Moot Problem

On this page:
Fact Pattern
Exercise
Parties to negotiation
Resources

Fact Pattern

This problem concerns the status, protection and control of Indigenous archeological heritage artefacts - and of the sites at which they are found – which are of central significance to the culture and identity of Mohawk (Kanien’kehá:ka) people of Kanehsatà:ke located within the traditional territories of the Mohawk Nation (see map). The history of the land at issue has contributed to tense relations between the Mohawk Nation, the Municipality of Oka, the province of Quebec, and the Government of Canada with respect to control over these sites and items removed from them.

The area where the archaeological sites are located forms part of the St. Lawrence River valley at the confluence of the St. Lawrence and Ottawa rivers in the province of Quebec. It has long been used by Kanien’kehá:ka. However, in 1717, King Louis XIV of France granted land to the Catholic Sulpician order to found the Seigneury of the Lake of Two Mountains for Mohawk, Nippising and Algonquin Christian converts. The Sulpicians proceeded to sell most of the land to private settlers, with the mission and surrounding lands becoming the Municipality of Oka in 1867, all of which was persistently protested by Kanien’kehá:ka. In 1945, the Federal Government purchased remaining Sulpician lands (without consultation), resulting in some 20 non-contiguous parcels of land being set aside as “Indian lands” under s.91 (24) without being designated as a reserve under the Indian Act 1985. A further 27 parcels occupied by Mohawk residents were also located within the Municipality of Oka. In 1975, a joint comprehensive (Aboriginal title) land claim by the Mohawks of Kanien’kehá:ka at Kanehsatà:ke, Kahnawake and Akwesasne with respect to the Sulpician lands was rejected by the Federal Government on the basis that, in their opinion, the Mohawks had not possessed the land continuously since time immemorial, and that any Aboriginal title had been extinguished either through the original grant, or through sale to third parties. In 1977, the Mohawks of Kanehsatà:ke filed a specific land claim; although it was not considered to meet specific claim criteria, it was accepted as “a claim of a third kind”, meaning that it did not fit easily into one of the two types of claims under federal policy but rather touched on aspects of both.

These long-standing tensions around the land question exploded in the “Oka crisis” in 1990 following municipal plans to expand a golf course and construct 60 condominiums in a sacred pine forest that includes Mohawk burial sites.[1] Following a 78 day armed stand-off between Mohawk protestors and their supporters on the one hand, and police and the army on the other, the development plans were abandoned; Canada purchased these and other lands and eventually signed an agreement with the Mohawks of Kanehsatà:ke, assented to in the Kanesatake Interim Land Base Governance Act 2001, recognizing the lands as an interim land base for Kanehsatà:ke.  This Act also stated that these lands were “set aside for the use and benefit of the Mohawk of Kanehsatà:ke as lands reserved for Indians” under s.91(24) but not as a reserve under the Indian Act. Unusually, although the community has an Indian Act Band Council (the Mohawk Council of Kanehsatà:ke (MCK)) and is recognized as a “band” under the Indian Act with relevant sections of that Act applying to them, none of the lands at Kanehsatà:ke were ever formally accorded status as an “Indian reserve.” As a consequence, the Interim Land Base Governance Act also acknowledges that the jurisdiction of the Mohawks of Kanehsatà:ke over these newly acquired lands (s.7) is exercised through the MCK (s.6). Prior to 1990, Chiefs had traditional hereditary claims to positions through their clans under the Haudenosaunee matrilineal kinship system; in 1991, an electoral system (“custom” rather than s.74 elections) was adopted. Today there are continued tensions between traditional longhouse government and the MCK as to the legitimate political representation of Kanehsata'kehró:non (people of Kanehsatà:ke).

Since the 1930s, digs in the Parc National d’Oka (PNO, on provincial crown land within the bounds of the original Seigneury), which do not form part of the Mohawk s. 91(24) reserve lands, revealed the presence of thousands of archaeological sites and items in, on and under the land - members of the public can even pay a fee to participate in digs at some of these sites organized by Park authorities! Although Kanehsata'kehró:non benefit from an entry fee waiver for the PNO, intensive public occupation of the Park grounds has made it difficult and undesirable for them to maintain any ceremonial activities or traditional practices on those lands in recent decades.

