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Kawaskimhon National Aboriginal Moot 2017

Submitted by amabel on Fri, 10/28/2016 - 1:19pm

Kawaskimhon logoThe Faculty of Law at the University of Calgary is pleased to host the 23rd annual gathering of the

Kawaskimhon National Aboriginal Moot

March 9 - 12, 2017

Seventeen law schools from across Canada have been invited to participate in the Kawaskimhon National Aboriginal Moot, which will be hosted in 2017 by the Faculty of Law at the University of Calgary.

The Faculty of Law at the University of Calgary is especially proud to be hosting the Kawaskimhon National Aboriginal Moot as we are celebrating our law school's 40th anniversary. At the same time, the University of Calgary is celebrating its 50th anniversary. Find out more about our Ruby (40th) Anniversary.

History of the Moot

The Kawaskimhon National Aboriginal Moot is unique among moot court competitions in the world, in that it is conducted in accordance with Aboriginal customs of peaceful negotiation and consensus-building rather than adversarial competition. The first Kawaskimhon Moot was held in 1994 at the University of Toronto by The Native Law Students Association of the University of Toronto. Kawaskimhon is a word of Cree origin which can be translated as "speaking with knowledge". Formally established in 1995 on annual basis, the moot has grown rapidly, attracting participation from more and more law schools each year. Presently, around 15 law schools from across Canada participate each year. Each team represents a different party in a complex negotiation concerning Aboriginal law, and works toward consensus with the help of Aboriginal facilitators and an elder. The moot is unique in that it incorporates principles of Indigenous law and uses a talking circle format in an effort to build consensus among participants, rather than an adversarial process.

The format of Kawaskimhon encourages students to bring their unique personal perspectives to bear on a collective problem affecting Aboriginal peoples and to work toward a mutual consensus. There are no competitive awards, but the moot is invaluable in giving Aboriginal students and students interested in Aboriginal law an opportunity to forge bonds with each other and deepen their understanding of Aboriginal legal issues.

The moot takes place over several days. It is hosted by a different law school each year. Teams may represent a variety of parties including (depending on the nature of the problem) specific First Nations, Band Councils, "traditional" chiefs' organizations, the Assembly of First Nations, federal or provincial government or their agencies, labour unions, human rights groups, and non-Aboriginal business or community groups.

Timelines

  • November 15, 2016: Problem distribution, via email to coaches
  • February 17, 2017: Position paper submissions due
  • March 9 - 12, 2017: Kawaskimhon National Aboriginal Moot

Schedule of Events

All Kawaskimhon events will take place at the Faculty of Law at the University of Calgary:

Murray Fraser Hall
2500 University Drive NW
Calgary, AB
Campus map

DOWNLOAD THE DAILY SCHEDULE

Date

Time

Item

Thursday, March 9     5:30 p.m.

Welcome and Opening Ceremonies
Calgary Courts Centre
601 - 5 Street SW (downtown)

Download the full agenda

Friday, March 10 8:30 a.m. Welcome Coffee Service
9 a.m. Session 1
10:30 a.m.     Session 2
12 p.m. Lunch
1 p.m. Session 3
2:45 p.m. Session 4
Saturday, March 11     8:30 a.m. Welcome Coffee Service
9 a.m. Session 5
10:30 a.m. Session 6
12 p.m. Lunch
1 p.m. Session 7
2:45 p.m. Session 9
6 p.m.

Banquet - MacEwan Hall Conference Centre

Download the banquet schedule

Sunday, March 12 8:30 a.m. Welcome Coffee Service
9 a.m. Session 9
10:30 a.m. Session 10
12 p.m.

Closing ceremonies

Download the full agenda

12:30 p.m. Thank you luncheon for participants and coaches

The 2017 Problem

These documents are intended for academic purposes. While related to the current Energy East Pipeline application – this Problem is a simplified and different from the current Energy East Pipeline. These documents should not be taken as legal advice in any fashion.

REVISED Problem for 2017

It is 2017. After the National Energy Board approved the Energy East Pipeline alignment in 2016, TransCanada Pipelines withdrew its application for the Energy East Pipeline in January 2017 citing continued delays and collapsing world oil prices.

Canada has responded to this situation and a new consortium has been organized.  The new pipeline and industry consortium called the Energy East Consortium (EEC) is comprised of a joint venture by First Nation Oil Companies, other oil companies and a Pipeline Operator to construct and operate the EEC’s Energy East Pipeline.

