Tag Archives: Aboriginal peoples and the law

History of First Nations Genocide in Canada

The United Nations defines genocide generally as “any act committed with the idea of destroying in whole or in part a national, ethnic, racial or religious group” (United Nations, 2013) and elaborates on this statement to include any of the following acts: “killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting conditions calculated to physically destroy the group (the whole group or even part of the group), [and/or] forcefully transferring children of the group to another group” (United Nations, 2013). The UN also states that under this convention, there is no immunity from prosecution for nations engaging in practices deemed as genocide (2013).

While Canada prides itself on its reputation as a peacekeeping nation, many unfortunate instances in history have been swept under the rug in order to preserve the public image of a diplomatic, unified state. While the horrific treatment of Indigenous Peoples in Canada is increasingly garnering public attention, the lack of knowledge about these historical events and legislation, which systematically sought to destroy First Nations culture, is still a critical issue in Canadian society. From the Vatican’s Papal Bulls exploited by European monarchs in the 16th century to vehemently misappropriate Indigenous land to the implementation of the Indian Act of 1876 and the Indian Residential School System, Canada’s development and history expressed and continues to express a colonialist stance and Eurocentric priority. To commence discussion, an analysis of the United Nations literature on genocide coupled with synthesis of historical events involving the Indigenous in Canada is necessary.

Regarding the initial, broad definition which states that “an act committed with the idea of destroying in whole or in part a national, ethnic, racial or religious group” as genocide, it is essential to refer to early Western conquest circa the 1500s. Papal Bulls and the Doctrines of Discovery were used by Christian colonizers around the world, to seize land that was not rightfully theirs; monarchs were not only permitted to claim this land as theirs on grounds of being divine Christians, but were actually encouraged to do so employing whatever force necessary (Gardiner, 2013). This intentional attempt to “destroy in whole or in part… a religious group” is evident, as the goal of the European monarchs and crusaders was to globally purge the non-Christian world (Gardiner, 2013). Following initial conquest, North America was bestowed to King George, with the stipulation that Aboriginal land title would be preserved unless otherwise ceded by treaty, sold to the Crown and resold to settlers (Gardiner, 2013). The Royal Proclamation officiated these ‘guidelines’ and claimed to establish purpose of maintaining both European and Aboriginal best interests and unity, when in reality, it initiated colonialist rule over the First Nations Peoples of Canada (Gardiner, 2013). Subsequent acts such as the Gradual Civilization Act of 1857 and the Gradual Enfranchisement Act of 1869 directly sought to destroy the national, ethnic, racial and religious group(s) of First Nations Peoples, by coercively swaying Aboriginal persons to surrender their statuses as Native individuals with the promise of various ‘incentives’ (Gardiner, 2013). Fierce attacks on Indigenous sovereignty, in addition to manipulative legislation that deviously persuaded individuals to abandon one’s cultural identity are a direct assault on a “national…” group. Furthermore, the Indian Act of 1876 was vastly more overarching than previous acts and dictated control over practically any and every small aspect of Aboriginal life, in conjunction with the state’s agenda of aggressive assimilation (Gardiner, 2013). The Indian Act prohibited a multitude of significant Aboriginal cultural practices – an especially notable example being the legal prohibition of the traditional potlatch ceremony: another example of a deliberate attack on Indigenous culture (Gardiner, 2013).

