Supreme Court Chief Justice Beverley McLachlin's assertion that Canada attempted "cultural genocide" against aboriginal peoples is launching a debate on whether Canada has sugar-coated its history, failing to confront the magnitude of the harm it has done to aboriginals.
It is also highlighting a debate about the proper role of judges. Slightly more than two decades ago, the late Supreme Court justice John Sopinka urged judges to put aside their "fear of entering the political fray," saying the biggest threat to free speech came from the judiciary's self-imposed restraint. The Chief Justice's comments, in a speech on pluralism Thursday night, was a step into that fray.
Already, aboriginal groups say they will invoke the statement as they press their cause in a variety of ways. "The fact that the highest justice of Canada's highest court is affirming this reality [of cultural genocide] is so tremendously powerful," National Chief Perry Bellegarde of the Assembly of First Nations, which represents the country's elected chiefs, said in a statement Friday. Chief Justice McLachlin's recognition "must inform the approach to policy making, law making and reconciliation" in Canada.
David Rosenberg, a Vancouver lawyer who represented the Tsilhqot'in band of British Columbia in its landmark victory at the Supreme Court last year, said in an interview that he would raise the Chief Justice's statement in court only in response to Crown arguments "about fair treatment, if it tries to justify what happened. But I wouldn't raise it first."
A former chief executive officer with the Canadian Jewish Congress says this country committed genocide, not merely cultural genocide. Among other things, Bernie Farber cites the work of University of Regina professor James Daschuk, who published a 2013 book, Clearing the Plains: Disease, Politics of Starvation and the Loss of Aboriginal Life, asserting that prime minister John A. Macdonald had a deliberate policy of starving the Plains Indians. The book won the an award named after Macdonald from the Canadian Historical Association.
"I say this as a child of Holocaust survivors," Mr. Farber said in an interview. "My father was the only Jewish survivor of his village. I was brought up in that shadow and I understand what that pain is all about." Those who tell aboriginals to "move on" do not understand that, "until you confront it and admit it, you can't even start to heal. And we're not even there yet."
Jim Miller, a professor emeritus of history at the University of Saskatchewan, said that Canada did not commit genocide – "we relied on aboriginal people for too many things" – and Macdonald did not attempt to eradicate the Plains Indians. But in the 1870s and 1880s, the government did "use food as a weapon. They deliberately cut back rations from those who were holdouts to treaties." And people died as a result.
He said Chief Justice McLachlin's use of the term "cultural genocide" is accurate, and a turning point for Canada. "It gives a seal of approval and endorsement from a very senior, prominent, respected figure in public life in Canada to an interpretation of Canadian history that many people have resisted until now. We've had a kind of rosy picture of ourselves, mainly by contrasting ourselves with the Americans who followed military policies toward Western First Nations in the late 19th century. We've all convinced ourselves as a people that our handling of aboriginal affairs was much better, perhaps even beneficent."
He called her comments entirely appropriate. "She didn't make partisan comments. She didn't comment on contemporary government policy. And she was in a position to speak authoritatively, having spent months and years working on the history of cases like Delgamuukw or the recent Tsilhqot'in decision."
The Chief Justice's speech was troubling for Emmett Macfarlane, a political science professor at the University of Waterloo. "What troubles me a little bit is that she and the court will continue to face cases where that historical perspective is deeply relevant to indigenous rights and land title claims." He said the legal community is deferential to Chief Justice McLachlin to the point of "hero worship," and unlikely to criticize her.
Gerald Chipeur, a Calgary constitutional lawyer, said Chief Justice McLachlin's comments were not controversial but a reflection of widely accepted fact, implicitly acknowledged by Prime Minister Stephen Harper in his 2008 apology to aboriginal peoples for the abuses of the residential schools.
Phil Fontaine, a former national chief, said the Chief Justice's assertion is "a very clear signal to government in all jurisdictions that indigenous people face unique challenges, and that governments have to be more responsive to meet those challenges. She's also calling out to Canadians that what is needed is a greater effort in terms of education and information about our place in Canada."