause (e) when they might be implicating themselves with regard to residential schools.  At one level, it could be argued that the Indian Residential Schools did not necessarily amount to the permanent removal of children from their environment[5]  Indeed, many ran for ten months, and for the remaining two months in the summer children returned.  Others weren’t so lucky and stayed in schools year round until nearing adulthood, if they made it at all.  It is interesting to observe that at the time of ratification Canada had asserted: “mass transfers of children to another group are unknown … in Canada.”[6]  So at another level Anglo-Saxon and French Canada appears to have in mind the preservation of their own “cultural heritage” while Indigenous people served as an afterthought.[7] But we also need to remember as well that decolonization had only just begun, with India’s independence in 1947.[8]  China was still in the end-throes of Civil War, with Mao having been sponsored by Stalin, so an additional part of the context is the Cold War. Another decisive factor was that the UN was clearly moved by the singular experience of the Holocaust (hence the Genocide Convention), and continuing events in Europe.  The Greek Civil War (1946-1949) was marked by the seizure of some 30,000 children by the communists for the purposes of propagandizing.  Thus it was the Greek government which maneuvered ultimately to retain clause (e).[9]  

Clause (e) pertains to the meaning of the word “genocide”, but in the original draft of May 1947 it belonged to a section on “cultural genocide”.  Raphaёl Lemkin, a Polish Jurist whose family suffered catastrophic losses in the Holocaust, came up with the term “genocide”; he and two other academics on the committee – de Vabres and Pella – articulated the five methods behind “cultural genocide”, as found in draft Article Three:[10]

(a) forcible transfer of children to another group; or
(b) forced and systematic exile of individuals representing the culture of a group; or
(c) prohibition of the use of the national language even in private intercourse; or
(d) systematic destruction of books printed in the national language or of religious works or prohibitions of new publications; or
(e) systematic destruction of historical or religious documents or their diversion to alien uses, destruction or dispersion of documents and objects of historic, artistic, or religious value and of objects used in religious worship.[11]

When the French delegate suggested that Article Three be removed, the Canadian delegate chimed in that “the government and people of Canada were horrified at the idea of cultural genocide and hoped that effective action would be taken to suppress it”, adding that “they would strongly oppose any attempt to undermine the influence of those two cultures in Canada [Anglo-Saxon and French].”[12]  Furthermore, Mackenzie King, while serving as Secretary of State, sent a telegram to the Canadian delegation on 27 July 1948 directing it to “support or initiate any move for the deletion of Article three on “Cultural” Genocide.  If this move [is] not successful, you should vote against Article three and if necessary, against the Convention.”[13] He added that “The Convention as a whole less article three, is acceptable ….”[14] Before we raise our hackles, however, it should be pointed out that Canada belonged to the majority, as most delegates felt that article three did not belong.[15]  The USA and Australia, as similar “settler” nations, were on board, of course; but, it was the Soviet Union – aiming to put its revolutionary fingers in a number of “Third World” countries - that had apparently angled for its inclusion, along with the rest of the Eastern Block.[16]

After deleting draft Article Three but retaining the clause about ‘forcing children from one group to another group’ as genocide, the corollary concept of cultural genocide seems to go into a kind of hiatus in the Canadian establishment, and perhaps for a while around the world.  For one thing, it lacked legal status.  In 1969 researchers, Peter Sindell at McGill University and Ronald Wintrob at Alaska University College, used the term “cultural replacement”,[17] considered as “the attempt, in under-developed areas, to replace the traditional culture with a modern one in a short period ….”[18]  Using the language of the day, the authors added that “Many educators admit openly that they want to wean their Indian and Eskimo students from their cultures.”[19]  These two academics thought to reform the Indian Residential Schools – not abolish them - such that the English language not be exclusive; indeed, they suggested a form of bilingualism.