Moreover, the ultimate goal of the Indian Residential School System (1880s – late 1990s) was to “kill the Indian in the child” – a statement that makes direct reference to the broad UN definition in addition to the particular outlined genocide paradigms. Young Aboriginal children were abducted from their parents by the state, and transferred to facilities maintained by religious, European individuals (Gardiner, 2013); this “forceful [transfer of] children of the group to another group” exemplifies the United Nation’s definition of genocide. Furthermore, children were forced to disengage with their First Nations cultural identities by means of appalling punishments in the form of severe emotional, mental, physical and sexual abuse daily (Gardiner, 2013). Children were denied adequate diets and in turn, became extremely malnourished and diseased; additionally, living conditions within the schools were repulsive which also contributed to widespread illness (Gardiner, 2013). According to the UN definitions, this alone would satisfy every single criterion to deem genocide, most specifically “causing serious bodily or mental harm to members of the group”. Likewise, many First Nations children died at the hands of their captors, either directly or indirectly as a result of the cruel maltreatment and neglect of individuals confined within the ‘schools’, yet another example of the systematic destruction of the Indigenous nation within Canada (Gardiner, 2013).

To readdress the question on the whole, the premeditated and relentless attack on First Nations culture and Peoples within Canada was 100% genocide. It is evident that historically, Canada has taken a variety of shocking approaches with the intention of eliminating not only Aboriginal autonomy, but additionally, Aboriginal culture and Peoples. Early Westerners asserted rule over First Nations Peoples through unjust and violent means all indicative of genocide. While the declaration of these historical instances as ‘genocide’ may be inflammatory or offensive to particular members of society, it is a duty our nation owes to First Nations Peoples; there must be acknowledgment and awareness of the harms and tragedies inflicted upon their communities and families. The pervasive colonist, Western ideology still present in Canada asserts that a mere apology and extra funding is ‘enough’ or in some cases, ‘too much’ in terms of remedial measures for First Nations peoples in response to the aforementioned events. I argue that while potentially provocative, labeling the acute, ill treatment of Indigenous Peoples over an extended period of time as ‘genocide’ is completely accurate and necessary. The recognition of the First Nations genocide in Canada would be an act of demystification, as it provides clarification regarding significant historical events that have since been progressively distorted and omitted from public discourse, as they have not traditionally been accepted in accord with the hegemonic Eurocentric stance of much of North America. Acknowledging these injustices and engaging in this ‘consciousness-raising’ provides opportunities to better analyze and comprehend how the historical context and treatment of Aboriginal Peoples in Canada has contributed to the current heightened rates of abuse, victimization and overrepresentation of Indigenous Peoples within the Criminal Justice System today. Rejecting the status quo approach of the past by actively engaging in critical dialogue regarding the extensive history of First Nations inequality and wrongs in Canada is an essential step in movement towards promoting equality and justice, and the deconstruction of existing social hierarchies.


Gardiner, Paige. (2013). Indigenous People of Canada and Structural Factors. Canada.

United Nations. (2013). Convention on The Prevention and Punishment of the Crime of Genocide. The United Nations. Retrieved from http://www.un.org/cyberschoolbus/treaties/genocide.asp



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Historical Treatment of Aboriginals and Genocide


Genocide is defined as the “deliberate and systematic destruction, in whole or in part, of an ethnic, racial, caste, religious, or national group”.  Genocide is particularly linked with World War II and the mass execution of Jews.  However, the United Nations definition indicates that “causing serious mental or bodily harm towards a group” is an integral component of genocide.  Therefore, when looking at Aboriginals and their history, genocide is represented by colonialism through the exploring, conquering and settling on land.  With the introduction of regulations and policies to “civilize” the Indian, the government caused “serious mental or bodily harm”, therefore the historical treatment of Aboriginals should be legally defined as genocide.

As Europeans arrived in North America, they viewed Aboriginals as being inferior to them in several different ways.  Although Aboriginals had their own governance systems, laws, and ways of living, they were dehumanized and labelled as being savages or beasts by European settlers.  This labelling was a way to rationalize European expansion and exploitation of Aboriginal peoples and their territory.  European westernized ways of thinking assumed that anything non-European represented backward thinking.  Europeans who were directly involved in the fur trade saw and the settling of the land saw that the Aboriginals were a potential threat to any gain of profit or colonization.