Urban development planned in the Municipality of Oka on privately held parcels also risks disturbing similar sites and archaeological heritage of the Mohawks. Concerned about what they see as potential theft of Mohawk artefacts, members of the Longhouse attempted to meet with the Quebec Minister for Culture and Communications to discuss how Kanehsatà:ke’s cultural heritage could be protected. The meeting was cancelled, citing deference to the MCK as the appropriate decision-maker on archeological digs (see open letter from Ellen Gabriel to Prime Minister Trudeau in “Other Resources”).

The regulatory framework currently in place across Canada regarding ownership, protection, control and trade of archaeological sites and items in, on or under those sites is a combination of federal and provincial/territorial legislation shaped by private property rationales. There is no comprehensive federal legislation or policy that regulates archaeological sites on federally owned land. However, trade in archaeological heritage, including Indigenous ancestral remains and artifacts, is addressed in the Cultural Property Export and Import Act 1985. In general, protection, access and control over sites on federal land, other than reserve lands, are issues implicated in common law, national parks, environmental and historical monuments legislation and policy, and have also been the subject of negotiation in modern treaties and comprehensive land claim agreements. Protection and control of archaeological sites are also affected by provincial heritage conservation legislation which in some instances applies to both public and private land and vests ownership of items in, on, or removed from such sites in the province. Most of this legislation dates from before the recognition of Aboriginal and Treaty rights in s.35 of the Canadian Constitution Act 1982, the Oka crisis, the Report of the Royal Commission on Aboriginal Peoples formed in response to that crisis, and other key developments in Canadian and international law and policy.

In Quebec, the 2012 Cultural Heritage Act governs archaeological surveys and excavations, and sets up a scheme whereby the Minister of Culture and Communications grants cultural heritage designation and regulates it. The legislation also expands the powers and responsibilities that municipalities had under the Cultural Properties Act 1972 with respect to the designation and management of cultural heritage. Note that s. 118 specifies that the powers conferred to municipalities may also be exercised by Indigenous communities on reserve lands, represented by their Indian Act band council.

Exercise

The Kawaskimhon Moot exercise this year takes place in two stages. Your team’s task in Stage 1 of the moot is to represent your party at the table in negotiating a protocol for protection, control and trade of cultural artefacts in, on, under, or removed from these two sites, and for protection and control of the sites themselves. The objective of Stage 2 is to offer recommendations for the development of national policy on Indigenous archaeological artefacts derived from your work in Stage 1. In preparation for the moot, you are asked to draft:

(1) a position paper for your party in Stage 1, drawing, as relevant, on domestic state law, international law, and Indigenous legal traditions (15 pages)

(2) a proposal for policy or legislative development for Stage 2 (10 pages).

The position and policy papers should be double spaced and in 12-point font, and emailed to kawaskimhon [at] mcgill.ca by 5 pm PST February 11, 2018.

Parties to negotiation

1. Mohawk Council of Kanehsatà:ke (“MCK”)

MCK is the band council of the Kanien’kehá:ka (Mohawk) community at Kanehsatà:ke, elected according to customary elections under the Indian Act.

The history of the Mohawk Nation has contributed to tense relations with the Municipality of Oka and the provincial and federal governments. Given past and current grievances, the MCK will advocate strongly for recognition of its community’s rights to protect and control their archaeological heritage, and will negotiate these within the larger objective of Mohawk nationhood and nation-building.

2. Longhouse leadership/condoled Chiefs of Kanehsatà:ke (“The Longhouse”)

The traditional leadership of the Mohawks of Kanehsatà:ke is represented by matrilineal clan governance commonly referred to as “The Longhouse.” The relationship between the Longhouse in Kanehsatà:ke and the Mohawk Council of Kanehsatà:ke has often been tense, as exhibited by Ellen Gabriel’s letter of June 22, 2016 to Prime Minister Trudeau. The Longhouse considers itself to be the legitimate governing body of the Kanien’kehá:ka and the Mohawk Council of Kanehsatà:ke to be a colonial body because the latter derives authority from the Indian Act rather than from the community as a sovereign people. 

Like MCK, the Longhouse will advocate for deference to the Mohawk of Kanehsatà:ke for all decisions that impact Mohawk archeological heritage and lands. However, the Longhouse argues that it is insufficient for the Crown to consult with MCK.

