Restorative Justice for the Disappearance and Murder of Indigenous Women and Girls in Canada

The Government in Canada has embarked on a path of no return, exemplary, hard, full of regret, but a symbol of hope, even for all humanity. Institutionally, a truth commission was created to carry out a National Investigation on Missing and Murdered Indigenous Women and Girls. It is not the first continental effort to arrive at historical clarifications about crimes of the past, in which the national government has been involved. Argentina, Chile, El Salvador, Guatemala, Peru, Bolivia, Brazil, and Paraguay have tried similar exercises, primarily referring to the events arising from past dirty wars in those countries. The derivation of conclusions of these commissions’ national reports to processes that comply with the mandate of the United Nations on the construction of the historical truth (Construction of the Truth, Deliver Justice—with sanctions against those responsible—Repair of the Damage and Guarantee of the No Repetition), has been one of the main failures in the effectiveness of these commissions.

In those countries that first followed this path, the personal connections of the commissioners, the strong institutional ties of dependence on the government, as well as the solid presence of the alleged perpetrators of past crimes—to varying degrees—in the governmental sphere, were insurmountable obstacles to be able to reach processes of arrival to the historical truth, the delivery of justice, and national reconciliation. The nation-state ended up subject to the will of each elected government.

In this new Canadian exercise, however, there are different axis and notable distinctions: 3 of the 4 commissioners are part of the First Nations (indigenous populations) of Canada. As a necessary part of the research, they made an explicit derivation to “First Nations, Inuit, Métis, women, girls, and people Two Spirits LGBTQQIA ” recognizing the primary prejudice that acted historically against those fragmented sections of the population.

The commission recognizes intrinsic values in the course of the investigation, as well as serious racial prejudices, colonialism, forced Christianization, gender discrimination and violence, as well as the express recognition of certain genocidal intentionality—the elimination of a group or nation, with ends in extinction—in the systematic violence against girls, women, Two Spirits and First Nations, Inuit and Métis people. It recognizes the historical, multi-generational and intergenerational trauma, the process of economic and social marginalization, the lack of political will of the governments to solve the above, as well as a systemic and intentional omission of the experience and assistance of women and Two Spirits LGBTQQIA people. The report defines structural violence as the product of a generalized whole, a social relationship between white people and First Nations people based on discrimination, colonialism, prejudice, racism, and the desire for elimination. This violence was reinforced in women, girls, and Two Spirits LGBTQQIA.

The report explains that the breaking of community dynamics, by ripping women out of populations, not only caused trauma in families but, because of the matrilineal cultural construction of many of the First Nations, it caused deep ruptures in the social fabric of the community. The distinctive image of women as negotiators and providers of solutions, as well as the necessary presence of the Two Spirits people to provide spiritual balance to the community, are key to understanding the cultural and even legal breakdown—many are linked to the legal systems of First Nations—which meant losing these social actors in community social life. Women and Two Spirits are recognized as: Teachers (the first teachers, the most important), Leaders, Healers (who heal body, mind, emotions, and spirit), Providers and Protectors of the earth, the territory, the water, and the community. Because of the very cultural complexity of the First Nations legality—which is part of national law in Canada—it recognizes that there is not a single possible solution to this crisis. Additionally, it concludes that colonial violence and patriarchal culture have created the conditions for the current crisis.

The report states that the media have contributed—with indifference, racism, prejudice, manipulation, and unfair treatment to the victims and their families—a serious precedent in the naturalization and invisibility of these forms of social violence. The lack of culturally appropriate attention to the health of the victims is made explicit, accusing them of negligence, prejudice, racism on the part of health institutions when it comes to caring for the families of women, girls, Two Spirits LGBTQQIA, disappeared and murdered.

A key component of the report is the documentation of the violation of the human right to safety and security, even psychological, which also becomes a violation of Canadian constitutional regulations. It is recognized within the various police forces (responsible for investigating and impeding the phenomenon of violence, killings, and the disappearance of women) as a source of permanent mistrust, often recognized as victimizers, violent and indifferent actors in this tragedy, that has generated a break in the trust by the First Nations and the families of the victims. Essentially, the police are seen as an indifferent entity in the face of violence against ethnic groups, women, girls, and sexual diversities.

Processes of Community Healing and Restorative Justice Driven by the Report

So far, everything seems similar to the situations experienced by other peoples, violence, prejudice, genocidal intention, institutional indifference, re-victimization of the victims. But, in fact, this truth commission—the National Inquiry—established an impressive Aftercare Program with accessible, personalized attention to families, in a culturally appropriate way, to help the healing process, with personalized plans, depending on the family’s need, including budget costs to carry it out in each individual case. Services such as healing programs on earth, counseling, commemoration ceremonies, travel costs, and many other requests were included. This process of restorative justice included in the ongoing process of a truth commission has no precedent.

Likewise, the truth commission established alliances with universities in different cities, and four national dialogues were established to identify best ways to solve problems, identify best practices, improve and safeguard the welfare of indigenous women, girls, Two Spirits LGBTQQIA. In these dialogues, the country was confronted with its discriminating, colonialist, and segregationist reality towards the First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA. In the dialogues, the systemic weaknesses of the state were identified to deal with cases of violence, in health, economy, justice, and security. For each of the issues, weaknesses, and lack of attention, solutions were proposed, culturally appropriate, respectful of the ancestral heritage of the First Nations. A great contribution is recognized in the construction of bridges of national understanding.