Canada’s Response

  • The Government of Canada (Canada) is proposing an Energy Policy (2017) to achieve energy self-sufficiency by 2025 and a low carbon economy by 2100. In the interim, a key component is the development of national interprovincial energy corridors (Energy Corridors) for energy infrastructure projects including pipelines and electrical transmission lines, in order to:
  • replace existing imported oil in Eastern Canada;
  • obtain access to tidewater for exporting excess oil at world prices; and
  • opening electrical markets in Western Canada, there is a 50% chance that transmission lines by Hydro-Quebec will be constructed along the Ontario sections of the Energy East Corridor.

Canada is prepared to designate Energy Corridors across Canada on a go-forward basis, starting with the Energy East Corridor to the East Coast. Other Energy Corridors will go from Alberta through British Columbia (Energy West) and to the Mackenzie Delta in the North (Energy North) at a later date with the alignment to be determined by the National Energy Board (NEB).

Canada intends to pass legislation, the Energy Corridor Legislation declaring these Energy Corridors as “Works…for the general Advantage of Canada” subject to Federal jurisdiction pursuant to section 92 (10) of the Constitution Act, 1867. The policy behind Energy Corridors, is for the purposes of this Problem, a “valid and compelling legislative objective” that justifies infringing aboriginal rights under section 35 of the Constitution Act, 1982.

These Energy Corridors will transit Indian Reserves, surrendered lands not taken up by the Crown over which First Nations have Treaty Rights, Crown and private lands to which First Nations and Métis have access to exercise aboriginal rights including Treaty Rights, First Nation and Métis traditional territory and lands claimed under aboriginal title. The construction and operation of infrastructure in these Energy Corridors will impact constitutionally protected aboriginal rights.

Part I of Problem: Form of Energy Corridor Legislation

Inasmuch as the Federal Court declared in Courtoreille v Canada (Aboriginal Affairs and Northern Development)[1] that Canada has a duty to consult with the Mikisew Cree First Nation when it introduces legislation that had the potential to adversely impact Mikisew’s Treaty rights, Canada will be meeting with Indigenous Groups[2] across Canada, including Indigenous Women’s Group, Urban Aboriginal Groups, Treaty Nations, Coalitions of Chiefs, Métis Groups and other indigenous groups to consult on the form of the Energy Corridor legislation.  

These negotiations are based on current Canadian aboriginal law, including an interpretation of the United Nations Declaration on the Rights of Indigenous People (2007) (UNDRIP)[3] that requires participation in the process of determining how indigenous lands are used but consistent with Canadian jurisprudence in R v Sparrow (1990)[4] that governments can infringe aboriginal rights or title for a justified purpose with proper accommodation and compensation.

The Energy Corridor Legislation will dedicate a 1 km wide corridor for energy transmission infrastructure from the Terminal in Hardisty, Alberta to St. John’s New Brunswick along the NEB’s approved route for the Energy East Pipeline Project as follows

Energy East Corridor 

 Existing length

 3,000

 km

 New Length

 1,500

 km

 Width

 1

 km

 4,500

 Km2

The Energy Corridor Legislation will immediately designate and acquire the Right of Way over the necessary lands to facilitate immediate construction of the EEC’s Energy East Pipeline. For the Problem, the Right of Way acquisition costs are fixed at 10% of the average fair market value acquisition cost[5]  in and next to the Energy Corridors (see Appendix A2) and total $134,095,500.  

Compensation for aboriginal rights will be provided afterwards, as may be negotiated or determined in the absence of agreement. The compensation portions of the Energy Corridor Legislation will be based on the model of the Alberta Surface Rights Act.[6] The definition and mechanisms to determine that compensation in the Energy Corridor legislation are the subjects of consultation. Canada’s policy on creating or designating new reserve lands will be suspended for compensation purposes particularly for replacement territories that may be acquired by Canada in trust for affected aboriginal groups (See Appendix A3).

This could raise issues as to:

  • definition of compensable aboriginal rights in the Energy Corridor Legislation;
  • who will be compensated i.e. standing and on what basis, namely,
  • valuation of aboriginal rights in either replacement territories (land swapping) where they may be exercised or monetary compensation for their loss or any combination of them;
  • valuation of aboriginal title, rights to harvest on traditional territories on surrendered lands not taken up or lands which they may have access to in either replacement territories (land swapping) where they may be exercised or compensation for their loss or any combination of them;
  • the design of a system of tribunals, appeal mechanisms and potential review by the Courts to determine the compensation in absence of an agreement;
  • allocation mechanisms for distribution of interim compensation and final compensation to affected community members and regional groups and future members i.e. trusts;
  • compensation mechanisms in the event of an oil spill; and
  • compensation for the cumulative effects of added infrastructure (once approved by the NEB) on aboriginal rights in the Energy Corridors.

