Trudeau’s acknowledgment of Indigenous genocide could have legal impacts: experts

OTTAWA — Prime Minister Justin Trudeau’s acceptance of an inquiry’s finding that Canada committed genocide against Indigenous people could have tremendous legal impact if a court ever weighs Ottawa’s responsibility for crimes against humanity, experts say.

Amid growing outrage and grief over an unmarked burial site at a residential school in British Columbia, Trudeau reiterated this week that he accepts the conclusion of the 2019 inquiry into missing and murdered Indigenous women that “what happened amounts to genocide.” 

“To truly heal these wounds, we must first acknowledge the truth, not only about residential schools, but about so many injustices both past and present that Indigenous Peoples face,” he said Thursday.

Bruno Gelinas-Faucher, a University of Montreal law professor, said that if a court was determining whether Canada committed genocide, it would assess whether the acts in question amount to genocide under international law and consider whether the country is responsible for those acts.

The missing and murdered women’s inquiry concluded in its 1,200-page report that Canada deliberately and systematically violated racial, gender, human and Indigenous rights.

Gelinas-Faucher said the report attributed the actions of genocide to Ottawa because they were committed by the government or through its guidance or instructions.

“A court could say, under current rules of international law, that the state has accepted responsibility under international law for the crime of genocide,” he said. 

“That’s a big deal.”

The news of the unmarked burial site, believed to contain the remains of 215 children, in Kamloops, B.C., has raised questions about whether Canada could face new legal consequences, either for the individual case or for the widespread abuse and deaths in residential schools. 

The RCMP said this week it has opened a file into the unmarked graves at the Kamloops Residential School but that the Tk’emlúps te Secwepemc are the lead investigators.

As for a broader criminal case, genocide and crimes against humanity are illegal in the Canadian system, but a case would need to be initiated by public prosecutors.

The International Criminal Court in The Hague, Netherlands, can examine cases referred by the United Nations Security Council or the state itself, or if the court prosecutor launches an investigation.

A group of Calgary-based lawyers has formally asked the international court to appoint a special prosecutor to investigate the Canadian government and the Vatican for the findings in Kamloops.

But there are many thresholds that must be met before the court prosecutor launches an investigation, said Gelinas-Faucher.

“The court only prosecutes the most heinous, the most grievous crimes … It won’t prosecute low-level officials,” he said. “The court goes only after the big fish.”

Trudeau’s reiteration that Canada committed genocide comes after Germany officially admitted last week that the 1904 mass killings of the Herero people, who rebelled against German colonial rule in Namibia, were a genocide. 

Germany’s admission came with a promise of about $1.6-billion in development aid to the southwest African country.

Guelph University political science professor David MacDonald said Germany has long been an exception in acknowledging its historical genocides, as governments rarely recognize their own countries have committed mass murder.

However, the Kaiser political regime committed the genocide in Namibia and the Nazi regime committed the Holocaust, which makes it easier for the current democratic regime in Germany to acknowledge these crimes, MacDonald said.

If Canada admits to genocide, it’s not just admitting that some earlier and completely different government committed genocide, he pointed out.

“Here you’ve got a Liberal government and a Conservative opposition. And the whole time of the residential schools, you had Liberal governments and Conservative oppositions or Conservative governments and Liberal oppositions,” he said.

The Canadian government would be admitting that the genocide occurred by the hands of institutions that still function more or less now as they did before, MacDonald said.

“The earlier versions of their parties, the earlier versions of their Parliament, the earlier versions of the RCMP, the earlier versions of the Department of Indian Affairs … committed genocide.”

“The attitudes have changed and all the personnel are different, but there’s institutional continuity in Canada, which doesn’t happen in Germany.”

On Thursday, the Federation of Sovereign Indigenous Nations, which represents 74 First Nations in Saskatchewan, welcomed Trudeau’s acknowledgment that Canada committed genocide.

“Our leaders have been calling out this genocide for decades and it is about time that their efforts are acknowledged and the prime minister admits what happened to our people was nothing short of genocide,” said FSIN Chief Bobby Cameron in a statement.

“There is a long road of healing that will come and acknowledging the genocide our people faced is a start. Holistic and wellness services must now become essential and immediately begin in every First Nations community across Canada.”

The Indian Residential Schools Resolution Health Support Program has a hotline to help residential school survivors and their relatives suffering with trauma invoked by the recall of past abuse. The number is 1-866-925-4419.

This report by The Canadian Press was first published June 5, 2021.

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This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.

Maan Alhmidi, The Canadian Press