Faculty of Law

Faculty of Law
Faculty of Law

Welcome! Wa’tkwanonhwerá:ton! Boozhoo!

Queen’s Law was the proud host of the Kawaskimhon National Aboriginal Law Moot from March 11 to March 13, 2016.

A total of 17 law schools from across Canada participated in the 22nd annual Kawaskimhon Moot, hosted in 2016 by the Faculty of Law at Queen’s University in Kingston, Ontario, on the traditional territory of the Haudenosaunee and Anishinaabe peoples.

About the moot

The first Kawaskimhon Moot was held in 1994 at the University of Toronto. Kawaskimhon is a word of Cree origin which can be translated as “speaking with knowledge”. The moot is unique in that it incorporates principles of Indigenous law and uses a talking circle format in an effort to build consensus among participants, rather than an adversarial process. Teams from law schools across Canada representing various parties come together to discuss and negotiate legal issues of importance to Aboriginal peoples in Canada and try to reach a consensus-based resolution of these issues. This year’s problem focuses on several issues raised by the Final Report of the Truth and Reconciliation Commission, including the implementation in Canadian law of the United Nations Declaration on the Rights of Indigenous Peoples, and the reconciliation of Crown and Indigenous legal orders in Canada.

Venue and accommodations

All moot events took place at the Queen’s University Faculty of Law, Sir John A. Macdonald Hall, 128 Union St., Kingston, with the exception of the banquet on Saturday evening, which was held at the Holiday Inn Kingston Waterfront, 2 Princess St., Kingston.

 

 

Schedule (click to expand)

Friday, March 11, 2016

7:00 p.m.

Reception/screening of film
Third World Canada by Andrée Cazabon,
Macdonald Hall Room 001

Introductions/informal discussions among teams

Saturday, March 12, 2016

8:30 a.m. Breakfast and registration
9:00 a.m. Opening ceremony
10:00 a.m. Negotiations begin
12:15 p.m. Lunch; Law Dean’s Panel on Economic Development
and Reconciliation with Aboriginal Peoples
Panelists:
David Sharpe, Law'95
David is the President and Chief Operating Officer of Bridging Finance Inc., a private investment management firm based in Toronto. David has two decades of financial services industry experience, in roles such as General Counsel, Chief Compliance Officer and Chief Risk Officer, and previously was the head of investigations for the Mutual Fund Dealers Association of Canada. David is currently the Chair of the Board of Governors of the First Nations University of Canada. He is also on the Board of Directors of Native Child and Family Services of Toronto and a Board member of the economic development corporation for Eabametoong (Fort Hope) First Nation, a community located approximately 300 kilometres northeast of Thunder Bay.
David is a Mohawk and a member of the Mohawks of the Bay of Quinte, located near Deseronto, Ontario. David is a lawyer and has been a member of the Law Society of Upper Canada since 1997. He has an LLB from Queen’s University, an LLM in Securities Law from Osgoode Hall Law School and a Masters of Business Administration from the Richard Ivey School of Business, University of Western Ontario. David has also received the Professional Director Certification from the Johnson-Shoyama Graduate School of Public Policy at the University of Saskatchewan/University of Regina.

Ogimaa Duke Peltier
Ogimaa Duke Peltier’s career path has been grounded in the historical and cultural teachings given to him from his relatives and elders. His close kinship ties within the Wiikwemkoong community has inspired and prepared him for leadership positions in community development on Manitoulin Island, Ontario and Saskatchewan for over 15 years. Duke attended Laurentian University in Sudbury and focused on Native Studies. As a culturally grounded and educated leader, he is particularly interested in the promotion of excellence in his community. He believes strongly that it is when Anishinabek are given the opportunity to reach their full capacity and develop their special gifts that only then can they take their rightful place in all sectors of society. Ogimaa Peltier’s commitment to serve his people has been demonstrated throughout his career, from his early work as a Marketing Executive, Wiikwemkoong Council member, to his current role as the elected Chief of Wiikwemkong Unceded for a second term. He has also served on several boards of directors, including community organizations and is a big fan of participating in sporting initiatives. Through his leadership roles in business, politics, education and community service, Duke has had many accomplishments but is particularly proud of his partnership building ventures with non-Aboriginal and other community representatives which leads to progressive change.