In the Call for Justice, it is established that a permanent commitment to end genocide requires addressing the four pathways explored in the report: Historical, multigenerational and intergenerational trauma; Social and economic marginalization; Maintaining the status quo and the lack of institutional will; and Ignoring the agency and experience of indigenous women, girls and the people of Two Spirits LGBTQQIA. The report issues more than recommendations, Calls for Justice, as legal imperatives. These Calls for Justice represent important ways to end genocide and transform the systemic and social values that have maintained colonial violence. Calls for Justice are not just institutions or governments with obligations to fulfill, but the report demands a leading role for all in the short and long term.

It establishes Principles for Change, through restorative measures of rights for individuals, obligations for the State, and all levels of the government. A relevant measure is the principle of “Substantive Equality” a basic proposal in the deconstruction of colonization, inequality, discrimination, historical disadvantages, intergenerational traumas, in order to reduce gaps and provide general welfare. The Call to Justice includes a process at all levels of decolonization of the government, including in indigenous governments. This approach honors and respects indigenous values, philosophies and knowledge systems, and is based on strengths, focused on the resilience and experience of individuals and communities. In the Calls for Justice, the concept of family is included, which includes all forms of family kinship, including, among others, biological families, families chosen, and families of the heart.

The Solutions and Services must be Self-determined and Directed by Indigenous People. This, in effect, eliminates the need for indigenous communities and governments to “ask permission” from state and national governments for actions taken by the indigenous government. The right to self-identification, ethnic, geographical, residence, and even generic is recognized. Implementation of cultural security is determined, for which it establishes the creation of the inclusion of indigenous languages, laws and protocols, governability, spirituality, and religion. There is a Trauma-Informed Approach, with attention to victims, families, communities, and society, which must be guaranteed with governmental measures, budgets to make it viable, and eventually eliminate the concept of genocide and colonization.

A National Action Plan has been designed, in which a Call for Justice is made so that all governments guarantee equitable access to basic rights such as employment, housing, education, security, and health care. They recognize it as a fundamental means to protect indigenous rights and human rights and are resorted to and supported as rights-based programs based on substantive equality. There is a Call for Justice for Indigenous Culture to be recognized, respected, included, promoted, including language, ancestral knowledge, empowerment, all financed by the nation-state. Also, an Urgent Call for Justice is issued to educate segments of the white population to prevent hatred, discrimination, and cultural deconstruction of the conditions that allowed the genocide in Canada.

Health and Wellbeing are strongly included in these Calls. Justice is a special chapter since it establishes the elimination of colonialist definitions and concepts in the law that minimize the aggressor’s guilt. It is proposed to use the gender perspective for the design of new inclusive legal norms, as well as indigenous cultural tools that incorporate an adequate perspective, including First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA. It is recommended the creation of a strong indigenous civil police force, which could be the first line of territorial attention, composed of First Nations, Inuit, Métis, women, Two Spirits LGBTQQIA.

It proposes an alliance with industries, companies, and the media, to incorporate the indigenous perspective in its narrative, offering training scholarships to communities, to train journalists and communicators First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA. Courts and law firms must have culturally appropriate attention, as well as give attention to users, victims, and people in their native languages. The education system must establish a training program at all levels that explains and teaches the genocide, the murder, and disappearance of First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA to prevent it from happening again. This involves reconstructing the history teaching curriculum in schools at all levels. The extractive and development industries must include preventive measures of violence against First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA.

There are also Calls for Justice for First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA, who must break with the culture of colonization, respect and include, educate, integrate and promote best practices that guarantee the life and safety of their members, with budgetary, financial and logistical support from the Nation State.

There is, in general, in the report’s previous work, its construction and final presentation of the collective work, an intention of the Canadian National State to change. Budgetary allocations, actions are taken before, during, and after the report are aimed at finding solutions. It is not ideal, it is not the best, but it is authentic, honest and tries to solve the problems that gave rise to the serious problem of the disappearance, murder, and segregation of tens of thousands of First Nations, Inuit, Métis, women, girls, Two Spirits LGBTQQIA.

“For decades, indigenous Canadian women and girls have suffered disappearances and murders, and our justice system has failed,” said the Prime Minister. “Unfortunately, it’s not just a matter of the past, it’s shameful and absolutely unacceptable – this must stop,” said Justin Trudeau, Prime Minister of Canada in the presentation of the Final Report. This kind of work always begins on a cruel and irremediable basis: the death and physical disappearance of loved ones. The construction of this report, its political intentionality, its demonstrated effectiveness in the facts, and its cultural depth, leave us before a monumental work of the commission of truth in Canada, which has cemented a different path already for that country in an appropriate route to create real solutions and prevent the continuity of the phenomenon. If accomplished, here we can see the light at the end of the tunnel.

* Pável Uranga was Leading Historical Researcher of the Special Prosecutor for Social and Political Movements of the Past. Attorney General of the Republic., is an expert in gender violence, co-founder of the National Citizen of Feminicide in Mexico, expert of Trafficking in three countries different, author of “Sexual trafficking before the mirror report: An approach to sexual exploitation in slave labor, Ecuador. Northern Border”, in 2012.