Since the beginnings of the Genocide Convention, it seems that the term cultural genocide was in abeyance in Canada (outside of our Indigenous communities, at least) until the findings of the Truth and Reconciliation Commission (TRC) which concluded so on 2 June 2015.  Former Prime Minister Paul Martin used it during Commission hearings; the chair of the TRC Justice Murray Sinclair originally employed it on 29 May, then again at the official announcement three days later; but first, as I have said before, Beverly McLaughlin, Chief Justice of the Supreme Court of Canada, used it to great effect in a public speech on 28 May 2015. [20]  She asserted that the assimilation which began in the last quarter of the nineteenth century was a “buzzword” and that the Government of Canada, along with the churches, had “attempted” cultural genocide.  My quibbles with Beverly McLaughlin’s case are now fewer than when I first began my researches into this topic. That many systematically dreadful things happened – and continue to happen – is indisputable. But could it be that we are now replacing one buzzword with another buzzword?  Is not cultural genocide but another abstraction albeit modernized?[21]  Is it possible that that cultural genocide was an unintended outcome?[22] Can we condemn the past with the gravitas-bearing terms of today such that a great number of our forbearers “shame” us to no end?  Or are we relieving past figures (and institutions) of moral responsibility by sticking to terms such as “assimilation” or “forced assimilation”?  Put another way: is the notion of cultural genocide more of a moral indictment than an accurate assessment given what could be considered a “messy” historical record?[23]  And finally: once the Indian Residential School experience is confined to the “Dark Ages” is an enlightened future assured?  Look, for example, to the recent spate of churches on reserve lands set ablaze.

Apart from a learned sense of justice, I suspect that Beverly McLaughlin was also sensitive to the regenerative powers of motherhood and the implacable harm of the Indian Residential Schools which deprived parents of their children along with opportunities to teach them cultural traditions.  Clearly words do matter when validating a victimized population.  But we are now on a slippery slope, having gone from “cultural genocide” – not a legal concept in the UN’s eyes - to “genocide”, which, as I have said, stipulates criminal intent above all other factors.  In signing on to the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), which the Liberal government did under Justin Trudeau in 2016 (reversing the hard-nosed Harper government position), Canada recognizes that it has a responsibility to guard against “genocide”.[24] This has lead us to the panicked parliamentary ‘group think’ of June 2021 following the Kamloops graves “discovery.”  The no-nuance mindlessness of our public representatives suggests that we really do need a bicameral legislature.  Canada seems to have gone from the fashionableness of the stodgy parliamentary prejudices of Mackenzie King to the frightened, over-reflexive conformism of Ottawa today.  Dare I say: neither is right.  “Cultural Genocide”, “Genocide”, now “Ecocide” - and I might add “Terrorism” - are prevalent terms widely used these days within Canada’s public discourse.   Sadly, given our predisposition for fix-all labels we also appear to be committing (beg your pardon) “English languagecide”.

 

 

 

 

 

 

 

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[1] Olivia Stefanovich, “NDP push to declare residential schools defeated in House,” CBC News (10 June 2021) online.

[2] I am most indebted to two particular studies, the influence of which greatly shaped my interpretation.  See David B MacDonald and Graham Hudson “The Genocide Question and Indian Residential Schools in Canada.” Canadian Journal of Political Science 45:2 (June 2012) 427-449.  See also the exceptional analysis by Payam Akhavan, “Cultural Genocide: Legal Label or Morning Metaphor”, McGill Law Journal 62:1 (September 2016), 243-270.

[3] Online: The United Nations Office on Genocide Prevention and the Responsibility to Protect.

[4] MacDonald & Hudson, Canadian Journal of Political Science, 430

[5] Akhavan, McGill Law Journal, 263.

[6] Quoted in MacDonald & Hudson, Canadian Journal of Political Science, 435.

[7] Akhavan, McGill Law Journal, 259

[8] Ibid., 265

[9] Ibid., 261

[10] Ibid., 259.

[11] MacDonald & Hudson, Canadian Journal of Political Science, 443

[12] Akhavan, McGill Law Journal, 259

[13] Joseph Brean, “Canada was ready to abandon 1948 accord if UN didn’t remove ‘cultural genocide’ ban, records reveal,” National Post (8 June 2015) online.

[14] Ibid.

[15] Akhavan, McGill Law Journal, 260

[16] National Post (8 June 2015) online

[17] Peter Sindell and Ronald Wintrob, “Cross-Cultural Education in the North and its Implications for Personal Identity: The Canadian Case,” The Arctic Institute of North America (1969) online.

[18] Quoted in Ibid.

[19] Ibid.

[20] John Paul Tasker, “Residential Schools Findings Point to ‘Cultural Genocide’, Commission Chair says”. CBC News (29 May 2015) online.  See also Sean Fine, “Chief Justice Says Canada Attempted “Cultural Genocide” on Aboriginals.” The Globe and Mail (28 May 2015) online.

[21] Akhavan, McGill Law Journal, 268

[22] MacDonald & Hudson, Canadian Journal of Political Science, 431

[23] Ibid., p. 431.

[24] See Article 7 (2) of the “United Nations Declaration on the Rights of Indigenous People” online.