Millions of Aboriginals died as they were purposely given blankets that contained small pox (Thorner, 2003).  Aboriginals had never been in contact with these diseases; therefore they did not develop any immunity to them. Diseases that were brought over by Europeans included tuberculosis, measles, venereal disease, influenza and small pox. As a result, these epidemics spread inland through encounters with Europeans and through trade (Thorner, 2003).  Several million Aboriginal people were infected and eventually died.  Therefore one can argue this was a way to reduce the Aboriginal population, so Europeans could expand further into Canada without as much resistance.

Moreover, as the Indian Act was introduced, Aboriginals were pushed to assimilate.  Aboriginals became defined, as Indians were seen as being of status or non-status.  However, several incentives and regulations were introduced that pushed Aboriginals to change their status.  Incentives such as the right to vote were developed through systems of enfranchisement.  Moreover, individuals would lose their status if they became doctors, lawyers and clergy men or even if they acquired a university degree (Monchalin & Marques, 2013).  As Aboriginals were placed on reserves, they were not able to leave the reserve without permission of an Indian Agent.  These men resided over the reserve, and were able to enforce laws that prohibited Potlatches and Sun Dances.  Although these rituals were an integral part of Aboriginal culture, they were banned from reserves.

The introduction of residential schools was an instrumental part of Canadian history, which many have argued was a cultural genocide for Aboriginal children.  These children were forcibly removed from their families and taken to residential schools.  They were required to remove their traditional clothing and to cut their hair.  In addition, they were given English or French names as their more traditional names were not acceptable.  These children were severely and cruelly punished if they spoke their mother tongue.  The education they received was not adequate, and it usually focused on labour training and domestic work (Chansonneuve, 2005).  As a result, individuals who survived these schools were not able to find work that was suitable for further advancement as their abilities were limited.

These children were physically, sexually, emotionally and mentally abused.  They were denied a safe family environment and subjected to severe violence. They were denied the teachings of their parents and of their culture.  As a result, they were not able to understand or acquire the values, attitudes, or beliefs of Aboriginal culture.  Several individuals did not acquire life skills or parenting skills which has impacted their children and their children’s children (Monchalin & Marques, 2013).

Therefore, several individuals turned to substances such as drugs and alcohol to overcome many of these experiences.  This substance abuse has increased crime rates as there is a direct link with alcohol and crime.  Moreover, these individuals are more prone to commit acts of violence, as they have been traumatized by their experiences (Monchalin & Marques, 2013).  As a result, there is a widespread over presentation of Aboriginals in Canadian prisons.  In addition, Aboriginals who rely on substances were more likely to commit suicide (Chansonneuve, 2005).  The rates of suicide amongst Aboriginals are higher than the general population (Howard, 2010). Other factors that are associated with residential schools include disconnected families, families with single parents, and family violence (Monchalin & Marques, 2013).  Family violence and increased rates of poverty have been an instrumental factor in the removal of Aboriginal children from their families.  This then creates more of a disconnect from Aboriginal culture as these children are placed in foster homes.

Thus, through colonization, aggressive assimilation and residential schools, the treatment of Aboriginals should be defined legally as genocide.


Howard, C. (2010). Suicide and Aboriginal Youth. Sudbury: Laurentian University.

Thorner, T. (2003). A Few Acres of Snow. Toronto, Canada: Broadview Press.

Chansonneauve, Deborah. (2005). Reclaiming Connections: Understanding Residential School Trauma among Aborginal People.  Section I I: Residential Schools. P.33-48.  Ottawa, ON: Aboriginal Healing Foundation.

Monchalin, L, Marques, O. (2013) Preventing Crime and Poor Health Among Aboriginal People: The Potential for Preventative Programming. First Peoples Child & Family Review, 7(2), 112-29.


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Historical treatment of Aboriginal Canadians and Genocide


The term genocide was coined by Raphael Lemkin. It can be defined as the destruction or elimination of a certain groups of people. In terms of the historical treatment of aboriginal people in Canada, it may not seem as genocide on the surface to most people, but to others more familiar with what occurred during this time, it’s indeed genocide because the Canadian government employed several harsh methods to oppress and eliminate aboriginal people.

