What Should Lawyers Take Away from the Report?
The National Inquiry into Missing and Murdered Indigenous Women and Girls “started and ended with the stories of survivors and families of victims of violence against Indigenous women and girls,” Dr. Karine Duhamel told seminar participants at Robson Hall on September 25, 2019. She is former director of research for the inquiry and a curator at the Canadian Museum for Human Rights. Having these compelling stories as the centrepiece of the inquiry was an intentional attempt at decolonising the inquiry to promote healing for the families and survivors.
The inquiry had a mandate to examine systemic causes of violence against Indigenous women and girls; underlying social, economic, cultural, institutional and historic contributions to ongoing violence; and existing institutional policies and practices for addressing violence. It was a result of decades of advocacy by families and survivors and the aftermath of the Truth and Reconciliation Commission hearings.
Duhamel said a recurrent theme in most of the stories was encounters when victims seeking institutional assistance and support were treated with disdain or inaction. These moments were transformative because the institutions designed to protect them failed to act as expected, thereby leaving them in precarious situations. The stories also showed that violence is the result of intergenerational trauma, and economic and social marginalisation. They revealed a lack of institutional will in addressing the problem, and denial of the expertise and agency of Indigenous women whose proffered solutions were neglected.
She outlined key issues lawyers can take away from the report. The inquiry accepted artistic expressions as evidence. This was a non-traditional evidence-gathering approach that allowed witnesses to depict their experiences in an artistic fashion, accompanied by short statements about their interpretation of the art. The inquiry also strongly advocated for trauma-informed spaces and the rights of families not to be retraumatized through cross-examination. Another key issue that should concern lawyers is Indigenous peoples’ mistrust of the legal system, which results from institutional failure to address the sufferings of Indigenous people. Recognizing that “families need help navigating the legal system and understanding how it works,” the inquiry recommended improving the knowledge, awareness and expertise of everyone involved in the criminal justice system, Duhamel said.
The MMIWG report is based on the lived experiences of people who had the courage to come forward and share their stories of tragedy, trauma, transformative encounters and hope. Duhamel concluded that “understanding these stories is where change starts.”
Does Use of the Term Genocide in the MMIWGI Report Matter?
Violence against Indigenous women and girls may not fulfil the requirements for genocide under existing legal frameworks, but it should be categorised as such, University of Manitoba Peace and Conflict Studies director Dr. Adam Muller told seminar participants. Inclusion of the term in the MMIWG inquiry report is a welcome development, he said.
The inquiry adopted a cautious approach regarding the genocide claim because liability for the commission of genocide can only be determined by judicial authorities. The UN Genocide Convention prescribes punishment for perpetrators of genocide, so there is some defensiveness among Canadians about applying the term here.
Raphael Lemkin’s idea formed the core of the Genocide Convention. However, the Convention altered his original work by excluding cultural genocide to accommodate colonial governments and institutions. “The Genocide Convention is an instrument of politics and not of justice,” Muller said.
He explained that Lemkin’s idea of genocide centred on the destruction of groups. Groups are sustained by the physical existence of members, their ability to biologically reproduce, and their capacity for spiritual or cultural expression. Genocide occurs when one of these capacities is destroyed. Lemkin further identified two distinct but overlapping modes of genocide – barbarism and vandalism. Barbarism is physical destruction and violence targeted at a group while vandalism is non-physical destruction of a group’s cultural symbols and institutions. Groups can cease to exist for non-physical reasons. Lemkin viewed both barbarism and vandalism as criminal and immoral.
Legally, liability can only be determined if the perpetrator’s intent to destroy a group is established. The national inquiry made reference to a special intent to destroy Indigenous People, including physical and non-physical destruction. This special intent can be difficult to prove. There is a proposal to replace special intent in the Genocide Convention with “reasonable foreseeability,” i.e. where the perpetrator’s act should reasonably be expected to result in the destruction of a group.
“Does use of the term genocide in the MMIWG inquiry report matter?” Muller asked. He said the inclusion matters especially when the depth of the struggles of Indigenous groups over the course of many generations is taken into consideration. However, the term should not draw attention away from the most crucial features of the report. He concluded that “genocide in Canada is an ongoing process that is underwritten by the thought that indigeneity is abhorrent. The report makes visible this problem, which has been pathologically and politically hidden for a very long time.”
What kind of opposition did the inquiry encounter with respect to protecting family members from cross-examination?
The opposition was mostly from law enforcement institutions.
What commitments has the government made on implementation of the report?
The current federal Liberal government accepted the findings of the inquiry. There are some new structures seemingly in response to the report. The implementation of the report is likely to be uneven and may depend on the outcome of the upcoming elections. It is also possible that provincial governments may take a more prominent role in moving the agenda forward.
What do you think the media missed in their coverage of the inquiry’s work?
The media considered the report in a disjointed way. Reporters did not take the time to read the report for a proper understanding of the depth of the effort committed to the report, which resulted in misinterpretation.
How did the inquiry come about its findings on violence against two-spirited groups?
The exclusion of two-spirited groups was one of the gaps identified by the inquiry. A research mechanism was created involving guided dialogues to talk about the distinctive challenges encountered by two-spirited people in accessing proper investigation and justice.
What would you say about the perception that most of the violence against Indigenous women is perpetrated by Indigenous men? How should that be viewed in light of the genocide claim?
Statistically, it is incorrect to say that most of the violence was committed by Indigenous men. However, in many instances where Indigenous men are perpetrators, there is a link between colonial interference and the violence. Internalized oppression resulting from decades of oppression against Indigenous groups can be linked to many of the crimes committed by Indigenous men.
Listen to podcasts from seminars in this series.