The alignment of the Energy East Corridor mimics the withdrawn TransCanada Energy East Pipeline Application before the NEB.[7] In this Problem the NEB has determined that the most recent alignment as at November 15, 2016 – is the most environmentally responsible alignment and imposes the least impact on aboriginal rights – satisfying the physical accommodation aspect.  Changing the current alignment is not an option but compensation remains to be determined.

As this is an aboriginal moot, the following issues do not form part of the Problem:

  • the constitutionality of the Energy Corridor Legislation as a whole, the compensation mechanisms and measures in that legislation will be influenced by the constitutional protection of aboriginal rights;
  • division of powers under the Constitution including provincial jurisdiction over lands and resources e.g. section 92A of the Constitution Act, 1867;
  • Indian Act, RSC 1985, c I-5 and associated legislation e.g. First Nations Land Management Act, SC 1999, c 24
  • revisions to the National Energy Board legislated processes;
  • representative capacity of groups to bind their members;
  • revisions to the Federal environmental impact assessment procedures;
  • environmental concerns about greenhouse gas emissions, aside from potential future specific impacts on aboriginal rights;
  • issues from the North American Free Trade Agreement (1994); and
  • transitioning to renewable/low carbon energy sources;

Provincial governments will not be included as parties to the negotiations.

Part II: The Grand Bargain

Canada is taking the opportunity of meeting indigenous groups across Canada to consult on the Energy Corridor Legislation but also to negotiate consent to the Energy East Corridor Pipeline to be constructed and operated by the new consortium, Energy East Consortium (EEC).  The EEC will be included in the negotiations.

The EEC’s Energy East Pipeline Proposal would mimic the “withdrawn” TransCanada East Pipeline Application to the NEB. The Pipeline Operator would acquire and assume the operations of the existing TransCanada natural gas pipeline, refit the existing length of 3,000 km and undertake new construction of 1,500 km at a construction cost of $20,000,000,000 USD ($20B USD) to create an oil pipeline with a total capacity of 1,100,000 barrels per day (1.1M barrels per day).  The 1.1M barrels  per day would be dedicated to replacing Canada’s Existing import of 800,000 bbl per day (2010 consumption) and the remainder being exported into the world market.

The price to the consuming industries for Canadian imported oil would be fixed at $50 USD in order to encourage conversion and would remain so as a percentage of World Prices, see: the various Low (current pricing), Medium and High Scenarios below for reference.[8] The licenced exports will be at prevailing World Prices.

 

Revenue

Barrels/day

Low

Med

High

World Oil Price (USD)

50

75

100

Percentage World Price

100%

67%

50%

Canadian Oil Price (USD)

50

50

50

Canadian Imports

 800,000

 40,000,000

 40,000,000

 40,000,000

Exports

 300,000

 15,000,000

 22,500,000

 30,000,000

Total Revenue

 $55,000,000

 $62,500,000

 $70,000,000

The EEC would receive a 20 year pipeline right of way of approximately 35m (including facilities) in the Energy East Corridor for $5M.

The EEC Proposal mimics TransCanada Pipelines withdrawn Energy East Pipeline Proposal[9] but differs in that:

  • the alignment will not traverse urban areas e.g. Ottawa and Montreal although the length and composition of the construction remains unchanged (see Appendix A1);
  • construction costs are fixed at $20 Billion USD with higher financing costs as a result of the downturn in the energy sector;
  • the EEC Proposal modelling is simplified as follows:
  • the pipeline capacity will be fully utilized after construction and be sold into the markets;
  • oil extraction cost, including all taxes is currently $45 USD;
  • oil prices are at the Canadian Price of $45 USD and the current World Oil Price, these prices are uniform and not dependent on composition or terms of supply; and
  • Prices and costs are fixed in U.S. currency and inflation adjusted over time.

Other aspects of TransCanada’s withdrawn Energy East Pipeline Application are comparable specifically including Economic Benefit to Canada, Government Revenues, Employment enumerated in the Conference Board of Canada’s October 2015 Report (CBC)[10] included in the now withdrawn Consolidated Application by TransCanada Pipelines to the NEB however this is a negotiation – not a regulatory process.  Some information will not be disclosed to all parties or be different than TransCanada’s withdrawn Energy East Pipeline Application.

The EEC is proposing to negotiate with Canada and the Indigenous Groups about revenue sharing in the EEC’s Energy East Pipeline Proposal in order to obtain consent to the EEC’s Energy East Pipeline.




[1] 2014 FC 1244 at 99.

