Closing the cultural rights gap in transitional justice: Developments from Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls
| Author | Colin Luoma |
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| DOI | 10.1177/0924051921992747 |
| Subject Matter | Articles |
Article
Closing the cultural rights
gap in transitional justice:
Developments from
Canada’s National Inquiry
into Missing and Murdered
Indigenous Women and
Girls
Colin Luoma
Doctoral Researcher, Brunel Law School, Brunel University, London, UK
Abstract
Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls (the ‘MMIWG
Inquiry’) is the latest truth-seeking body to grapple with legacies of violence against indigenous
peoples in settler colonial states. While the name, Missing and Murdered, ostensibly limits its scope
of application to bodily integrity crimes, the MMIWG Inquiry instead embraced an expansive
understanding of violence to encompass gross violations of indigenous cultural rights and cultural
harm more generally. This article argues that this holistic approach represents a stark departure
from mainstream transitional justice models which have overwhelmingly prioritised the redress of
a limited set of civil and political rights violations, while neglecting the underlying structural vio-
lence and cultural harm that permeates divided societies. This article advances a case to under-
stand the MMIWG Inquiry as a transitional justice mechanism and draws upon its Final Report to
analyse how truth commissions can engage with cultural rights violations in more meaningful ways.
By directly and robustly accounting for indigenous cultural harm, the MMIWG Inquiry challenged
the conventional parameters of the field and demonstrated the opportunity and utility of
addressing cultural rights violations through a transitional justice framework.
Keywords
Transitional justice, cultural rights, indigenous peoples, truth commissions, missing and murdered
indigenous women and girls
Corresponding author:
Colin Luoma, Doctoral Researcher, Brunel Law School, 8 Kingston Ln, Uxbridge, UB8 3PH, Brunel University, London, UK.
E-mail: Colin.Luoma@brunel.ac.uk
Netherlands Quarterly of Human Rights
2021, Vol. 39(1) 30–52
ªThe Author(s) 2021
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DOI: 10.1177/0924051921992747
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1. INTRODUCTION
On 3 June 2019, Canada’s National Inquiry into Missing and Murdered Indigenous Women and
Girls (the ‘MMIWG Inquiry’) published its Final Report (the ‘Final Report’), documenting the
devasting and disproportionate levels of violence levied against indigenous women, girls, and
2SLGBTQQIA (‘two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and
asexual’) individuals.
1
In a historic finding, the MMIWG Inquiry determined that this systemic
violence amounts to an ongoing, race-based genocide against indigenous peoples, one that spe-
cifically targets women, girls, and 2SLGBTQQIA individuals. While this genocide conclusion is at
the core of the Final Report, the propriety of which has spurred considerable public debate, it also
overshadowed another key contribution of the MMIWG Inquiry, namely its unprecedented
engagement with cultural rights violations, and cultural harm more generally, through a mechan-
ism of transitional justice.
2
Undeniably, the MMIWG Inquiry was triggered by endemic physical violence against indigen-
ous women and girls. Notwithstanding, its broad mandate and holistic approach empowered it to
move beyond a singular focus on bodily integrity violations, and towards a richer and more
accurate accounting of the full range of harm expe rienced by indigenous peoples in Canada,
including pervasive violations of their cultural rights under international law. In the context of
indigenous peoples, these violations manifest themselves in various ways, including:
the seizure of tradition al lands, expropriation and commercial use of Indigenous cultural obje cts
without permission by indigenous communities, misinterpretation of indigenous histories, mythologies
and cultures, suppression of their languages and religions, and even the forcible removal of Indigenous
peoples from their families and denial of their indigenous identity.
3
Not only do these attacks on culture fuel forms of physical violence, but as the MMIWG Inquiry
rightly recognised, they also work to destroy the basic social fabric of indigenous society, creating
multigenerational, structural injustices that weaken indigenous sovereignty and identity.
4
The MMIWG Inquiry’s progressive approach can be directly juxtaposed against the historic
marginalisation of cultural rights in the field of transitional justice. Transitional justice, the inter-
nationally endorsed set of practices and principles designed to address mass violence and large-
scale human rights abuses, has largely neglected cultural rights violations in both its discourse and
praxis. Adhering to conventional approaches rooted in Western liberalism, the field has tradition-
ally prioritised the legal redress of a narrow set of civil and political rights violations , while
overlooking many of the underlying harms embedded in transitional societies, including large-
scale and ongoing violations of cultural rights. Even as transitional justice has expanded its
conceptual boundaries to begin encompassing a broader scope of harm, cultural rights remain
on the outermost peripheries. Indeed, commentators consistently challenge the omission of the
economic, social and cultural (‘ESC’) category of rights, yet give no independent consideration to
1. National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final
Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. (2019).
2. The phrase ‘cultural harm’ is used in this article to encapsulate the broad spectrum of attacks on the cultures, cultural
practices, traditions, languages and cultural identities of individuals and/or groups.
3. AlexandraXanthaki, ‘Indigenous Cultural Rights in International Law’ (2000) 2 European Journal of Law Reform 343,
343.
4. MMIWG Inquiry, The Final Report (n 1) 327–408.
Luoma 31
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