3. Federal Government (“Canada”)

The Federal Government represents Her Majesty the Queen in Right of Canada. Keep in mind that for the Mohawk parties, federal intervention in disputed territorial claims will always bring to mind the “Oka Crisis.” In this conflict, Prime Minister Brian Mulroney responded with military force following the failed efforts of the provincial police (Sûreté du Québec) to disassemble Kanien’kehá:ka  barricades, deploying 800 soldiers from Quebec City as well as numerous tanks and trucks. Following the standoff with Mohawk warriors and allies, the military negotiated an uneasy peace with those at the barricades.

The current Federal government has released new principles for its renewed relationship with Indigenous peoples, envisioned as a nation-to-nation relationship based on the recognition of rights, respect, and partnership. In particular, the government has committed to review its laws and policies in light of the UNDRIP, the TRC’s Calls to Action, the RCAP, and s. 35 (see “Principles respecting the Government of Canada’s relationship with Indigenous peoples” on the Department of Justice’s website.) The Federal Government will seek to negotiate a careful settlement that will ease historic tensions between local governments and the Mohawks at Kanehsatà:ke as well as establish a precedent the Federal Government finds acceptable within this new policy framework.

4. Quebec Ministry of Culture and Communication (“QMCC”)

From its Mission Statement (translated from the original French): “The Ministry of Culture and Communications has as its mission to contribute to the affirmation of Québécois cultural vitality and identity, to favour access and participation of citizens to cultural life, and to spark the development of communications.” The vision of the QMCC is: “Culture, a Québécois responsibility and essential component of societal development, which integrates into social, economic, environmental and territorial dimensions and which calls for the engagement of partners.” The QMCC relies on many partners, under the direction of the Minister, to implement the Act Respecting the Ministère de la Culture et des Communications and to achieve the cultural goals of the provincial government. (See QMCC website: www.mcc.gouv.qc.ca/index.php?id=166 and the Act: legisquebec.gouv.qc.ca/en/ShowDoc/cs/M-17.1)

The QMCC will seek to reconcile its own interests in protecting its commitment to the province and to Quebecois patrimony with the need to recognize and respect Indigenous cultural heritage. It will also strive to balance scientific and public interests in protection, control, and development of archeological heritage.

5. Municipalité d’Oka (“MO”)

The Municipality of Oka is a Quebec municipality located on the north shore of the Lake of Two Mountains, geographically surrounding the lands of Kanehsatà:ke. The original inhabitants of the area are Kanien’kehá:ka  (Mohawk), whose conversion was the object of the Sulpician (Roman Catholic) mission established in 1721. The town grew from the concession of a seigneury from the King of France to the Sulpicians.

Following the Oka crisis, some of the Municipality’s largely francophone residents were openly hostile to Kanehsata'kehró:non.

The Municipality will seek to understand its obligations with respect to archeological heritage on territory claimed by an Indigenous group. While it has historically considered Aboriginal title in the area to be legally extinguished, the MO will strive to maintain peace between Kanien’kehá:ka  community members and Oka’s other residents as it pursues its mandate for continued municipal development.

6. Parc National d’Oka (“PNO”):

This Park, located on the north shore of the Lake of Two Mountains, is part of Quebec’s SÉPAQ (provincial park) network. The PNO advertises environmental and historic points of interest: diverse animal and plant species, year-round access to trails for recreation and contemplation, campsites, and the famous Calvaire d’Oka - four oratories and three chapels built by the Sulpicians in the 1740s. The Park is part of the provincial government’s responsibility to manage conservation and historical sites within the province. See: www.sepaq.com/dotAsset/31609.pdf

It is important for the PNO to protect the park’s unique environmental and historical heritage, in which it typically emphasizes the impact of the Sulpicians – rather than the Mohawks – on the area’s history. The PNO also seeks to ensure that scientific and public interests in protection and control of archeological heritage are considered.

7. The Assembly of First Nations of Québec and Labrador (“AFNQL”)

The AFNQL was created in 1985 and provides support for the following ten nations: Abenaki, Algonquin, Atikamekw, Cree, Huron-Wendat, Maliseet, Micmac, Mohawk, Montagnais-Innu and Naskapi. The mission of the AFNQL is the affirmation and respect of First Nations’ rights, governance and decision-making as well as recognition of First Nations’ cultures and languages. Part of this mission involves petitioning governments on behalf of its member First Nations, but the AFNQL also seeks public support for its goals by working collaboratively with local organizations and governments.

