HomeCommentaryWelcome to the Lawless Zone: the Kawaskimhon Moot and the Refusal to Recognize State Law

Welcome to the Lawless Zone: the Kawaskimhon Moot and the Refusal to Recognize State Law

Media coverage of the letter written by Quebec’s Minister of the Environment, in opposition to the new federal environmental assessment process, sparked a debate in Le Devoir on the value of Aboriginal traditional knowledge. On the one hand, a group of eight lawyers argued that “[s]ubordination of traditional knowledge to compatibility with scientific data amounts to establishing a hierarchy of knowledge in favor of scientific knowledge” [our translation]. On the other hand, Raymond Aubin, “visual artist and doctor in artificial intelligence”, suggested a distinction between the two types of knowledge – to which he recognized different functions – such that they would be granted different weight depending on the case. As for us, we doubt the wisdom of an ethnic or cultural definition of knowledge. So-called “Western” science is shining in many non-Western countries, just as Aboriginal, or Indigenous, knowledge can very well prove to be “knowledge”, period.

In the same way, Aboriginal and “Western” legal regimes may present themselves as oppositional as we witnessed in the recent Quebec Superior Court ruling which invalidated the Mohawk’s “Marry Out, Get Out” policy, but this opposition is neither desirable nor necessary. Such an antagonism could be observed last March at McGill University’s last edition of Kawaskimhon Moot, a fictitious Aboriginal law negotiation held in Canadian law schools since 1994.

 

Kawaskimhon: “speaking with knowledge”

The Kawaskimhon Moot is a “consensual” negotiation conducted within a legal framework based on federal and provincial domestic state law, public international law and law resulting from native legal or normative regimes. The facts leading to this year’s negotiations were mainly based on archaeological excavations conducted on the lands of Oka Municipality and Oka National Park, as well as the status of the artefacts that are found thereupon. In the face of real estate development projects inside of Oka Municipality and archaeological excavations conducted in the Oka National Park, the Kanehsatà:ke’s Mohawks fear they might see their cultural heritage disappear and their ancestral lands be stripped. In this context, the MCC, represented by the faculty of civil law of the University of Sherbrooke, was present at the bargaining table. Efforts were needed to reach an administrative agreement with the Kanehsatà:ke‘s Mohawks, as well as with other parties which were directly concerned with the problem, in order to ensure the conservation and development of the sites, while preserving Quebec and Mohawk cultural heritages.

Our methodological, if not epistemic approach, as representatives of the MCC, was to conclude an administrative agreement materially based on international law, measures implemented by other States and, most importantly, the so-called global land claim settlement agreements, that is to say based on an allegation of Aboriginal rights. Such settlements are also known as “modern treaties”. On a formal level, never have we doubted the realistic imperative, the interest and the pedagogical challenge of putting our proposal within the framework of domestic, positive (and current) Canadian state law.

 

When Aboriginal (pre-existing) law and State law of aboriginal peoples talk to each other without understanding one another

The parties’ mutual respect, in particular for their respective cultures, and that of their relations’ history, purported itself to be the main guide for negotiations. Good faith, therefore, was to hold a place of choice. Governmental bodies were aware of the harm done to Indigenous peoples, but had to remain realistic in carrying out the mandate assigned to them by law. Never could we ever have thought that the negotiation of an administrative agreement could be, for instance, the place for rewriting the law or the Constitution.

In the negotiation, therefore, one of the issues was, in our opinion, having the rule of law as a principle to guide our negotiations. Yet, the parties themselves did not even agree on the application of this principle. According to the Supreme Court of Canada, the rule of law implies three sub-principles: “There is one law for all […] the creation and maintenance of a real order of positive law that preserves and incorporates the most general principle of normative order [… and the] exercise of any public power must ultimately derive its source from a rule of law” (Reference re Secession of Quebec, [1998] 2 SCR 217, at para 71). Thus, the refusal to recognize the rule of law and, by the same token, the legally constituted governmental institutions, made it impossible to negotiate an agreement with those institutions. Thus, the main fault in the arguments advanced by the non-governmental parties lay in their non-recognition of the public institutions with which they claimed to want to negotiate.

This refusal to accept state law while trying to reach an agreement with legally constituted public authorities surely poses a practical problem. Beyond the ideological rhetoric directed towards it, Canadian state law is not completely ignorant of the legality of native normative regimes (R. v. Van der Peet, [1996] 2 SCR 507, at para 68, Delgamuukw v. British Columbia, [1997] 3 SCR 1010, at para 80, Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 256, at para 14, 32 and 35). The indifference to the federative distribution of powers also rendered the exercise completely unrealistic, hyper-fictitious, and its results, more often than not, invalid.