[2] Indigenous Peoples living in Canada prefer the name for themselves in their language and are indifferent to the Canadian name accorded to them. Collectively describing the peoples involved remains a problem. Section 35 (2) of Constitution defines “aboriginal peoples” as including “Indian, Inuit and Métis peoples.” In this Problem the terms indigenous and aboriginal are interchangeable.

[3] GA RES/61/295, UNGAOR, 61st Sess Supp No 49 [UNDRIP], online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>.

[4] [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow]

[5] This information has been derived/extracted from Statistics Canada’s CANSIM table  002-0003. Online at: <http://www5.statcan.gc.ca/cansim/a26?lang=eng&id=20003> .

[6] Surface Rights Act, RSA 2000, c S-24 (Surface Rights Act)

[8] The composition of the Oil e.g. resultant products is, for this Problem, irrelevant.

[9] Supra note 7.

The Negotiation Tables

Download the full list of the Negotiation Tables

Download the full list of the facilitators

Table Assignments

There will be 4 Negotiation Tables, divide Regionally as below and Canada and the Energy East Consortium (EEC) will at all the tables as follows:

Table 1 – Prairie Region

  • Canada will be represented by University of Toronto
  • EEC will be represented by the University of New Brunswick

Table 2 – Ontario Region

  • Canada will be represented by the University of British Columbia
  • EEC will be represented by the University of Saskatchewan

Table 3 – Quebec Region

  • Canada will be represented by the University of British Columbia
  • EEC will be represented by the University of New Brunswick

Table 4 – New Brunswick Region

  • Canada will be represented by the University of Toronto
  • EEC will be represented by the University of Saskatchewan

The Indigenous Groups at each Table are described below.


Table 1: Prairie Region

1. Kettle Carrier First Nation – University of Calgary

Referent: Carry the Kettle First Nation

Kettle Carrier is a Treaty 4 band whose reserve has the distinction of being the only Reserve in Canada to be directly crossed by the EEC pipeline. They are a Nakota/Assiniboine band of 2,835 registered Indians, of whom approximately 900 live on-reserve, located nearly one hundred kilometres away from the nearest urban centre.

In addition to passing through KCFN's reserve lands, the pipeline crosses hundreds of miles of territory that the First Nation uses for hunting, fishing, and gathering. They are anticipating a host of effects from this trespass, and are concerned about environmental and socio-economic effects of the project, the routing and land requirements, impacts on their Aboriginal rights, and emergency response planning, among other things.

2. Saskatchewan Métis Nation – University of Windsor

Referent: Métis Nation-Saskatchewan Eastern Region III

The SMN represents Aboriginals within the meaning of the Constitution Act, 1982, s. 35 and within the meaning of a long history of Canadian case law. The proposed project is within Saskatchewan Métis people's traditional territory, where their ancestors practiced commercial based rights and exercised economic power. They not only harvested, but hunted and gathered, fished, trapped, traded, settled and farmed on the land, and still do. There are several settlements within the purview of the SMN and these will all be affected by the proposed pipeline.

Their main concerns are protection of their rights and usage, and the anticipated environmental effects of the project.

3. Native Friendship Centres of Canada – Thompson Rivers University

Referent: Native Friendship Centre, Congress of Aboriginal Peoples

The Native Friendship Centres of Canada advocate for off-reserve Aboriginal peoples and deliver programs on a status-blind basis, that is, equally, regardless of the recipient's legal status. This includes not just off-reserve Band members, but also status and non-status Indians, Métis, Inuit, and other indigenous peoples and their families who reside in urban centres. The core mandate of the NFCC is to assist urban Aboriginal peoples through education, employment training, and social programs. The NFCC also strives to conserve their cultural identity through ceremonies and activities, and is responsible for representing the issues that affect urban Aboriginal peoples to the government and to the public.

Urban Aboriginals represent a mix of identities facing unique challenges in the city and bearing a unique set of rights. They are traditionally underrepresented in politics and underfunded by the federal and provincial government. Recent news articles show that urban Aboriginal populations in Vancouver and in Winnipeg are in crisis. They are consistently underrepresented in federal and provincial services and they do not benefit from the rights base that attends reserve populations. Their concerns with the project include concerns for their home community and attendant infringement of Aboriginal rights, environmental and other concerns, but also a strong socioeconomic element related to their residence and legal status.

4. Aboriginal Women's Assembly of Oil-Producing Provinces: AWAOPP – Osgoode Hall

Referent: New Brunswick Aboriginal Women's Council (NBAWC); New Brunswick Advisory Committee on Violence against Aboriginal Women, Canadian Centre for Policy Alternatives ATP, Nobel Women's Initiative ATP

The AWAOPP represents Aboriginal women, particularly First Nations and Métis women. It is generally viewed as the voice representing Aboriginal women. In the past it has worked to combat violence against Aboriginal women, and has developed long-term, integrated action plans to end such violence. It has also done research and proposed policy on housing, job training, racism, criminal justice, leadership, and a host of other topics that affect Aboriginal women differently.