When thinking of genocide most people assume the extreme forms, like the Holocaust or the genocide in Rwanda were millions of innocent people were killed. This is a misconception people hold, it is not only the mass killing of a certain groups of people, but there is a wide array of other acts that fall under genocide.  According to the United Nations definition of genocide, in addition to the killing of members of a group, it includes causing serious mental or bodily harm towards a group, preventing birth in a group, transferring children by force from the group and imposing conditions designed to physically destroy the group of people (Bolen, 2013). Aboriginal people in Canada faced a form of cultural genocide or ethnocide, as Andrew Woolford states in his article. (Woolford, 2009). It can be defined as cultural genocide because the Canadian government in a way wanted to eliminate the beliefs and traditions of aboriginal people and assimilate them into Canadian culture.

Naming the historical treatment of aboriginal people genocide would indeed be an act of demystification or clarifications. This is the case because it falls into several categories of the conventions definition. Firstly, it falls in the category of forcefully transferring children from their homes. This is the case because the government removed 20 000 aboriginal youth from their homes from 1960 to 1980, these children were eventually adopted by white families (Bolen, 2013). Although, this method of genocide does not employ the method of extreme killing, it is still genocide because the government is removing the future of a group to make sure it does not exist in the future. Secondly, the historical treatment fall under the conventions definition of genocide because, the Canadian government ignored the spread of tuberculosis in residential schools and did not provide significant health care to these children. There were also high levels of malnutrition at these residential schools. This is genocide because thousands of young aboriginal children were killed by disease and the government could have taken steps to reduce the spread of disease, but no action was taken. What the government did was an obvious example of disregard for human life. In addition to death at these residential schools, children were sexually, physically and mentally abused. There were also many children that committed suicide. Finally the government passed policies that starved aboriginal people to make room for immigration. This is genocide because several aboriginal died as a result of this policy and it was targeted towards a particular group. Although all these events did not involve direct killing they all constitute genocide because the goal was to eliminate a culture of people.

The outcome of naming these historic events genocide would be bitter-sweet for native communities, this is because it does not change what happen, but it shows the government is taking greater accountability for their horrific actions against innocent aboriginal people. In my opinion it should already be considered genocide because it falls under the UN definition of genocide, what is the point of having such a descriptive definition of genocide if you ignore event that clearly represent genocide. It is an embarrassment in my opinion that the UN has not recognized these events as genocide; Phil Fontaine and Bernie Farber should not have to write letters to the United Nations for this recognition. The United Nations definition either needs to be revised or the horrific treatment that aboriginal people faced should be recognized as the aboriginal genocide.

Monture would also employ the word genocide because after reading her work she takes a strong stance against the historical oppression of aboriginal people and parts of Canadian law. Several innocent people were killed after these targeted government actions to get rid of aboriginal people. She was previously a lawyer who is use to reading the criminal code, which is sets of rules that help govern society. Similarly the UN convention has an outline of what is considered genocide and the actions of the Canadian government clearly fulfil those categories, so Monture after looking at the definition of genocide would agree it was genocide.  To conclude, my belief is the events need to be recognized as genocide. There also needs to be more teachings in schools about what happen at these residential schools. I have taken several Canadian history courses that do not even mention aboriginal people or residential school experiences. There needs to be a greater inclusion in school curriculum’s of this oppression. To this day there is a negative perception towards aboriginal people from some members of society. The media plays a huge role in the thinking society has towards aboriginal people, for example several television programs portray aboriginal people as constantly intoxicated. This is an example of a prejudice or a pre-judgement people have towards aboriginal people before knowing them. Greater knowledge and education of aboriginal traditions and culture would improve this problem. I admit, I had this problem at one time but, after learning about their culture and talking to aboriginal friends the media portrayal of aboriginal people has been removed from my head.