The most important value for the AFNQL will be the protection of Indigenous property and human rights, particularly those enshrined in the UNDRIP. However, of significant importance will also be the process designed to reach a solution; implementing government-to-government relations between Indigenous and settler governments is at the core of the AFNQL’s mission.

8. Indigenous Bar Association (“IBA”)

The IBA represents Indigenous lawyers in Canada and has several key objectives, which it lists on its website:

  1. To recognize and respect the spiritual basis of our Indigenous laws, customs and traditions.
  2. To promote the advancement of legal and social justice for Indigenous peoples in Canada.
  3. To promote the reform of policies and laws affecting Indigenous peoples in Canada.
  4. To foster public awareness within the legal community, the Indigenous community and the general public in respect of legal and social issues of concern to Indigenous peoples in Canada
  5. In pursuance of the foregoing objects, to provide a forum and network amongst Indigenous lawyers: to provide for their continuing education in respect of developments in Indigenous law; to exchange information and experiences with respect to the application of Indigenous law; and to discuss Indigenous legal issues.

As an intervenor in this process, the IBA will emphasize the inclusion of Indigenous laws, customs and traditions. It will support an outcome that could serve as a wider model in Canada for resolving cultural heritage disputes in a manner that respects Indigenous rights.

Resources

Books

  • Brenda Katlatont Gabriel-Doxtater, Arlette Kawanatatie Van den Hende, Kanehsatà:ke  Education Center, At the Woods' Edge: An Anthology of the History of the People of Kanehsatà:ke (Kanehsatà:ke, Québec : Kanehsatà:ke  Education Center, 1995)
  • Alfred, Gerald R. Heeding the Voices of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Oxford University Press, 1995)
  • Goodleaf, Donna. Entering the Warzone: A Mohawk Perspective on Resisting Invasions (Theytus Books, 1995)
  • Barreiro, José, Thinking in Indian: A John Mohawk Reader (Fulcrum Publishing, 2010)
  • Fenton, William, The Great Law and the Longhouse : A Political History of the Iroquois Confederacy. (University of Oklahoma Press, 1998) [Note: this is an ethnography by a classic Iroquian scholar, and viewed with circumspection by some contemporary Haudenosaunee. Parts of the Introduction, Part One, and Chapters 14-16 may provide useful background on the Great Law of Peace and Haudenosaunee governance]
  • Marie Battiste and James (Sa’ke’j) Youngblood Henderson, Protecting Indigenous Knowledge and Heritage (Purich Publishing, 2000)
  • Catherine Bell & Robert K. Paterson, eds., Protection of First Nation Cultural Heritage: Laws, Policy and Reform (U.B.C. Press, 2009)
  • Catherine Bell & Val Napoleon, eds., First Nations Cultural Heritage and the Law: Case Studies, Voices and Perspectives (University of British Columbia Press, 2008).
  • Michael Brown, Who Owns Native Culture? (Harvard University Press, 2003)
  • James Nafziger, Robert K Paterson, A Renteln eds., Cultural Law: International, Comparative, Indigenous (Cambridge University Press, 2010)

Articles and Book Chapters

  • Catherine Bell, “Ownership and Trade of Aboriginal Cultural Heritage in Canada” in Christoph B. Graber, Karolina Kuprecht, and Jessica Lai (eds.), International Trade in Indigenous Cultural Heritage:  Legal and Policy Issues (Cheltenham UK, Northampton MA, USA: Edward Elgar, 2012) 362– 395.
  • Catherine Bell, "Aboriginal Claims to Cultural Property in Canada: A Comparative Examination of the Repatriation Debate" (1992-93) 17(2) American Indian Law Review 457-521.
  • Patrick Walker and Clarine Ostrove, ‘The Aboriginal Right to Cultural Property” (1995 Special Issue Material Culture in Flux) University of British Columbia Law Review 13.

Other Resources


[1] In 1990, the existing gravesites had previously been authorized for use as a burial ground under s.18 (2) of the Indian Act. Later extensions of the graveyard took place solely under Mohawk jurisdiction without seeking ministerial authorization.