The AWAOPP is concerned about the external costs of production -- in particular, the impact on existing economic activity, potential impacts due to spills, and impacts on Aboriginal populations associated with climate change impacts.

It knows that women, children and communities directly affect by the oil and gas development deal with a range of economic, health and social impacts, including homelessness, spiralling inflation, respiratory diseases, contaminated water, high levels of cancer, and increased domestic violence. Affordable housing and shelter are often scarce in oilpatch communities reporting high levels of domestic violence. Women disproportionately bear the brunt of these catastrophes. Aboriginal women are further affected when their ceremonial and cultural rights are curtailed by development. The AWAOPP may be interested in looking at renewables and other strategies to wean the government off oil and gas development or it may be interested in working within the existing framework to promote programs in line with its values.

5. Federation of Saskatchewan Treaty Nations – University of Ottawa

Referent: Federation of Saskatchewan Indian Nations

The proposed pipeline passes through Treaty 2 and 4 First Nations in Saskatchewan. Aboriginal peoples of this province have a long history of political activism in response to historical mistreatment of its First Nations: they were hard hit by forced amalgamations and federal mismanagement of oil revenues. FSTN is looking for better treatment this time around.

While the FSTN has contemplated withdrawal from the EEC negotiations, ultimately it is looking to secure a model for compensation that will be beneficial to all 74 Saskatchewan Bands that it represents. Given the province's unique historical background and the potential for natural resource development in the future, the FSTN is seeking to represent the varied interests of Saskatchewan bands while preventing abuse of the many bands whose traditional territories the EEC is set to cross.


Table 2 : Ontario

1. Tall Grass First Nation – University of Calgary

Referent: Grassy Narrows (Asubspeeschoseewagong Netum Anishinabek)

Tall Grass First Nation is a Treaty 3 First Nation located in Ontario and the subject of a recent Supreme Court of Canada ruling. Resource development already present in the area includes large scale forestry operations, and pulp and paper mills. TGFN is concerned with impacts to land and waters that its ancestors have used since time immemorial as the pipeline is projected to cross its traditional territory.

Its concerns include cumulative effects, environmental and health effects, water quality, and infringement of treaty and Aboriginal rights. Given the history of poor consultation and catastrophic environmental impacts of development in the area, TGFN seeks better consultation and accommodation this time around.

2. Ontario Métis Nation – University of Alberta

Referent: Métis Nation-Saskatchewan Eastern Region III; Métis Nation of Ontario

The OMN represents over 18,000 Ontario Métis and is recognized through its framework agreement with the government of Ontario, from whom it receives operational funding. The proposed project traverses Ontario Métis people's traditional territory, including the Northwest, Northshore, Abitibi-Temiskaming and Mattawa/Nipissing regions. In addition to harvesting rights secured through an agreement with the Ontario government, Ontario Métis asset commercial and water-use rights and may have outstanding land-related claims.

Their main concerns are protection of their rights and usage, and the anticipated environmental effects of the project.

OMN has had a controversial relationship with the provincial government in the past, in relation to legislation passed in respect of it.

3. Aboriginal Peoples of Ontario – Thompson Rivers University

Referent: Native Friendship Centre, Ontario Coalition of Aboriginal Peoples

The Aboriginal Peoples of Ontario is an advocacy organization that seeks to advance the rights of Métis, Non-Status, Inuit, Status and other indigenous peoples living off-reserve. The core mandate of the APO is to assist urban Aboriginal peoples through education, employment training, and social programs. The APO also strives to conserve their cultural identity through ceremonies and activities, and is responsible for representing the issues that affect urban Aboriginal peoples to the government and to the public.

Urban Aboriginal peoples represent a mix of identities facing unique challenges in the city and bearing a unique set of rights. They are traditionally underrepresented in politics and underfunded by the federal and provincial government. Recent news articles show that urban Aboriginal populations in many Canadian cities are in crisis. They are consistently underrepresented in federal and provincial services. Their concerns with the project include concerns for their home community and attendant infringement of Aboriginal rights, environmental and other concerns, but also a strong socioeconomic element related to their residence and legal status.

