Law moot participants "speak with knowledge"

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Law students from across the country gathered in Windsor on March 10 and 11 to debate the federal government's fiduciary responsibilities for Aboriginal people, during the seventh annual Aboriginal Law Moot.

The Aboriginal Law Moot competition, known as Kawaskimhon, or "speaking with knowledge." involved participants representing law schools from the universities of British Columbia, Victoria, Alberta, Calgary, Saskatchewan, Manitoba, Windsor, Ottawa, Toronto, as well as York University (Osgoode Hall) and McGill.

The task set before the participating students was to try to reach a consensus on the fiduciary duties of the government to Aboriginal people in Canada."

According to Windsor law professor Len Rotman, the concept of the federal government's fiduciary duties to Aboriginal people was first raised in the Supreme Court of Canada's decision in the Guerin case in 1984.

"What it means is that the Crown has a duty to act in the best interest of Aboriginal peoples, and part of that duty is the duty to act in good faith, and to avoid conflict of interest, but also a duty to act in a selfless manner," Rotman explained.

Facilitators for this year's Aboriginal Law Moot included Justice Harry LaForme of the Ontario Superior Court of Justice; Ralph Keesickquayash and Kathleen Lickers, associate legal counsels for the Indian Claims Commission (ICC); and Michael Coyle of the Indian Commission of Ontario.

A moot, Rotman explained, is basically a mock appeal, giving participating students a set of facts, either from a real case or a fictitious one, and then having them assume the roles of lawyers representing the various parties involved.

"It gives them an opportunity to practice some of the different skills that they would use as a lawyer - their writing skills, their drafting skills, as well as their oral skills, " Rotman said.

The students spent the two days of the competition examining the fiduciary duties of the government to Aboriginal people, but at the end of the moot, failed to reach a consensus. This, according to Rotman, was due more to lack of time than lack of effort.

"What ended up happening again, as happens in the moot quite often, is we did end up running out of time at the end. A lot of different ideas were shared and there was a lot of discussion and some commonality on a lot of different issues. But I wouldn't say that a consensus was reached at the end of the day. . . that's certainly not for a lack of trying, and its not because the people didn't necessarily agree, but it's mostly due to time constraint. But there were a lot of different points that were raised, and a lot of parties, I think, received information from some of the other groups that they perhaps hadn't thought of, but thought that made a lot of sense to them upon further reflection and once other groups had a chance to make presentations," Rotman said, adding that there was "a lot of good information shared and a lot of good discussion and learning through the whole process."

According to Rotman, each of the participating law schools has its own criteria for selecting it representatives to take part in the annual Aboriginal law moot, although generally most schools give preference to Aboriginal students, with Aboriginal participation traditionally sitting at 95 per cent or better.

"The overwhelming majority of students who participate are Aboriginal students," he said.

The Aboriginal law moot event was originally created by Aboriginal law students at the University of Toronto, Rotman said. "They decided they wanted to have a moot, or create a scenario, where Native students could debate or discuss Aboriginal legal issues in a forum that was a little bit more appropriate than the judicial process."

Although in its beginnings the event took the form of a regular moot, with teams competing and appearing before judges, over the years the moot changed, taking on a talking circle-like format, and replacing the judges with faciliators who sit within the circle, Rotman said. The process is less adversarial, he explained, with more emphasis on consensus-building than debate.

"And that's where we're at now, again, more with this consensus-building, talking, sharing, and using that as a basis for looking at the issues as opposed to the traditional common law approach," he said.

"Law students who aren't familiar with mooting in a format other than your traditional judges sitting in front of you at an elevated bench. . .they think it's great. They like the idea that it isn't quite as rigid and that there's an opportunity for the facilitators to assist rather than to make pronouncements, say 'you do this and you do that,' but rather to encourage and facilitate discussion. So it seems to work really, really well," Rotman said.

The facts for this year's moot came from the case Fairford First Nation v. Canada, a reported trial judgment from the federal court trial division. In the case, the Fairford band charged that the federal government had breached its fiduciary duties through its planning, approval and financing of the Fairford Water Control Structure, a dam built in the 1960s to regulate water levels in Lake Manitoba, upstream from the Fairford reserve. Construction of the dam led to flooding of the reserve lands.

The province of Manitoba accepted responsibility for the flooding, and the band and province reached a compensation agreement in 1974, but the federal government refused to ratify the agreement.

The land was eventually transferred to the band as an extension of their reserve lands, but the band was not satisfied with accepting the land as full compensation for losses, and in 1993 filed a statement of claim, arguing that, even though the Manitoba government was responsible for the flooding, the federal government was responsible for the damages, and had repeatedly breached its fiduciary duties to the band.

During the moot, Rotman said, a number of important issues were raised rearding the case.

"One of the big issues that did come up was whether or not provincial governments have fiduciary obligations. That was a big issue. It wasn't raised directly by the case - the case that was being appealed dealt only with the federal government's fiduciary issues - but because it involved a dam project actually constructed by the Manitoba government, but consented to and partially funded by the federal government, the band in question just decided to proceed against the federal government. So it didn't raise the issues of whether or not Manitoba was also responsible, but certainly that issue comes up because Manitoba did have a direct and major role in the construction of the dam, and so certainly people were looking at Manitoba as potentially responsible. The question was, 'well do they also share in the fiduciary duty, or is it only the federal government who has this duty?'"

According to Rotman, the consensus among the participating teams was that the minimum requirement on the part of both the federal and provincial governments was bargaining in good faith.

"If there wasn't actually a fiduciary duty on a province it did, at least, have a duty to act in good faith, was I think the minimum that was agreed to, although a lot of teams did think it was a fiduciary duty," Rotman said. "And the notion of consultation also came up on more than one occasion. Where, in the context of both the fiduciary obligation and the other good faith or other type of duty, was the duty of government to engage in consultation, and what is an appropriate level of consultation? Is it simply advising a band that something was going to be happening? Is it meaningful consultation requirements of consent by the band before anything can go through? Those were some of the larger issues that were raised," Rotman said.

"I think, in my opinion, it was a very successful moot. From all the feedback I heard from people, from the students, from their supervisors, from the facilittors, from observers, everybody seemed to really enjoy it, and thought that it went really, really well," he said.

"The discussion flowed very well, there were a lot of important points that were raised, and people were talking about it over lunch and at breaks. . . it wasn't just people going through the motions. People really seemed to get really wrapped up in the issues, and had an enjoyable time."

Aside from the learning experience, participating in the moot offers students benefit from the social aspect of the event, Rotman explained. During the moot, participants got a chance to renew old friendships and form new ones, and get to know what's going on with people at different law schools across the country.

"I think in a lot of ways there's a strong sense of empowerment that comes from the moot," Rotman said. "A lot of times, Aboriginal students feel as an insulated minority in a law school context, because there aren't usually a lot of Aboriginal students in the student body. The percentage of Aboriginal students is usually quite low compared to the non-Aboriginal student body, so I think here's a situation where people can also share experiences. . . a chance to come together and see and compare."

"It's also an opportunity, I think, for the students to see that it is possible to incorporate or combine Aboriginal traditions and common-law traditions and to be able to work them together in a way such that it is possible to have meaningful discussion of important issues; and to be able to, if not actually resolve them, to strive towards that in a way that seems more appropriate.

"More appropriate given the nature of the issues, given the political element of the issues, the social element, as opposed to just the strictly legal. These aren't strictly legal issues. Sometimes it seems as if they're much better dealt with in an environment that's more conciliatory, and that isn't quite so stark and legalistic. . . I think the students really do see that, and t