Twenty years after launching the Kawaskimhon Aboriginal Moot, Jean Teillet, LLB 1994, LLM 2008 is still working on her 'roses'
By Jean Teillet, Partner, Pape Salter Teillet LLP
Photography by Michelle Yee
From the Spring/Summer 2014 issue of Nexus
One of the things that I have adopted is the idea of giving roses. Wherever I go, whatever institution I’m in, wherever I am, I believe that one should give back. I think of it as gifting roses. I did that when I was a law student. I decided that I'd give a rose to the school every year.
When I first came into the law school, I saw the big brass plaque that was hanging in the lower rotunda of Flavelle Hall, which contained several quotes from the Torah. One of the lines was something like 'There shall be one law for you and the stranger among you.' I remember seeing that on the very first day of law school and thinking, ‘That's not right. That's not what Aboriginal people think about law.’
I also have a fine arts background, so I'm a big believer in symbols. I started talking to the other Aboriginal law students about putting another symbol up in the law school to show that there is another way to look at this.
We arranged for the belt keeper from the Haudenosaunee, which is what most people know as Six Nations, to come up and talk to us about the Two Row Wampum belt. This is an Aboriginal symbol of two legal systems working side by side. We asked him whether we could create a replica belt and hang it in the law school and he thought it was a wonderful idea.
I did the beading of the belt. Another student, Marty Bayer, brought the hawk feathers and the birch bark frame and deer skin hide from Manitoulin Island. We gave it in a ceremony to the law school dean at the time, now Justice Robert Sharpe. That was the first rose.
The second year, we were trying to communicate with other law schools and the Indigenous Bar Association, and I decided that the Native Law Students Association needed a logo and letterhead. I designed the graphic, the one with the turtle, now morphed into the new logo you see today. I went to a friend of mine, who is a graphic artist, and had letterhead made and somewhere in the depths of U of T, there must still be NLSA letterhead. That was the second rose.
The third rose was the Aboriginal Moot. There was a lot of Aboriginal law cooking in the courts at that time. The first section 35 of the Constitution Act case had just come down in the year before I got to law school, so it was a hot topic.
I thought it would be wonderful to hold a moot that was about Aboriginal law. I went to the Indigenous Bar Association and start asking all the lawyers what we could do. They answered to the effect of ‘Oh, yeah, we’ve tried. But there’s no funding.’ I wasn’t the only one who had come up with the idea, but no one had made it happen.
I walked into Dean Sharpe's office to make an appointment for later in the day. I bumped into a friend of mine, who was another Aboriginal student, Denise Lightning, and corralled her into coming with me to see the dean. I told her what I was going to do and she said: ‘Well, I'll come and sit there, anyway.’ I walked in and went off on this big long spiel, trying to think in my head how to convince him. He caved instantly. It was not a hard sell. He just said ‘OK, I think it's a great idea.’ I was surprised because I thought that would be a lot harder to convince the dean.
The first case we did was Delgamuukw v. British Columbia, [1997], which was a big Aboriginal land title case. At that time, it had just come down from the BC Court of Appeal, had been granted leave to appeal by the Supreme Court of Canada, but it hadn't been argued there yet. Everyone agreed that it was a good case to argue, so that became the first case argued at the inaugural Kawaskimhon Moot.
Patrick Macklem was wonderful and Kent Roach helped us out as well. I thought that the faculty generally were incredibly supportive.
The first thing that a non-Aboriginal student would learn if he or she participated in the Kawaskimhon Moot is that these are a big, complicated legal issues that go to the very heart of the constitutional framework of our country because Aboriginal titles and Aboriginal rights issues are part of the compact of Confederation.
How do you move forward as a society and include all those complex Aboriginal issues? I think it's a surprise for students, and they see that this is much more complicated than they may have previously thought. It's also not just about the Aboriginal people. It's about the intersection of two societies and two legal systems, and the original inhabitants of this continent. So I hope non-Aboriginal students gain a good appreciation of Indigenous issues out of the Kawaskimhon Moot.
I love working with students. They are always really fascinating to watch because in a lot of ways, a moot makes you punch above your weight. You're a still a student, you’ve never argued anything, and drafting a factum is really pushing your skill level.
I'm always fascinated to watch how they do it, especially the students who seem so quiet and shy and then stand up and argue so beautifully. It also gives me a chance to head them off at the pass sometimes, too, to say ‘Don't ever do that. Do not ever do that again. I'm not criticizing; I know why you did it and lots of lawyers try and do it but judges hate it. Don't do it.’ It’s better to make these mistakes in an educational setting than in court.
