Irish Centre for Human Rights Blog

Rowan Hickie is a LLM in International Human Rights Law Candidate at the Irish Centre for Human Rights at the National University of Ireland Galway. Rowan holds a Bachelor of Arts Honours degree and a Juris Doctor degree from the University of Alberta, Canada.

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In Canada, the month of June is Indigenous History Month, with National Indigenous Peoples Day celebrated on June 21. National Indigenous Peoples Day is a day to recognize the history, heritage and diversity of the First Nations, Inuit and Métis peoples in Canada. On this year’s National Indigenous People’s Day, Canada formally adopted Bill C-15, affirming the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as applicable in Canadian law.  As one of the four States who initially voted against the adoption of the UNDRIP, Canada’s adoption of Bill C-15 marks a positive step forward for Canada and a move towards reconciliation as laid out under the Canadian Truth and Reconciliation Commission of Canada’s Calls to Action (See Calls to Action 43 – 44).

However, despite this positive step, the announcement of the adoption of Bill C-15 falls in the wake of the discovery of the unmarked graves of 215 Indigenous children on the grounds of the Kamloops Indian Residential School in late May 2021. This was not the only recent discovery of unmarked graves however, with  a new discovery of 751 unmarked graves at the Marieval Indian Residential School just days after National Indigenous Peoples Day and the discovery of 182 unmarked graves at the St. Eugene’s Mission Residential School site announced on June 30^th 2021.

The discovery of the remains and unmarked graves of Indigenous children at Residential School sites provides a clear example of the devastating impact of Canada’s colonial practices and policies aimed at assimilating Indigenous peoples and the need for Canada to uphold its human rights obligations to Indigenous peoples, both under its own domestic law, and now under UNDRIP.

Canada’s Residential Schools and Cultural Genocide

Residential schools formed an integral part of Canada’s assimilation policies and practices, meant to assimilate Indigenous peoples into Canadian settler colonial society. From the 1880s to 1996, Indigenous children were taken from their homes and communities and placed in Residential Schools. Attendance at Residential schools was compulsory for Indigenous children from 1920, when the Indian Act (SC 1920, c.50) was amended to reflect this (s.10). Under the amended Indian Act, parents and guardians who hid or refused to hand over their children were liable to be fined or imprisoned and the child could be arrested without warrant and brought to the school forcibly (s. 10(4)). 

The Canadian Government, in cooperation with religious authorities, operated Residential Schools as either boarding schools, industrial schools, or day schools. In seeking to “civilize” and assimilate Indigenous children and peoples into Canadian settler colonial society, Residential Schools served to eliminate Indigenous culture and sever family and community ties.

The Truth and Reconciliation Commission has described Residential Schools as an act of cultural genocide, consisting of the destruction of the structures and practices of a targeted group, including: political institutions, language, spiritual practices and seizure and destruction of cultural significant objects. Of greatest significance in regard to Residential Schools, however, was how they served to “prevent the transmission of cultural values and identity from one generation to the next.” Cultural Genocide as described by the Truth and Reconciliation Commission is well documented by survivor testimony and reported by the Commission in its reports.

In its Report, They Came for the Children, the Truth and Reconciliation Commission notes that students at Residential Schools were given numbers, dressed in uniforms, forbidden to speak their language, separated based on gender and often kept apart from their siblings. Abuse ran rampant at the schools where children were subjected to emotional, psychological, physical and sexual abuse at the hands of those running the school and other attendees. The abuse, in combination with poor living conditions, overcrowding, inadequate healthcare and inadequate food led to significant numbers of deaths at the schools.

The Discovery of Unmarked Graves – The Children Who Did Not Return Home

The Truth and Reconciliation Commission identified 3,200 confirmed deaths of children at Residential Schools in its 2015 Final Report on Missing Children and Unmarked Burials. Due to poor record keeping and the destruction of school files, the actual number of children who died is likely much higher, with the Truth and Reconciliation Commission estimating at least 6,000 children died in or disappeared from Residential Schools. However, following the recent discoveries, the number of suspected deaths has grown exponentially. 

Murray Sinclair, the former Chair of the Truth and Reconciliation Commission and retired Senator and Federal Judge, stated that the true figure of  Residential Schools deaths could be “in the 15-25,000 range, and maybe even more”.  As more Residential Schools are searched for unmarked graves, it is likely that the number of discovered remains will rise . 

Calls for The International Criminal Court to Investigate Crimes against Humanity

On June 3, 2021, in response to the discovery of the 215 of unmarked graves at the Kamloops Residential School site, a group of Canadian lawyers formally requested the Prosecutor of the International Criminal Court (ICC) to launch a Preliminary Examination  pursuant to Article 15 of the Rome Statute of the International Criminal Court into the suspected commission of crimes against humanity by Canadian State and religious officials.

In their complaint to the ICC, the lawyers submit that the deaths, mass unmarked grave and general treatment of the 215 deceased children constitute crimes against humanity as per Article 7 of the Rome Statute. Under Article 7, crimes against humanity can include acts of murder, extermination, forcible transfer of a population, rape, severe deprivation of physical liberty, and other “inhumane” acts, when such crimes take place as part of a “widespread or systematic attack directed against any civilian population”. The lawyers posit that the 215 children found at the Kamloops Residential School are evidence of such crimes against humanity and that there are likely far more victims beyond these 215 children.

As more unmarked graves at Residential Schools are discovered over the coming weeks, months and years, it is likely that the call for international action, whether from the ICC or UN human rights bodies will continue to grow, especially in the wake of Canada’s adoption of UNDRIP into its domestic law.

Reconciling the Past with the Present – Implementing UNDRIP

In Canada’s path towards reconciliation, implementing UNDRIP and Bill C-15 is of vital importance. Marta Hurtado, the UN Human Rights Office Spokesperson on Canada, in her comment on Canada’s adoption of Bill C-15 emphasized that while the Act establishes a “framework towards healing, truth and reconciliation” it must be promptly implemented and be utilized to ensure “that the inequalities, discrimination and violence that indigenous peoples have suffered over time are swiftly and effectively addressed.”

It is uncertain how Canada will reconcile its obligations under Bill C-15 and UNDRIP with its past and present actions and positions towards Residential Schools. What is certain however, is that the path towards reconciliation is far from easy and will require the participation of Indigenous peoples and the Federal Government to ensure that Canada fulfils not only its domestic legal and ethical obligations to Indigenous peoples, but also its international obligations.