The first ever aboriginal law moot court was held in Toronto late last month. Because this was an aboriginal moot it was given a native name, “Kawaskimhon” which means, “Speaking with knowledge.” It was also opened with a prayer by an elder who talked of respect for the Earth and a hope that our journey would be enlightening to that which is really important. Traditional blankets and drawings were hung in the moot court room. In the halls, there were tables of aboriginal crafts for sale. It all contributed to the sense that this was an aboriginal event.
Perhaps I should being by explaining what a moot is. It is a mock appeal where law students present legal arguments based on the facts of a particular case. This moot was based on the case Delgamuukw vs. British Columbia. In the original trial, the British Columbia Court of Appeal decided that aboriginal rights were not extinguished due to the protection of Section 35 of the Constitution Act of 1982. In a ruling that was hundreds of pages long, the court also decided that these aboriginal people did not have self-government.
A panel of three judges presides over a moot. The chief justice was Mary Ellen Turpel, a professor at Dalhousie law School and the constitutional advisor to the Assembly of First Nations. She is also Cree and recently co-authored a book with Ovide Mercredi, In the Rapids. Another judge was Joseph Arvay, who was the Queen’s counsel for the province of British Columbia when Delgamuukw went to trial. The third judge was Gordon Peters who is Ontario vice-chief of the AFN. He was there to represent the political perspective in the debate over aboriginal issues.
There were three teams of two law students to “moot” the issues. The first team chose the issues and represented the Gitskan and Wet’suwet’en people. The issues for this moot were: (1) Is there a right to self-government for these people? and (2) Does the provincial government have the power to extinguish aboriginal rights? The second team represented the interests of the provincial government. They argued that the provincial government had the right to extinguish aboriginal rights. The third team represented the interests of the federal government and their argument was that they could extinguish aboriginal rights but that the province could not.
The majority of the mooters were aboriginal and all of them were from the University of Toronto Law School. This was because it was the first year the moot took place and other law schools wanted to see how it would turn out.
Each mooter is given 40 minutes to present their arguments and after each team is done the court recesses for 10 minutes. Because of the knowledge of the panel and their closeness to the issue, the panel intervened a lot during the mooters’ arguments. None of the mooters even got a chance to complete their arguments and almost all were allowed to go into overtime. One mooter didn’t get past the first page of her first argument before her time was up.
The issues were handled well, with many references made to the Constitution Acts of 1867 and 1982 and other relevant legislation and cases. There was also talk of fundamental unwritten rights of human beings like the rights to existence and dignity. It was obvious these mooters had done their research.
At the end, the judges reserved judgement and instead commented on the moot itself. Mary Ellen Turpel appreciated the attention given to this important case and hoped the moot would become an annual event. Gordon Peters said that some of the propositions had made him angry as an aboriginal person, but that he had learned a lot. Finally, Joseph Arvay acknowledged the fact that the mooters faced a tough bench but that the teams did a fantastic job on the issues.
After the moot, there was a reception catered with traditional food where the audience and mooters met the judges. Presents were given to the judges, elders and mooters. All left with a feeling that it was a good day and were already talking about next year’s moot. It was then that I realized I had been there for over six hours. But I could not think of another place I would have liked to be on that day.