4. Ontario Native Women's Assembly – University of Victoria

Referent: New Brunswick Aboriginal Women's Council (NBAWC); New Brunswick Advisory Committee on Violence against Aboriginal Women, Canadian Centre for Policy Alternatives ATP, Nobel Women's Initiative ATP

The ONWA represents Aboriginal women, particularly First Nations and Métis women. It is generally viewed as the voice representing Aboriginal women. In the past it has worked to combat violence against Aboriginal women, and has developed long-term, integrated action plans to end such violence. It has also done research and proposed policy on housing, job training, racism, criminal justice, leadership, and a host of other topics that affect Aboriginal women differently.

The ONWA is concerned about the external costs of production -- in particular, the impact on existing economic activity, potential impacts due to spills, and impacts on Aboriginal populations associated with climate change impacts.

It knows that women, children and communities directly affect by the oil and gas development deal with a range of economic, health and social impacts, including homelessness, spiralling inflation, respiratory diseases, contaminated water, high levels of cancer, and increased domestic violence. Affordable housing and shelter are often scarce in oilpatch communities reporting high levels of domestic violence. Women disproportionately bear the brunt of these catastrophes. Aboriginal women are further affected when their ceremonial and cultural rights are curtailed by development. The ONWA may be interested in looking at renewables and other strategies to wean the government off oil and gas development or it may be interested in working within the existing framework to promote programs in line with its values.

5. Ontario Federation of Chiefs – Dalhousie University

Referent: Chiefs of Ontario; Grand Council Treaty 3

Ontario Federation of Chiefs (OFC) is an advocacy forum and secretariat for collective decision-making, action, and advocacy for the 133 First Nations communities located in Ontario. Guided by the Chiefs in Assembly, and upholds self-determination efforts of the Anishinaabek, Mushkegowuk, Onkwehon:we, and Lenape Peoples in protecting and exercising their inherent and Treaty rights. The OFC have called for direct consultation by the EEC in accordance with Ontario Indigenous Resource law. Their main concerns are protection of their rights and usage, and the anticipated environmental effects of the project.


Table 3 : Quebec

1. Council of Mohawk Nations– McGill

Referent: Mohawk Council of Kanehsatà:ke and Mohawk Council of Kahnawá:ke:

The Council of Mowhawk Nations represents the traditionally Iroquoian-speaking Mohawk nation with a Reserve on the south shore of the St. Lawrence River across from Montreal, a settlement on the shore of the Lake of Two Mountains near Montreal and the Doncaster Indian Reserve with a total population of 12,926. Their concerns include environmental impacts of the project including, among others, archaeological site, species at risk, wetlands and economic benefits for their members including potential employment of Mowhawk iron workers on the pipeline and other benefits.

2. Métis Nation of Quebec – University of Alberta

Referent: Quebec Métis Nation

The Métis Nation of Quebec (MNQ) represents persons who self-identify as Métis and are accepted as such in their communities in Quebec. The MNQ has had a controversial position within the Métis National Council. The project will pass through Métis Traditional territories, particularly in the Bas St. Laurent Region (III) and the Gaspe Region (XI). These traditional territories overlap a number of First Nations. Their concerns include environmental impacts of the project and economic benefits for their members including potential employment on the pipeline and other benefits.

3. Windotte First Nation – Queens University

Referent: Huron-Wendatte

This community, located just outside Quebec City, has a total population of approximately 4,000 members, 1500 of whom live on-reserve. The community has concerns about the impacts on their archeological heritage as well as the environmental impacts on local fauna, including species at risk. The pipeline traverses traditional WFN territory, at the very heart of the culture and identity of the Windotte. WFN are demanding inclusion of strict terms governing damages, losses and infringement on their Aboriginal rights and treaty issues that arise as a result of the EEC.

The Windotte have related settlements in the United States.

4. Native Friendship Centres of Canada – University of Manitoba

Referent: Native Friendship Centre, Congress of Aboriginal Peoples

The Native Friendship Centres of Canada deliver programs on a status-blind basis, that is, equally, regardless of the recipient's legal status. This includes not just off-reserve Band members, but also status and non-status Indians, Métis, Inuit, and other indigenous peoples and their families who reside in urban centres. The core mandate of the NFCC is to assist urban Aboriginal peoples through education, employment training, and social programs. The NFCC also strives to conserve their cultural identity through ceremonies and activities, and is responsible for representing the issues that affect urban Aboriginal peoples to the government and to the public.

Urban Aboriginals represent a mix of identities facing unique challenges in the city and bearing a unique set of rights. They are traditionally underrepresented in politics and underfunded by the federal and provincial government. Recent news articles show that urban Aboriginal populations in Vancouver and in Winnipeg are in crisis. They are consistently underrepresented in federal and provincial services and they do not benefit from the rights base that attends reserve populations. Their concerns with the project include concerns for their home community and attendant infringement of Aboriginal rights, environmental and other concerns, but also a strong socioeconomic element related to their residence and legal status.


