A moot of a different stripe

In a change from the usual adversarial nature of competitive moots, students from across Canada negotiated a hypothetical case and came to a consensus. Students made oral submissions to four Aboriginal facilitators who assisted moot participants in reaching a consensus.Earlier this month, more than 30 students representing 11 law schools came together at the Ontario Federation of Indian Friendship Centres in Toronto to submit their arguments at the annual Kawaskimhon National Aboriginal Rights Moot. The moot, which has been held annually since 1994, was hosted this year by Osgoode Hall Law School.
The format of Kawaskimhon, which means "to speak with knowledge," encourages students to bring a unique perspective,
analysis, and understanding of the issues
debated, says Osgoode professor Benjamin J. Richardson.
He says this particular moot is, as far as he knows, the first of its kind in the world. While other countries hold aboriginal moots, they are still competitive in nature.
"They're not by negotiations, they're adversarial. So it is internationally unique," he says. "We've done some research on that and we know there are other moots but they're all typical knock-out, round-robin adversarial, so Canada's really charting a groundbreaking course with this moot."
The moot, sponsored by the Department of Justice Canada and the Law Foundation of Ontario, was held over two days and saw the students, sitting in a large circle, provide oral submissions to four aboriginal facilitators who are ready to assist the participants reach a consensus. At issue was a case loosely based on an actual case concerning a labour relations dispute at a casino located on a native reserve.
Teams were assigned roles such as casino employees, an international labour organization, the casino corporation, and different levels of government. Each presented oral and written submissions. As well, facilitators asked each team to illustrate what the word "consensus" meant to them.
Lori Mishibinijima, president of the Osgoode Indigenous Students Assoc-iation and member of the school's moot team, said she really enjoyed the experience of both planning and participating in the moot.
"It was great. The moot itself, the facilitators did a really good job of guiding us, and just to see the end result after all these months of planning was really fulfilling," she says.
"Part of our learning this weekend was learning the meaning of consensus and looking at how our decisions and actions affect various parties. This way, I believe, if we bring these skills to our actual careers, I think it would offer an important value when working with other groups, especially if you're working in aboriginal law."
Richardson agrees and says the moot also provides a unique opportunity for aboriginal students especially — about two-thirds of participants were aboriginal — to come together.
"Apart from just skill development, it creates solidarity and networking among the participants. Aboriginal students often feel isolated, they are a small minority in a law school with hundreds of other students, and these national events can bring students with likeminded interests and values together and help for the basis of future professional ties," he says.
Osgoode student Jonathan Davey, who helped plan the event, said the unique set-up of the moot as well as the issues discussed were a refreshing change from the traditional advocacy skills taught at law school.
"That's important for me because it does offer something that's an alternative to what we're accustomed to studying as law students. Furthermore, because it deals with aboriginal rights, which is an area of law I think should be explored more fully and should be appreciated for the depth and complexity that it has in the Canadian legal system."
Both Davey and Richardson say the two-day event became emotional at times, as participants shared their life experiences.
"At the end of it, like a lot of moots I've been to, there were a lot of happy tears," says Richardson. "They get very personal and emotional and they start to talk about their own experiences that might have a bearing on the moot — things of injustice and struggle. It creates a feeling of solidarity and harmony."
Davey said on the second day of the moot, facilitators posed questions to each party to bring out the different points in arguments to show commonalities and differences and guide the groups in working those similarities and differences out in the negotiations.
He says personal feelings sometimes conflicted with professional attitudes but overall the students learned to present their submissions in a way that catered to the circle as opposed to just the stakeholders they represented.
"A lot of students really did their best to maintain the position of their client, as opposed to their personal position, which was very tough for some students. The consensus that was reached was essentially an appreciation, not only for the format but also for the stakeholders."

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