The tricksters speak: Klooscap and Wesakechak, indigenous law, and the new Brunswick land use negotiation.

• Author: Ulrich, Lara
• Position: Canada - Moving from the Why to the How of Indigenous Law

In 2015, the University of New Brunswick hosted the Kawaskimhon Talking Circle Moot. The moot problem was based on the case of Buctouche First Nation v. New Brunswick. The applicant First Nation applied to the courts for an injunction opposing the New Brunswick government's forest strategy. The forest strategy increased the annual harvesting of softwood timber while reducing the area of Crown-protected conservation forest.

Participants were assigned clients and asked to represent these clients' interests and perspectives. This article presents the argument made on behalf of the Council of Traditional Elders and Chiefs of the Mi'kmaq peoples. Their interests consist of protecting the traditional lands of the Mi'kmaq people while recognizing that the Mi'kmaq have a legal duty to the forests upon which they depend. The argument is presented as a dialogue between two Indigenous tricksters--Klooscap (a Mi'kmaq trickster) and Wesakechak (a Cree trickster). The tricksters advance their position using Mi'kmaq law. In particular, the tricksters focus on the environmental and constitutional principle of netukulimk. Netukulimk is a theory of sustainability that is offered as an alternative framework to the colonial laws that currently dominate Canadian Aboriginal legal issues. The use of Mi'kmaq law presents opportunities for self-governance by recognizing and applying Mi'kmaq legal obligations to the natural world.

This article concludes with a brief commentary on the application of Indigenous law in this fictionalized context and its future as an influence on and alternative to Canadian Aboriginal law.

Le concours de plaidoirie Kawaskimhon fut tenu en 2015 a l'Universite du Nouveau-Brunswick. La trame factuelle s'inspirait d'une affaire reelle: Buctouche First Nation v. New Brunswick. La Premiere nation requerante appliquait aux tribunaux pour obtenir une injonction opposant la strategie forestiere du gouvernement du Nouveau-Brunswick ayant augmente la recolte annuelle de bois d'oeuvre et reduit la superficie des aires de conservation forestieres protegees de la Couronne.

Les etudiants se virent assignes des clients qu'ils devaient representer en prenant en compte les interets et perspectives propres a ces clients. Notre article presente l'argument du Conseil des Aines et des chefs des peuples Mi'kmaq. Leurs interets consistent a proteger les terres traditionnelles des peuples Mi'kmaq et reconnaitre que les Mi'kmaq ont une obligation legale envers les forets dont ils dependent. L'argument est presente sous forme de dialogue entre deux tricksters autochtones : Klooscap (un trickster Mi'kmaq) et Wesakechak (un trickster Cri). Les tricksters avancent leur position en faisant appel au droit Mi'kmaq. Ils se concentrent en particulier sur le principe environnemental et constitutionnel netukulimk. Netukulimk est une theorie de la durabilite offerte comme cadre alternatif aux lois coloniales qui ont domine jusqu'a date les questions juridiques autochtones canadiennes. L'utilisation du droit Mi'kmaq presente des possibilites d'auto-gouvernance en reconnaissant et mettant en pratique les obligations legales Mi'kmaq envers le monde naturel.

L'article se termine par un bref commentaire des auteurs sur l'application du droit autochtone dans ce contexte fictif et son futur en droit autochtone canadien.

Introduction

1. Klooscap and Wesakechak Speak

   Conclusion

   Appendix: Legal Precedent

   Introduction

   The Kawaskimhon Talking Circle Moot is an annual moot for Canadian law students. Founded in 1993 by the Native Law Students' Association at the University of Toronto, (1) it is hosted each year by rotating law faculties. Kawaskimhon means "speaking with knowledge." (2) The Kawaskimhon Moot is structured as a negotiation that allows students to come together and discuss contemporary legal and social issues facing Indigenous peoples in Canada. The moot itself is non-competitive--there is no winner. (3) Instead, students are encouraged to reach a collective resolution through negotiation and collaboration.

   The University of New Brunswick Faculty of Law hosted the 2015 Kawaskimhon Moot. Held over three days, there were four separate groups with each group consisting of approximately four to five moot teams. Each team represented specific goals or perspectives of a particular client.

