Contextualizing Aboriginal Residential Schools in Canada: How International and Domestic Law Can Help US Interpret Genocide Claims

In 19th and 20th century Canada, indigenous residential schooling formed part of a government-sponsored policy of forced assimilation. In this paper, we investigate to what extent the 1948 UN Genocide Convention (hereafter the UNGC) is applicable to the study of Aboriginal residential schooling in Canada. We begin with a short history of the residential schools and contemporary debates about their negative impact. We then turn briefly to some claims by academics and activists (Chrisjohn and Young, Therrien and Neu, Cardinal), who have argued that the federal government and subsidiary institutions, together with the four mainline Christian churches, intentionally committed genocide. The Jewish Holocaust is often invoked (inappropriately we argue) in this literature. After this background, we proceed to a larger theoretical discussion concerning the difficulty of defining genocide and applying that definition in any meaningful legal way in Canada. We argue that the question of whether “genocide” was committed in Canada cannot be definitively settled. In part this has to do with conflicting and polyvalent interpretations of the term. First, Raphael Lemkin’s original broad definition (1944) has been used by many indigenous people to interpret cultural, religious, linguistic, and other forms of collective suffering. The case might be made that a “Lemkinian” form of genocide did take place in Canada. This however, would be an academic argument, not a legal one. Second, genocide is defined in international law through the UNGC and later interpretations at the ICTY and ICTR. Our interpretation of international law, conventions, and legal precedents indicates that genocide has not been committed in Canada. Third, genocide is more narrowly defined in Canadian domestic law, and in domestic legal proceedings. Here too, genocide seems inapplicable as a means of understanding indigenous experiences.