Table 4 : New Brunswick

1. Chiefs of New Brunswick (ACNB) – Western University

Referent: Assembly of First Nation Chiefs of New Brunswick

The CNB is authorized to represent many, but not all, of the affected Indian Bands in New Brunswick, with the exception of Big Bay First Nation, the most populous in New Brunswick. Big Bay withdrew its support after consultation began.

The CNB is concerned with the procedure and transparency of the EEC. It is concerned about environmental effects, including those on fisheries and waterways, and wishes to see economic and business opportunities developed for its members.

2. Acadian Aboriginal Peoples Council – University of Windsor

Referent: New Brunswick Aboriginal Peoples Council

The AAPC advocates for a population of 28,000+ and Non-Status Indians in New Brunswick. They represent off-reserve Band members, status and non-status Indians, Métis, Inuit, and other indigenous peoples and their families who reside in urban centres, and are seeking to strengthen their political voice. Urban Aboriginal peoples are traditionally underrepresented in politics and underfunded by the federal and provincial government.

In this negotiation the AAPC sees the opportunity to develop recognition of off-reserve peoples' rights. These rights begin but do not end with the land. Self-government is a priority for AAPC and they seek jurisdiction over resources, education health and social services. The AAPC also strives to grow and evolve their cultural identity through ceremonies and activities, and is responsible for representing the issues that affect urban Aboriginal peoples to the government and to the public.

The EEC will cross hundreds of kilometres of unceded territory of its members' ancestors. The AAPC is concerned that its members Aboriginal title, rights and treaty rights will be impacted and about securing opportunities for its members in the future.

3. Big Bay First Nation – Lakehead University

Referent: Elsipogtog First Nation

The Big Bay First Nation is the most populous Nation in New Brunswick, with 1,990 members, or 17% of the province's registered Indians. The Traditional Territory of Big Bay may be impacted by the cumulative effects of the proposed pipeline, which would affect its traditional land use practices and way of life. Specifically, it is concerned about its food, ceremonial and social fishery in the Gulf of St. Lawrence and its commercial fishery and fish plant – the largest First Nations-owned fishing operation in the province.

Big Bay also has concerns about its migratory pattern, which includes an annual voyage into the Gulf of St. Lawrence, up various rivers, and into the Bay of Fundy. It uses the entire province for hunting, fishing and gathering. As a First Nation of New Brunswick it is the beneficiary of successes in landmark Supreme Court cases guaranteeing its right to harvest and cut timber.

Big Bay, formerly represented in the negotiations as part of the Assembly of Chiefs of New Brunswick, withdrew its participation in the ACNB early in the negotiations and is now representing itself.

4. Aboriginal Women's Assembly of New Brunswick – Osgoode Hall

Referent: New Brunswick Aboriginal Women's Council (NBAWC); New Brunswick Advisory Committee on Violence against Aboriginal Women, Canadian Centre for Policy Alternatives ATP, Nobel Women's Initiative ATP

The AWANB represents Aboriginal women, particularly First Nations and Métis women. It is generally viewed as the voice representing Aboriginal women. In the past it has worked to combat violence against Aboriginal women, and has developed long-term, integrated action plans to end such violence. It has also done research and proposed policy on housing, job training, racism, criminal justice, leadership, and a host of other topics that affect Aboriginal women differently.

The AWANB is concerned about the external costs of production -- in particular, the impact on existing economic activity, potential impacts due to spills, and impacts on Aboriginal populations associated with climate change impacts.

It knows that women, children and communities directly affect by the oil and gas development deal with a range of economic, health and social impacts, including homelessness, spiralling inflation, respiratory diseases, contaminated water, high levels of cancer, and increased domestic violence. Affordable housing and shelter are often scarce in oilpatch communities reporting high levels of domestic violence. Women disproportionately bear the brunt of these catastrophes. Aboriginal women are further affected when their ceremonial and cultural rights are curtailed by development. The AWANB may be interested in looking at renewables and other strategies to wean the government off oil and gas development or it may be interested in working within the existing framework to promote programs in line with its values.

Position Papers

Position Papers are due on Friday, February 17, 2017 at 11:59 PM your local time.

Position Papers must be submitted to dklaidla@ucalgary.ca and pegg@ucalgary.ca in both PDF and Word Format. Be aware that we will be providing the Moot Sponsors a memory stick with all of the Position Papers.

All position papers will be forwarded on Saturday, February 18 in multiple e-mails to the Coaches (hopefully in complete Negotiating Tables).