   The 2015 moot problem was based on a series of facts drawn from the case of Buctouche First Nation v. New Brunswick: (4) This case arose from the New Brunswick government's March 2014 adoption of a new forest strategy. The forest strategy, amongst other things, increased the annual harvesting of softwood timber by twenty-one per cent, and reduced the area of Crown-protected conservation forest by seven per cent. In response to the adoption of this strategy, New Brunswick First Nations groups commenced litigation, seeking an injunction from the courts.

   Students were given a moot problem that adopted and extended the facts of this case. In the fictional extrapolation (as in the real-life case) the province intended to adopt a new forest strategy that severely affected the traditional lands of the Mi'kmaq and Wolastoqiyik. Within each group, the negotiation developed around a single scenario. The Crown was proposing to enter into negotiations with Aboriginal peoples in a "duty to consult" style negotiation regarding the new forest strategy. (5) There were, however, limited seats at the negotiation table with the Crown. Students were required to negotiate amongst themselves to determine which Aboriginal group or association could best represent the interests of all Aboriginal peoples in the traditional lands at stake.

   What follows is the argument, reflection, and methodology used by the University of Victoria for their clients--the Council of Traditional Chiefs and Elders. Although both authors are Indigenous, neither are Mi'kmaq or Wolastoqiyik. Neither had any experience working with Mi'kmaq law or practice prior to the moot.

   This article is broken into three related sections. Part I--the core of the article--is a dialogue between two Indigenous tricksters, Klooscap and Wesakechak. Val Napoleon considers tricksters to be the original Indigenous lawyers (6)--they are often the ones to model, question, and transform legal principles in the stories in which they are featured. John Borrows observes that "[c]onflict and differentiation are firmly rooted within [trickster stories], thus providing access to creative and innovative ways of recalibrating regulatory and adjudicatory decisions.'" (7) Tricksters disrupt and question the established social order, a role that we felt fit very well with our aspirations as Indigenous lawyers. We chose Klooscap because he is the main trickster figure in Mi'kmaq stories, and the best situated to understand Mi'kmaq law. We introduced Wesakechak--a Cree trickster figure with whom we were more comfortable and familiar--to represent an outside perspective, which enabled him to critique and comment on Klooscap's arguments and to reflect our own feelings as outsiders. We structured the submission as a dialogue because of the central importance of "talking it out" and fostering consensus in the operation of Mi'kmaq law. (8) The dialogue structure was also an apt expression of the meaning of the word kawaskimhon itself: "speaking with knowledge." (9)

   The Conclusion provides an outline of our process in developing the dialogue and engaging with Indigenous law. It also describes how the dialogue was used and received at the Kawaskimhon moot.

   Finally, we include an Appendix that contains synopses of the Mi'kmaq stories that we relied on as legal precedent in developing the dialogue. We included these stories because it is important that readers are able to refer to the stories in order to critically evaluate our interpretations of the stories and the arguments that we derived from them. The stories, unlike much Canadian legislation and case law, are not readily available online. We included this section to bridge that gap.

1. Klooscap and Wesakechak Speak KLOOSCAP (10)

   Our people, the Mi'kmaq, face a new threat. Our forests, land, and their future sustainability face potential harm from a plan proposed by the New Brunswick government to harvest the forests throughout the Mi'kma'ki. (11) The settler people of New Brunswick are experiencing a time of nutqw, or insufficiency. They want to address this insufficiency by drawing on the bounty of the forest nation. I fear that they lack the wisdom and the expertise required to harvest the forest responsibly. Like "The Man Who Hated Winter", (12) they risk bringing hardship on all of us in their prideful attempt to save themselves from discomfort.

   They are behaving like Kopit (13) in the days when he was too broad and fat to live in harmony with the land. He built so many dams that he created great floods and displaced our people. (14) They think that they can ignore the consequences of disrupting the ecological balance of Mi'kma'ki.

   We know, however, that the permanent destruction of our forest lands will harm the communities. The destruction threatens netukulimk (15) as well as the safety and well-being of the people. Like Kopit, they have learned that many of our people will take action to stop a threat to our sustainable life. I smashed Kopit's dams and hunted him down to ensure that he would not harm us in the future. (16) The settlers of New Brunswick have come to us asking to negotiate an end to our conflict and to facilitate the sharing of the forest harvest under our shared teplutakn--the treaties of peace and friendship that form the basis of our relationship. The settlers' treaty obligation requires them to consult us before taking further action. They want us to decide amongst ourselves whom we will send to represent our laws and protect our people. It is not clear at this point whom we will choose to send to talk to the settler representatives. Many of our wikamowi, or...