Finally, the activity was above all an introductory exercise to a somewhat essentialized “aboriginal law”, posed ideologically as an antidote to the domination of a reduced Canadian state law, even in its constitutional component, to its status of a more or less unconscious colonialism instrument. It was that, rather than a meeting place between Aboriginal and state jurisdictions, meeting which could have been better based on the principle of recognition already granted under section 35 of the Constitution Act, 1982 by the Supreme Court of Canada.

The refusal to recognize state law is obviously not without consequences for the rule of law, which is a social good. Of course, it is always possible to question the value of this ideal. Yet, this will require an open and frank discussion. For our part, we believe that the rule of law, as well as international human rights law and the rights of Indigenous peoples derived from it, need not be conceived of as a “Western” monopoly. No more than knowledge, for that matter.

In short, like Professor Maxime St-Hilaire, we believe that the modern State already carries in itself the principle of its “decolonization”, in the form of a principle of operations of recognition of Indigenous legal regimes. The current challenge is to reflect together, amongst Aboriginals and non-Aboriginals, on the coordination of recognition operations, so that, beyond the “relations of facts”, the Indigenous legal regimes can in turn recognize, on their terms, both domestic and international state law.

 

A risky non-application of state law

Institutions are created and governed by constitutional, legislative, regulatory and jurisprudential norms. These institutions must act within the framework prescribed by these norms. For example, the provincial legislature cannot, by virtue of the division of powers, pass a law that defines the Aboriginal status. This means that it is legally impossible to sign an agreement that does not fall within the legal framework in force, unless it is improbably foreseen in the agreement that this framework will be modified. You cannot sign anything and say, “We’re going to make it work.”

Furthermore, not giving weight to the rule of law ultimately favors the emergence of populist movements that, by their very nature, attack these rules, perceived by them as limiting the will of the “people”, which they oppose to the “elites”, in order to claim the monopoly of “representation”. Populism thus puts at risk minority groups and Indigenous peoples, who have their interests protected by legal norms, such as, for example, Section 35 of the Constitution Act, 1982.

 

Recognition of aboriginal legal orders: the (real, two-)way forward

The foregoing does not preclude the recognition of Aboriginal legal orders by non-Aboriginal legal orders, as evidenced by the caselaw following Section 35 of the Constitution Act, 1982. What we defend here also does not preclude the adoption of measures that would grant a greater autonomy to Aboriginal peoples. We believe that this recognition and these measures must be achieved within the applicable legal framework, which conceals the potential to do so. An example of this recognition is given by the Act to amend the Civil Code and other legislative provisions as regards adoption and the disclosure of information of June 16, 2017.

Like Professor St-Hilaire who, in his (published) thesis, sits on this issue at the confluence of Santi Romano and H.L.A. Hart, we believe that a distinction must be made between the factual relationships and the legal relationships that different legal systems may have. A “de facto domination” does not necessarily imply a “legal domination”. Thus, the fact that the state’s legal order exerts some de facto domination over Indigenous legal orders doesn’t mean that it does so de jure. The Indigenous legal order, which is dominated in practice by the effects of the state legal order, may very well not provide for operations of its recognition of the latter – which has no jurisdiction over the recognition operations of the former, and vice versa. We agree with Professor St-Hilaire when he argues that promoting the recognition of effects of the Canadian constitutional and state legal order by Aboriginal legal orders will further contribute to decolonization and reconciliation. Once we know that state law can recognize Aboriginal law as valid, we understand better that requiring the rule of law to be respected will not necessarily be culpable of “bureaucratic neocolonialism”. There is, moreover, no reason to reduce to state law modern treaties concluded between the State and one or more Aboriginal communities if, as the agreement in principle with some Quebec Innu Nations shows, such a treaty may well stipulate the full recognition of Aboriginal rights, conceived of as originally the product of Indigenous legal orders, and for which it simply provides for commonly agreed modes of exercise.

Such an approach is in line with the recognition of the right to self-determination of Indigenous peoples. Section 3 of the United Nations Declaration on the Rights of Indigenous Peoples – the substantive development of which Indigenous peoples have made a significant contribution toward – includes this right, and the right of Indigenous peoples to “freely determine their political status and freely pursue their economic, social and cultural development.” Indeed, the recognition of the “right to produce law” is even richer and more emancipatory than that of essentialized norms.

 

Let us add, on a final note, that “values” should not substitute themselves for law. Although always present in the (normative non-legal) “facts”, values should not have us fall into the universe of lawlessness.

 

Chloé Emond is a master’s student in law research at the Université de Sherbrooke.

Guillaume Sirois-Gingras is a third-year law student at the Université de Sherbrooke.

We would like to thank Chantal Bellavance for translating this article from French to English. Thank you also to Ilona Bois-Drivet and Justin Chenel for their collaboration and participation in the Kawaskimhon competition, and finally to professor Maxime St-Hilaire for his coaching us.

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