Under Ogimaa Peltier’s leadership, the community has moved forward in taking control over its destiny through two major initiatives that have been enacted, the Wiikwemkoong Constitution – Wiikwemkoong Gchi-Naaknegewin and the Wiikwemkoong Children’s Bill of Rights.

Duke and his wife, Nicole, have three children and live in Wiikwemkoong.

Dr. Mark S. Dockstator
A member of the Oneida Nation of the Thames, Dr. Dockstator is the President of First Nations University. He has been an Associate Professor, Indigenous Studies, at Trent University since 1997. In addition, Dr. Dockstator also served as Departmental Chair and Director of the PhD program. He received his Juris Doctor (J.D.) Degree from Osgoode Hall Law School, York University. In 1994, he was the first First Nations person to graduate with a doctorate in law. His doctoral dissertation, entitled “Toward an Understanding of Aboriginal Self Government”, is a blend of Indigenous and Western knowledge and was used as a foundation for the Royal Commission on Aboriginal Peoples final report.

Dr. Dockstator has served as founding Chairman of the First Nations’ Statistical Institute, Senior Negotiator and Researcher for the Assembly of Manitoba Chiefs, President and CEO of Rama Economic Development Corporation, Special Advisor to the Royal Commission on Aboriginal People and Special Advisor to the Chief Commissioner of the Indian Land Claims Commission, to name a few. Dr. Dockstator has a great deal of business experience and has a specific research expertise in Aboriginal issues, having served as Principal Investigator on an array of national and regional research projects in areas such as Aboriginal health, treaties, Aboriginal languages and culture, education and economic development.

Kelly LaRocca
Kelly LaRocca proudly serves as the elected Chief of the Mississaugas of Scugog Island First Nation. Kelly was first elected as Chief in July 2013, and was acclaimed as Chief in 2015. Prior to her election as Chief, Kelly began her career in public service as a full-time elected Councillor to Scugog First Nation in 2008. Kelly began her post-secondary education at the University Western Ontario, from which she graduated with an Honours Degree in Philosophy. Kelly went on to the University of Windsor, Faculty of Law, where she graduated with her LL.B. in 2000. Kelly also attended the University of Victoria, Faculty of Law for Masters course work in Aboriginal Law.

1:30 p.m. Negotiations resume
5:00 p.m. Negotiations end 
7:00 p.m. Banquet at Holiday Inn Kingston Waterfront 

Sunday, March 13, 2016

8:30 a.m. Breakfast
9:00 a.m.

Negotiations begin

Noon Closing ceremony
1:00 p.m. Lunch for participants and
coaches’ lunch (re Call to Action 28)

 

Sponsors (click to expand)

We were sponsored by the following organizations:

OLTHUIS, KLEER, TOWNSHEND LLP

 

 

 

 

BRIDGING FINANCE

PARTICIPATING INSTITUTION: FIRST NATIONS UNIVERSITY OF CANADA

First Nations University

Moot problem 2016

Statement of the Government of Canada* on Negotiating a New Relationship with the Aboriginal Peoples of Canada

The Government of Canada welcomes the findings of the Truth and Reconciliation Commission of Canada (the “Commission”), and acknowledges in particular the Commission’s calls for the Government of Canada to “fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation”[1] and to “develop a national action plan, strategies, and other concrete measures to achieve the goals”[2] of the Declaration, which the Government of Canada has now endorsed.[3]

The Government of Canada, without committing to taking such a step, wishes to consider more fully, with the participation of the Aboriginal Peoples of Canada, the Commission’s request that a new Royal Proclamation of Reconciliation be issued, which would, among other things, “[r]epudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius[4] and “[r]enew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future”.[5] These would indeed be bold steps in renewing the relationship between Canada and the Aboriginal Peoples of Canada.

The Government of Canada is committed to acting to renew this relationship. However, the Government of Canada must be mindful of its role in ensuring that the rights of all Canadians are assured and protected. In this regard, the Government of Canada wishes to emphasize the importance of good faith negotiations in achieving meaningful reconciliation, an importance which has been repeatedly highlighted by the courts.[6] Before considering the issuing and implementing of a Royal Proclamation of Reconciliation and establishing a new relationship with the Aboriginal Peoples of Canada, the Government of Canada wishes to engage in meaningful negotiation to resolve any differences and achieve true reconciliation.

