Ontario’s resource riches in the northern Ring of Fire region (500 kilometres northeast of Thunder Bay) was the background to the recent Kawaskimhon Aboriginal Moot. Celebrating its 20th anniversary this year, the moot was hosted at the University of Toronto Faculty of Law, where it all started back in 1994. Law students, academics, Aboriginal elders, and lawyers working, studying and/or interested in Aboriginal law issues participated in the three-day event.
Kawaskimhon, Cree for “speaking with knowledge,” differs from traditional moots because it focuses on consensus, and incorporates Indigenous values and dispute resolution.
As the Ontario government was negotiating with First Nations for the development framework in the Ring of Fire, North America’s largest known deposit of chromite (a key ingredient in stainless steel), teams from law schools across Canada were setting up at the Faculty of Law to tackle a similar issue: representing various First Nation parties, the province, and a resource company, their goal was to enter into an Impact Benefit Agreement.
This year's problem was unique as teams were given confidential mandates with actual dollar figure goals from their client, and all parties were instructed to negotiate within these baselines. The parties were split into three negotiation tables led by volunteer facilitators Grant Wedge (’86), executive director, Strategic Policy, Communications and Corporate Relations, Law Society of Upper Canada; Maggie Wente (’02), partner, Olthuis Kleer Townshend; and Scott Robertson, associate at Nahwegahbow, Corbiere.
Negotiation table
“The students passionately and knowledgeably negotiated on behalf of their clients, and by the close of negotiations two and half days later one team was able to reach an agreement,” said Lisa Del Col, coordinator for the Aboriginal Law Program. “The other tables came incredibly close to a deal in the time allotted.”
Megan Strachan, in her final year of the JD/MA (Global Affairs) program, was one of the negotiators. “Seeing the issues, substantive, political and even spiritual, from the perspectives of all of the teams was incredibly eye-opening,” said Strachan. “Watching the conversations shift after the intervention of an elder was a testament to the principle of working by consensus, something that I previously did not have much experience with. The Moot captured the great complexity of the issues at stake, contextualizing them in a way that would be impossible in a classroom setting."
For Wendy Agnew 3L, the Moot taught her the importance of strategy: “How and when to bend in negotiations, when to form alliances and when to abandon them. I participated to learn the interplay of Indigenous laws with the common law and statute, to gain a better understanding of where jurisdiction begins and ends, and how to realistically challenge issues related to jurisdiction. The experience is truly a valuable one in bridging theory and practice.”
Three elders were invited to offer cultural support throughout the Moot: Cat Criger (Elder-in-Residence for the Faculty of Law’s Aboriginal Program), Dan Smoke and Mary Lou Smoke. The elders kicked off the negotiations with a teaching on respectful engagement with First Nations communities, and started each day with smudges.
Students and coaches were also part of the feasting of the Kawaskimhon bundle, a special ceremony that took place for the first time since the bundle’s creation. The bundle, a set of traditional gifts donated by each host school, was offered a spirit dish comprised of Aboriginal food, which was left with the bundle for 24 hours. The following day, the elders hosted a ceremony outside of Flavelle House, where the spirit dish was offered to the Earth at the base of a tree. Participants partook in a smudge and said a few words of thanks or prayer.
“The Moot experience brought back the importance of slowing things down and not being in a rush to achieve a result,” said Wendy Agnew. “The presence of the elders was a reminder of respect for Indigenous laws, the communities being represented and one another in your negotiation circle.”
Kawaskimhon was founded by Jean Teillet, Dianne Corbiere and Denise Lightning, who were students in the Faculty of Law at the time. Professor Macklem and other students assisted to establish a moot that focused solely on Indigenous issues. With the strong support of Justice Robert Sharpe, then Dean of the Faculty of Law, the law school hosted Kawaskimhon’s inaugural moot in 1994, focused on the case of Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, which was being heard at the Supreme Court of Canada. Students from the University of Toronto participated under the volunteer judgeship of former Ontario Regional Chief Gord Peters, Justice Mary-Ellen Turpel-Lafond and lawyer Joseph Arvay.
The 20th anniversary celebration included a gala dinner at Oro Restaurant, with warm welcomes from Thomas Conway, Law Society of Upper Canada treasurer, the elders, and a surprise presentation of an eagle feather to Justice Harry LaForme from his brother, Bryan LaForme, Chief of the Mississaugas of the New Credit. “An eagle feather gift is an incredibly high honour in Aboriginal cultures, and was the perfect way to start off the weekend’s events,” said Del Col.
For Victoria Bae, it was one of her best experiences at law school. “The cultural ceremonies were especially valuable, and I feel the mainstream Canadian legal process could benefit by referencing the Aboriginal way of listening and discussing. It is rare to be able to work toward solving a complex, real-life problem while learning about respect, solidarity and cultural sensitivity in a safe, positive environment. I strongly recommend other students to avail themselves to this unique opportunity.”
Gala dinner at Oro restaurant
The Faculty of Law thanks Olthuis, Kleer Townshend LLP, the Law Society of Upper Canada and Scotiabank for their generous sponsorship of the 20th anniversary of the Kawaskimhon Moot.
