Tansi Nîtôtemtik,
The middle of winter term is always a stressful but exciting time for law students. 1Ls are nervously putting on robes for their first time as they await arguing in front of a panel of judges, while upper years travel all across Canada to bravely participate in national moot court competitions. The University of Alberta has already taken home a number of trophies, including the Bowman National Tax Moot, the Wilson Moot, and the Gale Cup Moot. This past weekend, four students and their coaches travelled to McGill University in Montreal to participate in the Kawaskimhon National Aboriginal Moot.
Kawaskimhon, a Cree word meaning “speaking with knowledge”, takes a format that is unique from the other moots. While most moots take place in a courtroom, the Kawaskimhon takes a non-competitive format. Each school sends two to six students to represent a specific party. Each party was then separated into pairs or trios and sent to a table, hoping to find the best outcome for their party by entering negotiations over three days.
This year, the problem centered on a problem that is very real to the Mohawks (Kanien’kehá:ka) of Kanehsatà:ke, an Indigenous group that has populated Quebec since time immemorial. The Kanien’kehá:ka have traditionally occupied and used the area near the St. Lawrence and Ottawa Rivers, but it was granted to Catholic Sulpicians in 1717 by King Louis XIV, despite persistent protests by the Kanien’kehá:ka. Most of this land was eventually sold to private sellers and the Municipality of Oka was created in 1867. The remaining 20 parcels of land were purchased by the Federal Government and set aside as “Indian lands” under s 91(24) of the Constitution, but not designated as reserves. The Mohawks continued to occupy the land and in 1975 filed a joint comprehensive claim (title claim) with two other Mohawk groups. This was rejected on the grounds that the title had been extinguished through the original grants and through third party sales. Another specific claim was filed in 1977. In 1990, the municipality proposed to expand a golf course and build sixty condominiums in a scared forest that includes Mohawk burial sites. This lead to a 78 day armed standoff between the Mohawks and the police and army. The municipality abandoned their development plans and the Federal Government purchased the lands instead. The Federal Government created the Kanesatake Interim Land Base Governance Act in 2001 and set aside these lands for use by the Mohawks of Kanehsatà:ke under section 91(24).
Today, the tensions continue to build as the Mohawks assert that the land was not legally ceded and they have an inherent right to the land and cultural artifacts that have been discovered. Of particular tension is a provincial park, Parc National d’Oka, where the public can go to dig and thousands of archaeological sites and items have been found. A person may take any item that they excavate, which of course is very alarming when these objects once belonged to the people of Kanehsatà:ke. The Government of Quebec asserts their rights over these objects, as do the Kanehsatà:ke, and the Municipality has sold the private lands in which artifacts were discovered. Adding another layer of complication is the creation of the Mohawk Council of Kanehsatà:ke (MCK) in 1991, which is recognized as a band council and therefore given authority over the Mohawks of Kanehsatà:ke, according to the Indian Act. Prior to the creation of the MCK, the “Great People of the Law” was recognized as the traditional governing body by the people of Kanehsatà:ke. A tension existed as both the MCK and the Great People of the Law seek to be seen as the legitimate authority of the people of Kanehsatà:ke.
Participants were required to consider a number of legal issues including land claims, title issues, burial sites, cultural artifacts, municipal bylaws, the Quebec Civil Code, Provincial-Crown lands, and federal lands under s 91(24). The University of Alberta represented the Federal Government. Needless to say, three days was not nearly enough to sufficiently deal with a complex problem that has existed for decades. Participants at all tables, however, were up to the task and came to framework agreements that would hypothetically lead Canada, Quebec, and the municipality towards reconciliation with the people of Kanehsatà:ke. It will be interesting how this problem actually develops and if a step towards reconciliation is met by the real parties.
Congratulations to the Kawaskimhon team for all the hard work they put into representing the University of Alberta Faculty of Law! Congratulations to all other students who participated in a moot and good luck to the 1Ls who will be entering the courtroom soon!
Until next time,
Team ReconciliAction YEG
- - - - - - - - - - - - - - - - - - - - - - -
Join the conversation by following us on Twitter: @ReconciliYEG; Facebook: www.facebook.com/reconciliActionYEG/; and Instagram: @reconciliactionyeg.
To receive daily alerts to our blog, email the words "add me" to reconciliactionyeg@gmail.com.