We do not have the ability to post it on the website as that is open to the public.

Accommodations

Accommodations are currently being arranged at the following hotels:

  • On-campus: Hotel Alma
    • Please refer to the group name when reserving your room: Kawaskimhon 2017
    • Phone: 403.220.2588
    • Toll-free: 1.877.498.3203
    • Email: stay@hotelalma.ca
    • Please note that reservation requests need to be called in, faxed or e-mailed to the Reservation department. There is no option currently available for on-line bookings for groups.
    • A major credit card must be provided by each guest to guarantee the reservation. This credit card will only be used for one night’s room and tax should the guest cancel less than 48 hours prior to arrival or fail to arrive for the reservation.
  • Off-campus: Various motels in Motel Village

Getting around Calgary

Things to do in Calgary

Frequently Asked Questions

Question: Are there additional materials for Coaches of the Indigenous Group Clients?
Answer: No. Coaches should have received all of the required material, including:

  • Revised problem for 2017 on the website under The 2017 Problem tab;
  • Client Description for their team(s) and a Referent Group on the website under the Negotiation Tables tab;
  • Coaches Mandate Document, emailed on November 30, 2016; and,
  • Academic Advice Document and Paper, emailed on November 16, 2016 (Sam Adkins and Bryn Gray et al. "Calculating the Incalculable Principles for Compensating Impacts to Aboriginal Title", 54(2) Alta Law Review 351).

As noted in these materials, Coaches play the role of the Client and formulate their instructions based on:

  • institutional knowledge as to what the Referent Group's interested may be;
  • student research of the Referent Group's interests; and,
  • constructive creativity - as the Clients are fictitious.

#2: The recent Federal Court of Appeal decision in Canada (Governor General in Council) v. Courtoreille, 2016 FCA 311 (CanLII) can be disregarded - the parties are voluntarily coming to the Negotiation Table.

#3: The Qualification as to the non-applicability of the Indian Act, RSC I-5 is removed. To the best of my understanding the only Reserve Lands the Energy East Pipeline currently transits is Carry the Kettle First Nation – the referent group Kettle Carrier First Nation is represented by the University of Calgary. The status of Reserve Lands under the Indian Act, is relevant for determining legal or bargaining rights but complications of Land Codes under the First Nation Land Management Act, and other legislation can be disregarded.

#4: For the purposes of the Problem, the modification of the pipeline route to avoid municipal areas does not transit any new Reserve Lands.

#5: The qualification that representative capacity of groups to bind their members is meant to interpreted that parties at the Negotiating Tables cannot directly challenge the representation of another group, i.e. you cannot speak for all the people you represent, but you can contest that groups entitlement to consideration.

#6: Where are the Annexes in the Problem? They do not appear to have made it to the website. They should be there now. Our apologies.

#7: Position papers for Indigenous Groups are 10-20 pages per client, thus Universities sending two teams representing Indigenous Groups can submit two position papers of 10-20 pages each.

#8: Route Maps are in Volume 13 of Energy East's Consolidated Application at:

  • Consolidated Application-Volume 13-Detailed Route Maps-Alberta Segment (link)

  • Consolidated Application-Volume 13-Detailed Route Maps-Prairies Segment (link)

  • Consolidated Application-Volume 13-Detailed Route Maps-Ontario West Segment (link)

  • Consolidated Application-Volume 13-Detailed Route Maps-Northern Ontario Segment (link)

  • Consolidated Application-Volume 13-Detailed Route Maps-North Bay Shortcut Segment (link)

  • Consolidated Application-Volume 13-Detailed Route Maps-Quebec Segment (link)

  • Consolidated Application-Volume 13-Detailed Route Maps-New Brunswick Segment and Laterals (link)

Energy East Pipeline Response to NEB Information Request #3
The decision to drop the Cacouna Energy East marine terminal would not affect the pipeline and facilities between Hardisty, Alberta and Lévis, Québec. Nor will there be any material effect on the portions of the Application describing the pipeline route from the boundary between Québec and New Brunswick to the Energy East tank and marine terminal complex near Saint John, New Brunswick.

See: https://apps.neb-one.gc.ca/REGDOCS/Item/View/2858661

The Amended Application has yet to be submitted to the NEB.

Please do not hesitate to contact the Moot Coordinator, David Laidlaw, by email if you have any additional questions or concerns.

Appendices

Our Sponsors

Special thanks to the following sponsors for their generous support of the 2017 Kawaskimhon National Aboriginal Law Moot

Court of Queen's Bench of Alberta
Court of Queen's Bench of Alberta

law logo

OKT

Rath & Co

Maurice Law

MLT Aikins