Link – short video of aboriginal experiences at residential schools


Bolen, M. (2013, Oct 18). UN urged to declare Canada’s treatment of aboriginals ‘genocide’. The Huffington Post Canada. Retrieved from http://www.huffingtonpost.ca/2013/10/18/genocide-first-nations-aboriginals-canada-un_n_4123112.html

Monture, P. (2006). Standing against Canadian law: Naming omissions of race, culture and gender. In E. Comack (Ed.), Locating law (2 ed., pp. 73-93). Halifax: Fernwood Publishing.

Woolford, A. (2009). Ontological destruction: Genocide and Canadian aboriginal peoples. Genocide Studies and Prevention4(1), 81-97. Retrieved from http://aboriginalhealingincanada.com/resources/4-1.1.woolford.pdf


by | November 3, 2013 · 11:17 pm

Food for Thought: CLS, Racism, and Law

This week marked our first of three teach-in weeks, with two teach-ins based on works by Monture (2006) and Jakubowski (2006).

Locating Law – Standing Against Canadian Law: Naming Omissions of Race, Culture, and Gender (Monture), pp. 73-93

Locating Law – “Managing” Canadian Immigration: Racism, Ethnic Selectivity, and the Law (Jakubowski), pp. 94-122

The general theme of the class was an introduction to Critical Legal Studies, with a special emphasis on racism and law.

There are two food for thought questions for this week. You are welcome to write a post in response to either of them (but not both).

Food for thought 1:

Monture’s (2006) chapter is subtitled “Naming Omissions of Race, Culture, and Gender”. ‘Naming’, in this context, reflects the commitment to demystification – critically examining official narratives and dominant ideologies – that informs the Critical Legal Studies and Critical Race Theory perspectives.

Recently, and not for the first time, there has been some debate regarding the appropriate way of naming the historical oppression of Aboriginal peoples in Canada. Some have argued that the actions of Canadian governments in relation to Aboriginal peoples constitute genocide, according to the Convention on the Prevention and Punishment of the Crime of Genocide.

Article 2 of the Convention reads:

genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial 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.

Phil Fontaine, Bernie Farber, and others recently co-signed a letter to the UN Special Rapporteur on the Rights of Indigenous Peoples arguing that the residential school system, the ‘Sixties Scoop’, policy of forced starvation under John A. MacDonald, and recently revealed nutrition experiments performed on children, taken together, are indicative of a prolonged campaign of genocide.

Monture (2006) explains the historical role of legal processes in the reproduction of systemic racism and oppression directed towards Canada’s Aboriginal peoples. She is deeply skeptical about the prospect of achieving transformative change through the mainstream justice system, arguing that it is simply incapable of engaging in the macro-level reflection necessary to confront structural racism.

Question: Would naming the historical oppression of Aboriginal peoples in Canada genocide, according to the Convention, be an act of demystification? What would be the outcome or effect of such an act of naming? How do you think Monture, based on her argument in Standing Against Canadian Law, might respond to this call to employ the moral and legal language of genocide? What is your own position on this question?

Of interest: Andrew Woolford’s article on ‘Ontological Destruction’

Food for Thought 2:

Lisa Marie Jakubowski, in her chapter “‘Managing’ Canadian Immigration”, explores the explicitly racist history of Canadian immigration policy and the role of immigration law in perpetuating forms of systemic discrimination.

The 2010 MV Sun Sea incident represents a major ‘moment’ in recent Canadian immigration policy and politics.

Question: First, provide a brief description of the events surrounding the arrival of the MV Sun Sea. Then, briefly explain any shifts in immigration policy that followed from the incident (including policies and laws associeted with the issue of ‘irregular arrivals’). Finally, apply Jakubowski’s arguments to this case. Has the response to the MV Sun Sea incident represented a continuation of the pattern that Jakubowski describes?

Posts in response to these questions should be submitted before our next class.

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