Why “genocide” was used in the MMIWG report

The Missing and Murdered Indigenous Women and Girls inquiry report made the case Canada has carried out a “genocide” against Indigenous people under international law. Though the Trudeau government accepts the findings of the report, and has promised action, there has been strong public reactions to the use of the term.  CBA National interviewed Fannie Lafontaine, who co-authored the legal analysis of the National Inquiry. Lafontaine is the Canada Research Chair on International Criminal Justice and Human Rights, and is based out of Université Laval.

CBA National:  How do you gauge the reaction to the use of the term "genocide"?

Fannie Lafontaine: The use of the word "genocide" always triggers very emotional reactions. It's a very charged word, legally, so I think it's normal. There are two sets of reactions. One is this perception that genocide is restricted to mass killings and very intensive episodes of violence, mainly lethal violence that can be determined in time. The genocide in Rwanda lasted about eight months. This perception is very entrenched in popular culture, but also even in legal circles. And so to see colonial violence against Indigenous peoples in Canada as genocide requires us to look really at the true nature of genocide, its history, its current interpretation, and to move away from the very restrictive understanding of genocide. This is hard for people. The other [reaction] is the fear that using "genocide" is basically just rhetoric, and it will prevent real debates on the calls to justice, and the recommendations of the National Inquiry. And on this I think, to the contrary, in every country where there is a true history of violence, regardless whether it's armed conflict, whether it's colonialism, whether it's widespread rights violations – you need to label what happens. It always creates a lot of malaise and uneasiness, but that shouldn't drive us away from labelling things as they are.

N: So what do we, as Canadians broadly speaking, not understand about the term "genocide"?

FL: First, the definition [under customary international law] comprises a lot of non-lethal acts. Of the five listed prohibited conducts, there's only one that's directly lethal: killing. The rest – sexual violence and mental harm, imposing conditions of life to bring about physical destruction, transferring children from one group to the other – are all measures are included in the definition, and they're not lethal. And people usually don't really understand this. If it's not accompanied by killing, they don't see the genocide.

The second is that these acts need to be accompanied by a specific intent to destroy a protected group. And that specific intent to destroy has always been interpreted in the context of criminal law and individual criminal liability. It was restricted as an understanding of intent to destroy physically or biologically a group. And there are very literal interpretations of the definition of "genocide" that does not restrict destruction to physical or biological destruction. That includes the destruction of the group as a social unit. And this has been confirmed in jurisprudence, in German courts, by the European Court for Human Rights. There is a very legitimate interpretation of the definition, in international law, that includes more than mere physical destruction. So all of that taken together allows us to understand genocide as being able to accommodate colonial violence and its gendered consequences on women and girls outside of this notion mass killings.

N: Can you explain how we show the responsibility of the State?

FL: Yes, and it’s important to understand that we are talking about state responsibility, not individual responsibility. For genocide, mens rea – or the intent to destroy – is always difficult to prove for a state because it's an abstract entity. So its intent is evidenced by policy. Its actions are mostly enacted through policies that show its aim at destruction. In Canada, we look at a lot of aggregate acts over the years: the Indian Act, the Sixties Scoop, the residential schools. And there's only one conclusion: The policies were all aimed at physical destruction and also destruction of the social unit. That will entail a state's responsibility.

N: And according to the report, Canada's genocide is ongoing Canadian government policy. How do we address that? How do we effectively end policies that perpetuate those colonial legacies? Particularly as some of them – you mentioned the Indian Act – are described as an impossible fix.

FL: Well, the wrongful act of the state is composed of various distinct acts and omissions, which in the aggregate, violate the prohibitions of genocide. Those are ongoing because some of those problematic policies are being maintained. Now, the Prime Minister has accepted that there's genocide, so I think that means he also accepts the consequences and the obligations of reparation. And part of that obligation of reparation is cessation. The Inquiry made a number of calls to justice and the Prime Minister agreed to a national action plan that will serve that purpose. And things have been pretty clearly identified by numerous commissions of inquiries. What needs to be done is pretty well documented. Also, just recognizing that it is genocide and it is a wrongful act is already a good step forward because that means you know you're going to have to do something about it.

N: We've now seen international headlines reporting that Canada is being complicit in race-based genocide of Indigenous women. What does it mean that a country like Canada, which in the minds of many does its best to uphold the rule of law, is being described as carrying out genocidal acts? What does it mean for the world?

FL: It changes history. Canada, Australia, the United States, and a lot of colonial states that have Indigenous populations have been in a very defensive mode. This is the recognition that we did a lot of things wrong as a state in trying to build this great nation of ours. And this nation is them and us, and we need to decolonize and indigenize and get back together with a common understanding. And to the contrary, it's a sign that we uphold the rule of law. It's a sign that we respect fundamental human rights. It's a sign that we can call ourselves out when this happens to us. It gives us legitimacy, then, to say to the world when something happens that something is wrong in terms of human rights and international law or the rule of law.

N: How do you respond to those who would say we are stoking division by using the term "genocide," and that this distracts us from the actions that need to be undertaken?

FL: It is essential to label what happens, and to it characterize it properly. To say it distracts is avoidance. It's like sexual violence and domestic violence. Compare it to different instances of evolution of human rights and understanding of reality. People say, "Oh, no. It doesn't matter that you say it like this. We'll solve it." No, you know what? It matters. And it matters when we talk about crimes against humanity committed somewhere else. So why shouldn't it matter here? Labelling is important because it allows us to move forward with the right version of history. And for non-Indigenous Canadians, just look at objectively, and you may say, "Fine. You know, this qualifies." Or not. You can have the debate. But for Indigenous people, it was the only term to be used. And this is what I think of that National Inquiry. It's like the only thing that comes out of the National Inquiry that is inescapable.

N: Was it appropriate to deploy the term "genocide" in a report that is fundamentally gender-oriented?

FL: The commissioners thought it was inevitable, because it's a root cause, and their mandate was to look at the root causes of the violence against women and girls.

N: You made the point that this is history and that we can't ignore this anymore. What if the report is ignored or its impact is limited because of the use of such a powerful term?

FL: Then I think Canada will find itself in some court of justice. But I think Canada is somewhere else. I don't think it's going to be ignored at all. The government's acceptance of the conclusions, including on genocide, is historical, and that's a really good foundation for proper nation-to-nation reconciliation because you don't have to go through the confrontational judicial setting. I think the national action plan is the next step. And if it is for some reason they do ignore the issue, I think Indigenous voices are numerous enough, with their allies, to make sure that this is not going to happen.

N: And you're confident it will sink in with the broader population?

FL: The broader population needs to be educated. We have been, collectively, given a history of ourselves that is not accurate. And we will need time to educate ourselves, and including Indigenous people, about the reality on which this nation was founded. And without guilt. It's not about that. It's about the Canadian population, Indigenous and non-indigenous, newcomers, to see what this country can do without false interpretations of its past.

This interview has been edited and condensed for publication.