[Editor’s Note: This is the fourth entry in our symposium on “The Legacy of Chief Justice Beverley McLachlin.” We are grateful to our six symposium participants for their contributions to this special series of reflections on Canada’s retiring Chief Justice. The introduction to our symposium is available here. Part I of our symposium is available here, Part II is available here and Part III is available here.]
—Jenna Sapiano, Associate Fellow, Centre for Global Constitutionalism, University of St. Andrews
In her May 2015 address at the Global Centre for Pluralism’s annual lecture, Chief Justice Beverley McLachlin acknowledged that the “most glaring blemish on the Canadian historic record relates to our treatment of the First Nations that lived here at the time of colonization”. The Chief Justice described this treatment as “cultural genocide”. The admission that Indigenous peoples were the victims of cultural genocide by the sitting Chief Justice of the Supreme Court of Canada has real and potential capacity to affect reconciliation and forgiveness between Canada’s Indigenous and non-Indigenous peoples.
In June that year, the Truth and Reconciliation Commission (TRC) released their final report on the residential school system. The report documented the testimony of survivors (and the families of survivors) of residential schools. The TRC took seriously the individual and collective structural, cultural and physical harm and violence that has been done to the Indigenous peoples, also recognising this as amounting to “cultural genocide”.
Although cultural genocide has no codified meaning in international law, it has historical traction as a (legal) concept. Raphael Lemkin, who defined the concept of genocide, argued for its inclusion in the 1948 Genocide Convention. The concept was again considered, and rejected, in the drafting of the UN Declaration on the Rights of Indigenous Peoples. Yet, as reflected in the report of the TRC and in the Chief Justice’s speech, it best describes the harm and violence committed against Indigenous communities.
Section 35 and Reconciliation
Indigenous rights were constitutionalised in Canada’s Charter of Rights and Freedoms (1982) in s. 35(1). The Supreme Court has interpreted these Charter rights as located in cultural, rather than political, nationhood, thus limiting the full expression of sovereignty. Moreover, the Court has also recognised that the purpose of s. 35(1) is reconciliation.
This progression of Indigenous rights claims, and processes of reconciliation have largely been the result of movements and legal appeals made by Indigenous peoples. This includes the class action lawsuit launched by the Assembly of First Nations on behalf of the survivors (and family members of the survivors) of residential schools in August 2005. The resulting out-of-court settlement in May 2006 included the agreement to set up the Truth and Reconciliation Commission.
While acknowledging that the Canadian Government has committed to reconciliation, James Anaya, the UN Special Rapporteur on the rights of indigenous people, reported in 2014 that “indigenous leaders have expressed concern that progress towards this goal has been undermined by actions of the [Canadian] Government that limit or ignore the input of indigenous governments and representatives in various decisions that concern them”.
Canada’s Transitional Justice Process and Language of Recognition
How has the use of the term “cultural genocide” by the Chief Justice and the TRC impacted Canada’s real or hoped-for reconciliation process? Transitional justice, as a concept and tool, is not easily applied to settler states. It is a process that is normally attached to the (re)building of the post-conflict state. Canada, having recently celebrated its 150th anniversary, does not need to be strengthened, rather it needs to be challenged. The structural harm and violence that was caused by colonialization “endures beyond the moment of violation, shaping and constraining the conditions of life experienced”. Still, these mechanisms can be used to bring the past into the present, to accept and repair the material and discursive structural inequality that exists in Canada.
The acknowledgement of “cultural genocide” is a recognition of the violence and harm that was, and continues to be, directed against Canada’s Indigenous peoples. Although the capacity for public apologies or recognition to facilitate real healing and reconciliation is hard to isolate, language and recognition have power.
This statement from Chief Justice McLachlin might be a proverbial “pat on the back” to mark “progress”, rather than a genuine effort to change the discourse of the Government`s responsibility and culpability towards Canada’s Indigenous peoples. However, her statement of this harm may be one of her most lasting legacies after her retirement this December. Although her public use of the term “cultural genocide” was not an act that she took from her esteemed position on the bench, as a person of authority in Canadian politics and law her words can have a performative impact on the process of reconciliation.
Suggested Citation: Jenna Sapiano, I-CONnect Symposium on The Legacy of Chief Justice Beverley McLachlin–Part IV: Reconciliation and Recognition after “Cultural Genocide”: Beverley McLachlin’s Use of Language, Int’l J. Const. L. Blog, Dec. 7, 2017, at: http://www.iconnectblog.com/2017/12/sapiano-on-Chief-Justice-McLachlin
 The full TRC report is available on their website (http://nctr.ca/assets/reports/Calls_to_Action_English2.pdf).
 For more on the concept cultural genocide in international law see E Novic, The Concept of Cultural Genocide: An International Law Perspective (OUP, 2016).
 ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s.35.
 R v Van der Peet,  2 SCR 507 at para. 31. See also Delgamuukw v British Columbia,  3 SCR 1010 at para 137; Taku River Tlingit First Nations v British Columbia (Project Assessment Director), 2004 SCC 74,  3 SCR 550 at para 42; and Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73,  3 SCR 511 at para 20. Patrick Macklem argues that reconciliation can “only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties, and sovereignty in robust terms.”. P Macklem, ‘The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation’ in P Oliver, P Macklem, and N Des Rosiers. eds., The Oxford Handbook of the Canadian Constitution (OUP, 2017), 326.
 Larry Philip Fontaine et al. v. The Attorney General of Canada, Ontario Court File No. 05-CV-294716 CP (issued August 5, 2005)
 Canada only fully endorsed the UN Declaration on the Rights of Indigenous People in 2016. Canada was one of four countries to vote against the Declaration in the UN General Assembly in 2007. The Conservative government issued statement of support for the Declaration in which it made clear it was not legally binding (https://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142).
 As John Borrows writes: “Colonialism is not only a historic fact of Canadian life – it is a present distressing reality” (J Borrows, Freedom and Indigenous Constitutionalism (UofT Press, 2016), 107.
 J Balint, J Evans and N McMillian, “Rethinking Transitional Justice, Redressing Indigenous Harm,” 8 International Journal of Transitional Justice 194-216 (2014), 199 (who point out the challenges of using transitional justice tools in settler colonial states) See also Courtney Jung who discusses the challenges of using transitional justice mechanism in the context of human rights violations against Indigenous communities. The potential in using transitional justice mechanisms is that by engaging in a language of individual human, the recognition of structural collective harms and violence can be neglected, C Jung, ‘Walls and Bridges: Competing Agendas in Transitional Justice’ in P Macklen and D Sanderson, From Recognistion to Reconciliation (UofT Press, 2016).
 Prime Minister Harper made a public apology in 2008 (http://www.cbc.ca/news/canada/prime-minister-stephen-harper-s-statement-of-apology-1.734250).
 See a series of blog posts on Canada and Indigenous rights on its 150th anniversary, (www.cigionline.org/articles/why-reconciliation-means-recognizing-indigenous-law). See also P Oliver’s post on Blog of the IACL, AIDC (https://iacl-aidc-blog.org/2017/11/02/canada-150/).