I don't like the “First” part in First Nation, although it's not very political to say that. I object to it because it really undermines the Inuit. Why are the First Nations first and the Inuit aren't? I know why they are doing it. They're trying to establish a priority claim over the rest of Canada, but I don't think that it is really very helpful.
We have more than 50 Aboriginal peoples in this country from coast to coast to coast, and they are vastly different in the same way that Russians are different from Italians and they're different from the Germans and they're all different from the Welsh. They are completely different from each other.
The Métis Nation is just one of those people, primarily located from the upper Great Lakes and stretching west to the Rocky Mountains. So not down here in the Toronto area, but north and around. Just follow the fur trade routes. That's where they started and that's where they are still today.
I think we're at a cusp for change, given what's going on in Aboriginal communities in this country. I'm on the board of what used to be called the National Aboriginal Achievement Foundation. We call it Indspire now, but the foundation is about Aboriginal kids in education, and I'm seeing a huge change across the country in the numbers of kids graduating from high school. I'm not saying that there aren't bad pockets out there still, but the problem is the bulk of Canadians are seeing those bad pockets as what all Aboriginal people are like, and it's not. There are a few sad and sorry places, that's very true, but the majority are not living in that way anymore. They are changing.
The Métis Nation is in the news on the prairies almost on a daily basis. I was surprised to the reaction to Powley [2003]. We actually made the front page of the newspapers in Toronto, in the Toronto Star. The case was about moose hunting [without a licence]. I mean really, who cares in Toronto? Most people in Toronto have never even seen a moose. I was shocked that it got in the press at all, but it was a big story. I really was astonished by the reaction.
I was delighted that it was a unanimous decision. It actually had unanimity of judges all the way up, from the trial judge to the Superior Court judge, to the Court of Appeal, to the Supreme Court of Canada. Not a single dissenting judge all the way up on that case. It's still the foundational case and it has proved to be a pretty good foundation. It’s great that it came out of Ontario because if it had come out of the prairies, Ontario would have carried on with its old idea that there are no Métis people here, which is what they argued all the way up.
But Ontario couldn't say that anymore so it's fundamentally changed the way government, federal and provincial, deal with Métis people in Ontario. We always like to joke and say that before Powley, we couldn't even get the janitor to talk to us in government. That’s an exaggeration, but not much of one.
We had a big decision just recently that came down in April from the Federal Court of Appeal. That was the Daniels case. They have now sought leave to appeal from the Supreme Court of Canada. I think it will be granted leave, but we don’t know yet.
The question was whether Métis and non-status Indians are a federal responsibility or not. In other words, did they come within section 91 (24) of the Constitution? Section 91(24) is the head of power that says ‘Indians, and Lands reserved for Indians’. So the question is who's an Indian, for the purpose of federal jurisdiction?
The trial judge said both Métis and non-status Indians were within 91(24) and we didn't disagree with his finding but he tried to define Métis in a completely illogical way that would just create chaos. So I did intervene at the Federal Court of Appeal on behalf of the Métis Nation of Ontario. The Court of Appeal agreed that the Métis are federal jurisdiction. That’s good. They also clarified the Métis definition problem. That was good for the Métis, but they said they weren't going to make any findings with respect to non-status Indians. They said the very idea of a non-status Indian was too vague, too broad for them to deal with. The problem is that it's a negative definition, which is unhelpful because essentially, every Canadian is a non-status Indian. That will be one of the issues on appeal. Also I think the federal government will object to any addition to their responsibilities, which they have been denying since the 1980s. It's an important decision because currently we have what we might call jurisdictional football, or ‘hot potato’— which is a continuation of ‘We don't have them, you have them. Oh, no, you have them.’ You get the picture.
I think the end goal is a healthy space for Aboriginal people in this society where they are recognized, respected and honoured as a people, as the founding peoples of this country. And where there are opportunities for them to grow and become productive, healthy, participating members of society. Right now we still have to get over the residential school legacy, which is ironic, because we generally use legacy to mean a good thing.
I think it's going to take another generation or two before the residential school legacy is fully over…I also believe very firmly that the remedy is self-government. We've been making decisions for Aboriginal people for hundreds of years and every time we make a decision about what we think is the right thing to do, we're wrong. They have to make their own decisions and be responsible for themselves and their own people. It's the only way.