Accordingly, the Government of Canada wishes to convene representatives of the Aboriginal Peoples of Canada to the negotiation table—as well as representatives of the provinces, whose important role in achieving meaningful reconciliation must be recognized[7]—with the purpose of discussing the development and implementation of a Royal Proclamation of Reconciliation and establishing a renewed relationship on the basis of the findings of the Truth and Reconciliation Commission; and the Government of Canada is prepared to discuss the following points, without committing to adopting any particular resolution on any of them:

  1. The possibility, in the spirit of viewing treaties as based on mutual recognition and respect, and in light of article 37 of the United Nations Declaration on the Rights of Indigenous Peoples, but without prejudice to the rights of all Canadians, of abandoning the longstanding policy of regarding some treaties as having ceded traditional lands.
  2. The application in Canadian law of the concept of “free, prior, and informed consent” as set out in articles 19 and 32(2) of the United Nations Declaration on the Rights of Indigenous Peoples and its relationship to the Crown’s duty to consult as currently recognized by Canadian courts.[8]
  3. The possibility of implementing such a right, even in the absence of a declaration of Aboriginal title, across the traditional territories of all of the Aboriginal Peoples of Canada, including both treaty lands and lands not covered by treaty, provided the implementation of such a right is achieved through good faith negotiation.
  4. The role of Indigenous law and legal principles and traditions in developing the principles that should guide the interpretation of a right of “free, prior and informed consent” and in developing the required negotiation framework to resolve disputes over any of these issues.[9]

It is the Government of Canada’s firm hope that these negotiations will lead in time to the development of a renewed relationship and the issuing of a Royal Proclamation of Reconciliation. It is in this spirit of reconciliation, and of mutual respect and recognition, that the Government of Canada wishes to convene the representatives of the Aboriginal Peoples of Canada to the negotiation table.

Negotiation Tables

Table 1

Table 2

Table 3

Government of Canada

Osgoode Hall Law School Team 1

Government of Canada

Osgoode Hall Law School Team 2

Government of Canada Osgoode Hall Law School Team 2

Assembly of First Nations

University of Manitoba

Assembly of First Nations

University of British Columbia Team 1

Assembly of First Nations University of British Columbia Team 2

Congress of Aboriginal Peoples

Queen’s University

Métis National Council

University of Saskatchewan Team 1

Government of British Columbia University of Windsor Team 2

Government of Newfoundland and Labrador

University of New Brunswick Team 1

Government of Alberta

Thompson Rivers University Team 1

Inuit Tapiriit Kanatami University of Alberta Team 2

Assembly of Nova Scotia Mi’kmaq Chiefs

Dalhousie University

Government of Ontario

University of New Brunswick Team 2

Union of British Columbia Indian Chiefs University of Victoria

Government of Nova Scotia

University of Windsor Team 1

Chiefs of Ontario

Lakehead University

Council of Yukon First Nations Thompson Rivers University Team 2

Government of Quebec

McGill University

Confederacy of Treaty Six First Nations

University of Calgary Team 1

Native Women’s Association of Canada University of Toronto Team 2

Inuit Tapiriit Kanatami

University of Alberta Team 1

Native Women’s Association of Canada

University of Toronto Team 1

Government of Yukon University of Calgary Team 2

Assembly of the First Nations of Quebec and Labrador

University of Western Ontario

Treaty 8 First Nations of Alberta

University of Ottawa

Dene Nation University of Saskatchewan Team 2
 

*Not a real policy statement—this is the Kawaskimhon Moot 2016 problem.

[2] Ibid, Call to Action 44.

[3] The Government of Canada, in its statement of support, reiterated some of its concerns over certain provisions of the Declaration, including “provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations”, as well as “the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties” (Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples, November 12, 2010, online: <www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142>).

[4] Calls to Action, supra note 1, Call to Action 45(i).

[5] Ibid, Call to Action 45(iii).

[6] See e.g. Delgamuukw v. British Columbia, [1997] 3 SCR 1010, 153 DLR (4th) 193, at para. 186; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511, at para. 14.

[7] See in this regard the decision in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 SCR 447.

[8] In this regard, the Government of Canada is not unmindful of recent jurisprudence which refers to the value of consent in the consultation process: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 257, at para. 97.

[9] The Government of Canada acknowledges in this regard article 27 of the United Nations Declaration on the Rights of Indigenous Peoples.